Appendix — Cohen v. Office Depot, Inc.

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APPENDIX A - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FILED AUGUST 19, 1999

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-4787

D.C. Docket No. 97-3 611 -Civ-JAL

CHERYL COHEN, on behalf of herself and

others similarly situated,

Plaintiff-Appellant,

versus

OFFICE DEPOT, INC., a Florida corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(August 17, 1999)

Before BIRCH and CARNES, Circuit Judges, and MILLS*,

Senior District Judge.

CARNES, Circuit Judge:

*Honorable Richard Mills, Senior U.S. District Judge for the

Central District of Illinois, sitting by designation.

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Cheryl Cohen appeals the district court's dismissal of

her Florida state law deceptive advertising suit against Office

Depot. The district court struck Cohen's prayer for punitive

damages from her complaint for failure to comply with a

Florida statute requiring a plaintiff to obtain leave of court

before requesting punitive damages. Finding that the other

relief Cohen requested did not satisfy the amount-in-

controversy requirement for diversity jurisdiction, the court

dismissed her suit on junsdictional grounds. For the reasons

set forth below, we reverse.

I. BACKGROUND

A: FACTS

Cohen's complaint alleges that Office Depot made

representations and statements in its catalogues which led

"customers to believe that Office Depot's prices for

merchandise in its catalog will be as low, if not lower, than the

prices of identical merc’sandise purchased from any other office

supply store, including Office Depot's own stores[,]" when "[i]n

fact, Office Depot's catalog prices are often significantly higher

than the price of the same item in the Office Depot stores."

The complaint also alleges that Cohen relied upon such

advertisements in the Fall 1997 catalogue when she purchased

by phone a color cartridge for $26.99 and file folder labels for

$1.99. When those items were subsequently delivered, the

accompanying invoice reflected no delivery charges in the price

of the items. A few days later, Cohen went into an Office

Depot store and saw the same cartridge priced at $2.00 less,

and the same labels priced at $0.30 less, than their prices in the

catalogue. An Office Depot spokesman allegedly admitted to

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a newspaper that the claim of free delivery was false when the

spokesman explained the difference between the store and

catalogue prices by saying, "It is certainly not uncommon that

catalog pricing would be a little higher because of providing

free delivery."

B. PROCEDURAL HISTORY

On November 12, 1997, Cohen filed a complaint in

federal district court on behalf of herself and a proposed

nationwide class of approximately 39,000 Office Depot

customers, alleging that Office Depot had made deceptive

statements regarding the pricing of its merchandise in violation

of the Florida laws governing unfair and deceptive trade

practices, fraud, and misleading and negligent advertising. In

addition to compensatory damages, the complaint sought

$10,000,000.00 in punitive damages, an injunction prohibiting

deceptive advertising in the future, attorney fees, and costs.

Because no violation of federal law was alleged, subject matter

jurisdiction was founded solely upon diversity of citizenship

under 28 U.S.C. § 1332.

Office Depot moved to strike the punitive damages

request from the complaint and dismiss the lawsuit. The court

granted the motion to strike the punitive damages request on,

the ground that Cohen had failed to comply with Florida

Statutes § 768.72, which requires a plaintiff to obtain leave

from the court before including a prayer for punitive damages

in a pleading. The court then determined that the other relief

requested by Cohen failed to meet the $75,000 amount-in-

controversy requirement for diversity jurisdiction.

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Accordingly, the court granted Office Depot's motion to

dismiss Cohen's suit for lack of subject matter jurisdiction.’

II. DISCUSSION

The issue on appeal is whether the district court erred

in concluding that Cohen had not met the $75,000 amount-in-

controversy requirement for diversity jurisdiction. For diversity

cases originally brought in federal court, the amount in

controversy is simply the sum claimed in the plaintiff's

complaint, "if the claim is apparently made in good faith. It

must appear to a legal certainty that the claim is really for less

than the jurisdictional amount to justify dismissal." St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58

S. Ct. 586, 590 (1938). |

Cohen argues that her requests for punitive damages,

attorney fees, and injunctive relief, taken individually or

together, satisfy the amount-in-controversy requirement and

establish diversity jurisdiction. Because we conclude that her

request for punitive damages alone is sufficient for

jurisdictional purposes, we need not consider whether the other

relief she requests would suffice.

The Supreme Court has held that "[WJhere both actual

and punitive damages are recoverable under a complaint[,] each

must be considered to the extent claimed in determining

jurisdictional amount." Bell v. Preferred Life Assur. Soc. of

Montgomery, Alabama, 320 U.S. 238, 240, 64 S. Ct. 5, 6

' The court subsequently clarified that the dismissal

was without prejudice.

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(1943). Here, Cohen requests $10,000,000 in punitive

damages, which is obviously greater than the amount-in-

controversy threshold of $75,000. It is undisputed that under

state law Cohen would be entitled to an unspecified amount of

punitive damages on two of her ciaims if she is successful.

Under our holding in Tapscott v. MS Dealer Service

Corporation, 77 F.3d 1353, 1358-59 (11th Cir. 1996), in aclass

action lawsuit punitive damages may be aggregated to satisfy

the amount-in-controversy requirement for each class member.

To be sure, Tapscott involved Alabama law, not Florida law,

and it did not establish a broad rule that all punitive damages

claims may be aggregated for purposes of determining the

amount in controversy. Tapscott did hold, however, that

punitive damages may be aggregated where state law provides

that an award of punitive damages is for the "public benefit" or

"collective good," and the award would reflect "the

wrongfulness of the defendant's course of conduct as a

whole."Tapscott, 77 F.3d at 1358.

Those conditions are met in this case. Because Florida

law, like Alabama law, provides that "punitive damages are

warranted only where the egregious wrongdoing of the

defendant ... constitutes a public wrong," ler Corp. v.

Wolmer, 499 So. 2d 823, 825 (Fla. 1986), awarding punitive

damages is for the public benefit or collective good. Likewise,

as in Tapscott, 77 F.3d at 1358-59, the award of punitive

damages will reflect not the wrong done to any single

individual but the wrongfulness of the conduct as a whole.

Accordingly, under Tapscott, punitive damages, in this

Florida diversity case may be aggregated to satisfy the amount-

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in-controversy requirement for each class member. But that

can occur only if Cohen is permitted to assert her request for

punitive damages. The district court struck Cohen's prayer for

punitive damages, because she failed to comply with the

conditions for seeking punitive damages set forth in Florida

Statutes § 768.72. Section 768.72 provides as follows:

In any civil action, no claim for punitive

damages shall be permitted unless there is a

reasonable showing by evidence in the record or

proffered by the claimant which would provide

a reasonable basis for recovery of such

damages. The claimant may move to amend

her or his complaint to assert a claim for

punitive damages as allowed by the zules of

civil procedure. The rules of civil procedure

shall be liberally construed so as to allow the

claimant discovery of evidence which appears

reasonably calculated to lead to admissible

evidence on the issue of punitive damages. No

discovery of financial worth shall proceed until

after the pleading concerning punitive damages

is permitted.

Cohen argues that she satisfied the requirements of §

768.72 because she proffered evidence of malice and wanton

and reckless conduct sufficient to establish a reasonable basis

for her punitive damages claim. How cver, the Florida Supreme

Court has interpreted § 768.72 as requiring the dismissal of any

request for punitive damages asserted without leave of the

court. See Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla.

1996) (concluding "[i]t was inconsequential that the trial court

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.. held a hearing" to determine whether there was an

evidentiary basis for a punitive damages claim stated in the

initial complaint, because under the statute "any punitive

damages claim alleged prior to a party asking for and receiving

leave of the court must be dismissed or stricken."). See also |

WFTY, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. Sth Dist. Ct. |

App., 1998); Mayer v. Frank, 659 So. 2d 1254, 1255 (Fla. 4th

Dist. Ct. App. 1995). |

Thus, if § 768.72 applies in this case, the district court

correctly struck the request for punitive damages from Cohen's

complaint, which means that request could not provide a basis

for federal diversity jurisdiction. If, on the other hand, § 768.72

does not apply, then the request for punitive d ages should not

have been struck, and would provide a sufficient basis to satisfy

the amount-in-controversy requirement for diversity

jurisdiction. Accordingly, we must determine whether the

pleading requirements of § 768.72 apply here, which entails

resolving whether they conflict with any Federal Rule of Civil

Procedure.’

Federal courts sitting in diversity are required to apply

state substantive law and federal procedural law. See Ene R.

Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822 (1938);

Lundgren v. McDaniel, 814 F.2d 600, 605 (11th Cir. 1987).

The distinction between substance and procedure is often

elusive, however, and the Supreme Court struggled for years to

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delineate it. In Guaranty Trust Co. of New York v. York, 326

2 We recognize that § 768.72 contains a discovery

component as well as a pleading component, however, its

discovery provision is not at issue in this case.

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U.S. 99, 109, 65 S. Ct. 1464, 1470 (1945), the Court adopted

an "outcome-determinative" test, meaning that the question of

whether to apply state or federal law in diversity cases should

be resolved so that "the outcome of the litigation in federal

court [would] be substantially the same ... as it would be if tried

in a State court." Realizing that even purely procedural laws

could be outcome-determinative, the Court retreated from the

York test 13 years later in Byrd v. Blue Ridge Rural Electric

Coop., 356 U.S. 525, 78 S. Ct. 893 (1958). That decision held

that in order to decide which rule should apply, courts must

balance the federal interest in uniform process against the state

interest in uniformity of results. See 356 U.S. at 536-40, 78 S.

Ct. at 900-02.

Seven years later, in Hanna v. Plumer, 380 U.S. 460, 85

S. Ct. 1136 (1965), the Court developed a two-part test for

deciding when state law should apply in federal diversity cases.

Under the Hanna test, a court must determine whether the state

law in question directly conflicts with a Federal Rule of Civil

Procedure. If it does, "the court [is] instructed to apply the

Federal rule, and can refuse to do so only if the Advisory

Committee, [the Supreme] Court, and Congress erred in their

prima facie judgment that the Rule in question transgresses

neither the terms of the [Rules] Enabling Act nor constitutional

restrictions." Hanna, 380 US. at 47 1, 85 S. Ct. at 1144.

In addressing the applicability of § 768.72, at least one

district court asked if it is substantive or procedural, and in

answering that question looked to state law decisions

characterizing the provision as substantive for some other

purpose (such as the division of authority between the state

legislature and judiciary). See Teel v. United Techs. Pratt &

ee

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Whitney, 953 F. Supp. 1534,1540 (S.D. Fla. 1997). That

approach jumbles up the questions. Under Hanna, the proper

question to ask is not whether the state law provision is

procedural or substantive; instead, the court must ask whether

the state law provision conflicts with a federal procedural rule.

If it does, the federal procedural rule applies and the state

provision does not. Stated another way, if the state law

conflicts with a federal procedural rule, then the state law is

procedural for Erie/Hanna purposes regardless of how it may be

characterized for other purposes. :

The only exception is where the advisory committee,

the Supreme Court, and Congress have collectively erred and

adopted a federal procedural rule that is either unconstitutional

or should not have been adopted under the Rules Enabling Act

process because it is a matter of substantive law. That

exception will be exceedingly rare, and it does not apply here

because, as we shall see, § 768.72 conflicts with Federal Rule

of Civil Procedure 8(a)(3), which is a procedural rule and is not

unconstitutional. To reiterate the important point that is

sometimes overlooked: where state law conflicts with a federal

rule of procedure, the substance versus procedure question is

asked only about the federal rule, not about the state law

provision. That is the first prong of the Hanna test.

The second prong of the Hanna test comes into play

only if the state law does not conflict with a Federal Rule; if

that is the case, then the court must determine whether failure

to apply the state law would lead to different outcomes in state

and federal court and result in inequitable administration of the

laws or forum shopping. See Hanna, 380 U.S. at 468, 85 S. Ct.

at 1142. But those determinations are not reached where the

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first prong of Hanna applies, i.e., where the state provision

conflicts with a federal rule of procedure.

Applying the Hanna test, federal district courts in

Florida have reached different conclusions about whether §

768.72 applies in diversity cases. Most of the courts to address

the matter agree that § 768.72 implicates Federal Rules of Civil

Procedure 8(a) and 9(g), but they have split almost evenly on

whether the statute actually conflicts with either or both of

those rules. See, e.g., Alexander v. University/Gainesville

Healthcare Ctr., Inc., 17 F. Supp.2d 1291, 1292 (N.D. Fila.

1998) (conflicts with Rule 8(a)); Tutor Time Child Care Sys.,

Inc. v. Franks Inv. Group, Inc., 966 F. Supp. 1188, 1190 (S.D.

Fla. 1997) (conflicts with both Rule 8(a) and Rule 9(g)); Teel,

953 F. Supp. at 1538-41 (no conflict); Sanders v. Mayor's

Jewelers, Inc., 942 F. Supp. 571, 575 (S.D. Fla. 1996) (no

conflict); Al-Site Corp. v. VSI Int'l, Inc., 842 F. Supp. 507, 512

(S.D. Fla. 1993) (no conflict); State of Wisconsin Inv. Bd. v.

Plantation Square Assocs., Ltd., 761 F. Supp. 1569, 1573-80

(S.D. Fla. 1991) (conflicts with Rule 8(a)); Citron v. Armstrong

World Indus., Inc., 721 F. Supp. 1259, 1261-62 (S.D. Fla.

1989) (conflicts with Rule 9(g)).

Cohen argues that § 768.72 conflicts with Federal Rule

of Civil Procedure 8(a)(2) and (a)(3). Rule 8(a) states, "A

pleading which sets forth a claim for relief, whether an original

claim, counterclaim, cross-claim, or third-party claim, shall

contain ... (2) a short and plain statement of the claim showing

that the pleader is entitled to relief, and (3) a demand for

judgment for the relief the pleader seeks."

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Rule 8(a)(2)'s "short and plain statement" rule abandons

traditional pleading formalities, requiring only that the pleading

"give the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests." Conley v. Gibson, 355

U.S. 41, 47, 78 S. Ct. 99, 103 (1957). Cohen argues that

§ 768.72 essentially requires heightened pleading for punitive

damages claims, contrary to the short and plain statement rule

of 8(a)(2). It is clear, however, that a request for punitive

damages is not a "claim" within the meaning of 8(a)(2); it is

only part of the relief prayed for in a claim. Thus, there is no

conflict between § 768.72 and Rule 8(a)(2).

As one district court has pointed out, "the more relevant

portion of Rule 8 appears to be subsection (a)(3)." Teel, 953 F.

Supp. at 1538. We have explained that under Rule 8(a)(3), any

pleading that sets forth a claim must include a "concise

statement identifying the remedies and the parties against

whom relief is sought... ."" Goldsmith v. City of Atmore, 996

F.2d 115 5, 1161 (11th Cir. 1993) (quoting 5 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure § 1255, at

366 (2d ed. 1990)). Punitive damages are a remedy, so under

the rule a request for them should be included in the complaint.

As we noted above, however, § 768.72 prohibits the inclusion

of a request for punitive damages in any pleading without leave

ofcourt. Thus, it appears that § 768.72 does conflict with Rule

8(a)(3).

Office Depot contends that there is no real conflict

between § 768.72 and Rule 8(a)(3) because Federal Rule of

Civil Procedure 54(c) essentially renders Rule 8(a)(3) a nullity.

It is true that Rule 54(c) tempers the effect of Rule 8(a)(3)

somewhat by stating that, except in the case of default

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judgments, "every final judgment shall grant the relief to which

the party in whose favor it is rendered is entitled, even if the

party has not demanded such relief in the party's pleadings."

But we do not view that language of Rule 54(c) as eviscerating

Rule 8(a)(3)'s express and unambiguous direction that the

plaintiff include a demand for relief in her pleadings. "The

demand in fact may be helpful in indicating the relief to which

plaintiff is entitled... In addition, relief that the parties do not

desire should not be forced on them." 10 Wnight, Miller, &

Kane, Federal Practice & Procedure § 2662, at 158-60 (3d ed.

1998). Furthermore, the portion of Rule 54(c) relating to

default judgments provides that where the party against whom

the claim is brought fails to defend against the claim, the relief

awarded in a default judgment "shall not be different in kind

from or exceed in amount that prayed for in the demand for

judgment." Thus, that part of Rule 54 actually reinforces Rule

8(a)(3)'s direction that the relief sought be included it the

complaint.

Even if Rule 8(a)(3) does not require a plaintiff to

include in a complaint a request for all the relief sought, there

is still a conflict between § 768.72 and Rule 8(a)(3), because

the rule clearly allows the plaintiff to include a request for

punitive damages in her initial complaint, whereas § 768.72

prevents her from doing so. A state law may conflict with a

‘Federal Rule even where it violates no affirmative command or

requirement of the rule, see Hanna, 380 US. at 470, 85 S. Ct.

at 1143, if the Federal Rule "occupies the statute's field of

operation." Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7,

107 S. Ct. 967, 970 (1987). See also United States v. Lockheed

Missiles & Space Co., 171 F.3d 1208, 1217 (9th Cir. 1999);

S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60

13a

F.3d 305, 307 (7th Cir. 1995); Exxon CM. v. Burglin, 4211

F.3d 948, 950 n.3 (Sth Cir. 1995); Neifeld v. Steinberg, 438

F.2d 423, 426 (3d Cir. 1971). Rule 8(a)(3) occupies

[§ 768.72's] field of operation," because Rule 8(a)(3) governs

the ability of plaintiffs to request any and all of the relief sought

(including punitive damages) in all pleadings that state a claim

(including initial complaints). If applied in federal court, §

768.72 would impair the operation and effect of Rule 8(a)(3).

The nature of the conflict between § 768.72 and Rule

8(a)(3) is similar to the conflict in Hanna itself. The issue in

that case was whether a Massachusetts law or Federal Rule of

Civil Procedure 4(d)(1) should govern service of process. The

Massachusetts law provided that service could be effected only

"by delivery in hand upon [the] executor or administrator... ."

Hanna, 380 U.S. at 462, 85 S. Ct. at 1139 (quoting Mass. Gen.

Laws ch. 197, § 9 (195 8)). Rule 4(d)(1), on the other hand,

provided that "[s]ervice shall be made ... [u]pon an individual

... by delivering a copy of the summons and of the complaint to

him personally or by leaving copies thereof at his dwelling

house or usual place of abode with some person of suitable age

and discretion then residing therein. ..." Id. at 461, 85 S. Ct.

at 1138-39 (quoting Fed. R. Civ. P. 4(d)(1)) (emphasis added).

Although the express language of Rule 4(d)(1) arguably

could have been viewed as not conflicting with the

Massachusetts law, the Supreme Court concluded that "the

clash [was] unavoidable" because "Rule 4(d)(1) says -

implicitly, but with unmistakable clarity - that inhand service

is not required in federal courts." Id. at 470, 85 S. Ct. at 1143.

Likewise, in this case, because Rule 8(a)(3) allows a plaintiff

to request in her initial complaint all the relief she seeks, it says

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"implicitly, but with unmistakable clarity" that a plaintiff is not

required to wait until a later stage of the litigation to include a

prayer for punitive damages, nor is she required to proffer

evidence or obtain leave of court before doing so. In short,

Rule 8(a)(3) occupies the field in which the pleading portion of

§ 768.72 would otherwise operate, leaving no room for it. The

two provisions do conflict.

Having concluded that Florida Statutes § 768.7 conflicts

with Rule 8(a)(3), we must apply Rule 8(a)(3) unless it

transgresses the Rules Enabling Act or the Constitution. See

id. at 471, 85 S. Ct. at 1144. The Rules Enabling Act, 28

U.S.C. § 2072, provides, in pertinent part:

(a) The Supreme Court shall have the power to

prescribe general rules of practice and

procedure and rules of evidence for cases in the -

United States district courts (including

proceedings before magistrates thereof) and

courts of appeals.

(b) Such rules shall not abridge, enlarge or

modify any substantive right ....

It is clear that a pleading rule such as 8(a)(3) relates to

the "practice and procedure” of the district courts. See, e.g.,

Follenfant v. Rogers, 359 F.2d 30, 31-32 (Sth Cir. 1966)

(matters of pleading are governed by "rules of practice” and

therefore are controlled by the Federal Rules, not state law).

Furthermore, in Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61S.

Ct. 422, 427 (1941),the Supreme Court held that as long as a

Federal Rule "really regulates procedure," it will not be held

I5a

invalid on the ground that it affects substantive rights. As the

Court later explained:

Undoubtedly most alterations of the rules of

practice and procedure may and often do affect

the rights of litigants. Congress’ prohibition of

any alteration of substantive rights of litigants

was obviously not addressed to such incidental

effects as necessarily attend the adoption of the

prescribed new rules of procedure upon the

rights of litigants who, agreeably to rules of

practice and procedure, have been brought

before a court authorized to determine their

nghts.

Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 445, 66 S.

Ct. 242, 246 (1946).

Finally, none of the parties in this case or any other

cases have challenged Rule 8(a)(3) as unconstitutional, and we

see no basis for such a challenge.

Ill. CONCLUSION

Our application of Hanna leads us to conclude that the

pleading component of § 768.72 does not apply in this case due

to its conflict with Rule 8(a)(3). For that reason, we hold that

the pleading requirements of Florida Statutes § 768.72 are

_ inapplicable in federal diversity cases. It follows that Cohen's

request for punitive damages should not have been dismissed

for failure to comply with those requirements. Having

determined that the district court erred in striking Cohen's

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request for punitive damages, and that those damages may

satisfy the amount-in-controversy requirement for diversity

jurisdiction, we do not decide whether the other relief

requested, including attorney fees and injunctive relief, would

be sufficient to meet that requirement.

Accordingly, we REVERSE the district court's

dismissal for lack of subject matter jurisdiction and REMAND

the case for further proceedings consistent with this opinion. ~

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APPENDIX B - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FILED FEBRUARY 24, 2000

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-4787THOMAS K, KAHN

D.C. Docket No. 97-3611 -Civ-JAL

CHERYL COHEN, on behalf of herself and

others similarly situated,

Plaintiff - Appellant,

versus

OFFICE DEPOT, INC., a Florida corporation,

Defendant - Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(February 24, 2000)

ON PETITION FOR REHEARING AND

SUGGESTION OF REHEARING EN BANC

Before BIRCH and CARNES, Circuit Judges, and MILLS",

Senior District Judge..

“Honorable Richard Mills, Senior U.S. District Judge for

Central District of Illinois, sitting by designation.

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CARNES, Circuit Judge:

In our prior opinion in this case, we held that Florida

Statute § 768.72 conflicts with and must yield to the "short and

plain statement" rule contained in Federal Rule of Civil

Procedure 8(a)(3), and as a result a Florida plaintiff in federal

court because of diversity jurisdiction need not obtain leave of

court before pleading a request for punitive damages. Cohen

v. Office Depot Inc., 184 F.3d 1292, 1295 - 99 (11 th Cir.

1999) ("Cohen I"). We adhere to and leave that part of our

earlier opinion intact.’

Relying on Tapscott v. MS Dealer Service Corp., 77

F.3d 1353, 1358-59 (11th Cir. 1996), we also held that "in a

class action lawsuit punitive damages may be aggregated to

satisfy the amount-in-controversy requirement for each class

member," at least "where state law provides that an award of

punitive damages is for the public benefit’ or 'collective good,’

and the award would reflect ‘the wrongfulness of the

defendant's course of conduct as a whole."' Cohen I, 184 F.3d

at 1295 (quoting Tapscott, 77 F.3d at_1358). Combining our

two holdings, we concluded that the complaint satisfied the

amount in controversy requirement because it requested $

10,000,000 in punitive damages for the entire class of

approximately 39,000 Office Depot catalogue customers. See

id. at 1299.

In its petition for rehearing, Office Depct has belatedly

pointed out the tension between the Tapscott decision, on

> For a full recitation of the relevant facts of this case,

see Cohen I, 184 F.3d at 1293-94.

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which we relied in our earlier opinion in this case, and the

decision in Lindsey v. Alabama Telephone Co., 576 F.2d 593

(Sth Cir. 1978). Of course, pre-split or "Old Fifth" decisions

such as Lindsey are binding on us, see Bonner v. City of

Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), and where two

prior panel decisions conflict we are bound to follow the oldest -

one. See United States v. Steele, 147 F.3d 316, 1318 (11th Cir.

1998) (en banc) ("It is the firmly established rule of this circuit

that each succeeding panel is bound by the holding of the first

panel to address issue of law, unless and until that holding is

overruled en banc, or by the Supreme Court.") (internal

quotation marks and citation omitted); United States v. Dailey,

24 F.3d 1323, 1327 (11th Cir. 1994) (where there is an

intracircuit conflict of authority, "the earliest panel opinion

resolving the issue in question binds this circuit until the court

resolves the issue en banc") (internal quotation marks and

citation omitted).

For reasons we will soon discuss, we conclude that

Tapscott's holding about aggregation of punitive damages is

inconsistent with the earlier holding on the same legal issue in

Lindsey, and accordingly we must follow Lindsey. Doing so,

we conclude that the total of $ 10,000,000 in punitive damages

that was pleaded for the class of 39,000 members in this case

is insufficient to satisfy the $75,000 amount in controversy

requirement. This conclusion requires us to address plaintiff,

class-representative Cohen's remaining arguments involving

alternative theories for satisfying the amount in controversy

requirement, which are that it is satisfied because of the value

of the requested injunctive relief, and because of the amount of

attorney fees due if the class prevails. We will discuss those

issues in a later part of this opinion, but we begin with a

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discussion of the inconsistency of Tapscott (and our own prior

opinion following it) with Lindsey.

I. THE CONFLICT BETWEEN LINDSEY AND

TAPSCOTT REGARDING

AGGREGATION OF PUNITIVE DAMAGES

To avoid adding confusion to conflict, we first explain

why referring to the "aggregation" of punitive damages in the

context of a class action can be a bit misleading. In this case,

as in Lindsey and Tapscott the punitive damages claim is a

single claim on behalf of the entire class; it is not the sum total

of 39,000 individual punitive damages claims. Because each

class member could have sought punitive damages in

individual suits, courts sometimes phrase the question as

whether a class claim for punitive damages can be "aggregated"

to satisfy the jurisdictional amount in controversy requirement

for a class. The question, however, is not whether distinct

punitive damages claims can be added together, but instead it

is whether the single punitive damage claim on behalf of the

class can be attributed in toto to each and every class member

so they can individually satisfy the requisite amount in

controversy, a requirement mandated by Zahn v. International

Paper Co., 414 U.S. 291, 94 S. Ct. 50 (1973).* If the single

punitive damages claim cannot be attributed as a whole to each

* Cohen argues that Zahn's holding requiring dismissal

from a class suit of any plaintiff whose individual claim does

not satisfy the amount in controversy requirement has been

superseded by the 1990 amendments to 28 U.S.C. § 1367. As

will be discussed, we need not decide that issue to resolve the

present case. See infra note 13.

2la

class member, it must be allocated or divided pro rata among

the class members, and after that is done the total amount of

relief sought by each plaintiff must satisfy the jurisdictional

amount. With that clarification of the question, we turn to the

conflicting answers of Lindsey and Tapscott.°

Lindsey involved a state law class action suit against

two telephone companies alleged to have unlawfully extracted

excessive cash deposits from the class. See Lindsey, 576 F.2d

at 593. The defendants removed the case to federal court on

diversity grounds. See id. at 593-94. The complaint, as

construed by the Couri, sought: (1) $2,000 compensatory

damages for Lindsey, (2) an unspecified sum of compensatory

damages for the class, which contained an unspecified number

of plaintiffs, and (3) $ 1,000,000 punitive damages on behalf of

the class. See id. at 595.

_ The Lindsey Court began its analysis by citing Snyder

v. Harris, 394 U.S. 332, 89 S. Ct. 105 3 (1969), for the broad

proposition that multiple plaintiffs suing in a class may not

aggregate any claims for the purpose of satisfying the amount

in controversy requirement of diversity jurisdiction. Lindsey,

576 F.2d at 594. The Court then noted that each member of a

class must individually satisfy the jurisdictional amount to

5

Although the term "aggregation" is slightly

misleading in the context of punitive damages and attorneys

fees, it is commonly used by courts when addressing the issue

of whether the total amount of a class claim should be

attributed to each member of the class. Therefore, to avoid

further confusion and for the sake of consistency, we will

continue to refer to the issue as one of "aggregation."

a ee Te

22a

avoid being dismissed from the class suit. See id. (citing Zahn,

414 U.S.,at 300, 94 S. Ct. at 511). Because the Lindsey

plaintiff had failed to plead a specific number of class

members, the Court explained that it could not determine "what

dollar amount represent[ed] the 'amount in controversy’ for

Noting that the grounds for removal jurisdiction must be found

in the plaintiff's complaint itself, the Court explained that "it

was not open for [the] defendants to attempt to show that the

class was small enough that the claims on its behalf exceeded

the sum of $10,000 per capita,” id., which was the amount in

controversy requirement at that time, see id. at 593.

Because it could not, tell from the complaint the

number of class members, the Lindsey Court could not

determine whether each member's claim satisfied the

jurisdictional amount, and it therefore held that the total

specified damage claim for the class - $1,002,000 - had not

been shown to satisfy the amount in controversy requirement.

See id. at 595. A necessary part of Lindsey's reasoning is the

holding that for amount in controversy purposes a class

punitive damages claim must be allocated pro rata to each class

member. Otherwise, the result in that case would have been

different. If the Lindsey Court had concluded that a class claim

for punitive damages could be attributed in toto to each class

member, i.e., considered in the aggregate, for amount in

controversy purposes, the $1,000,000 punitive damages claim

clearly would have sufficed, regardless of whether the number

of class members in Lindsey had been two or two million. The

number of class members would have been irrelevant, instead

of the critical factor in the decision. Thus, Lindsey inescapably

stands for the proposition that a federal court cannot exercise

23a

diversity jurisdiction over a class action - even with completely

diverse parties - solely because the total punitive damages

claim on behalf of the entire class exceeds the jurisdiction

amount in controversy. Instead, under Lindsey, the punitive

damages claim for the class must be assigned on a pro rata

basis to each class member for amount in controversy purposes.

See id.

Three years after Lindsey, we split from the Fifth

Circuit but retained its decisional law as our own, see Bonner,

661 F.2d at 1207, and fifteen years after the split, this Court

decided Tapscott v. MS Dealer Serv. Corp. In that case, we

faced another attempt to base diversity jurisdiction on a class

claim for punitive damages, but we mistakenly considered the

matter as one of first impression.® See Tapscott, 77 F.3d at

1358.. The plaintiffs in Tapscott brought a state law class

action, alleging a class of over 10,000 members. See id. at

1355n.2. The class sought statutory damages, injunctive relief,

and an unspecified amount of compensatory and punitive

damages, based on the defendant's allegedly fraudulent conduct

in the sale of extended service contracts. See id. at 1355. The

defendants removed the case to federal court on diversity

jurisdiction grounds. See id. The plaintiffs contested the

removal with affidavits attesting that the individual recovery

® The Tapscott opinion cites Lindsey for the proposition

that each member of a class must individually satisfy the

amount in controversy requirement in order to avoid being

dismissed from the suit. See Tapscott, 77 F.3d at 1357 n.9. But

the opinion does not mention the part of Lindsey that requires

a pro rata distribution of the claimed punitive damages for

purposes of determining the amount in controversy.

24a

for each plaintiff would not exceed $50,000, the amount in

controversy required for diversity jurisdiction at the time. See

id. The defendants responded that, for jurisdictional purposes,

the class claim for punitive damages should be considered in

the aggregate. See id. at 137-59. We agreed and upheld the

removal of the case to federal court. See id. at 1359.

In Tapscott, this Court pointed to the Supreme Court's

discussion in Snyder, which indicated that multiple plaintiffs

may aggregate claims if they have "a single title or nght in

which they have a common d undivided interest." Id. at 1357

(quoting Snyder 394 US. at 335, 89 S. Ct. at 1056). We then

considered the nature of punitive damages under Alabama law,

finding that Alabama awards punitive damages to plaintiffs not

"as a matter of nght," but rather as a means to punish and deter

wrongful conduct. See id. at 1358. Because punitive damages

were intended to serve the collective good, we reasoned that the

class had a "common and undivided interest" in the punitive

damages claim. See id. at 1358-59. That is why this Court in

Tapscott permitted the punitive damages claim to be used to

satisfy the requisite amount in controversy for the entire class;

in effect, we let the whole amount of the punitive damages

claim be used by each class member for that purpose, a result

inconsistent with the decision in Lindsey almost twenty years

earlier. See id. at 1359.

Attempting to distinguish Tapscott from Lindsey,

Cohen points to the analysis in Tapscott addressing whether the

punitive damages claim constituted a "single collective right in

which [the class members had] a common and undivided

interest." Id. She contends that the "common and undivided

interest" issue was never presented to us in Lindsey, and thus,

25a

there is no real conflict between our Lindsey and Tapscott

decisions. Cohen's contention misconstrues the operation of

our prior panel precedent rule. The issue in Tapscott was the

same as that in Lindsey: whether a class claim for punitive

damages can be considered in the aggregate in order to

establish diversity jurisdiction over all potential members of a

class, or must instead be attributed pro rata to each class

member.

"Common and undivided interest" is simply the

standard used to decide which, if any, claims by multiple

plaintiffs may be considered in the aggregate for jurisdictional

purposes, and which must be divide among the class members.

See Snyder, 394 U.S. at 335, 89 S. Ct. at 1056. But we had

already decided in Lindsey that a class claim for punitive

damages could not be considered in the aggregate for each class

member, or at least that such a claim, arising under Alabama

law could not be. Our conclusion to the contrary in Tapscott,

which also involved Alabama punitive damages law, is

inconsistent with the result in Lindsey. Because the same state

law governed punitive damages in each case, there can be no

difference between the two cases insofar as the "common and

undivided interest" analysis is concerned.’

” Compare Allen v. RH Oil & Gas Co., 6 3 F.3d 132

(Sth Cir. 1995) (allowing aggregated class claim for punitive

damages because, under Mississippi law, plaintiffs had a

"common and undivided interest" in punitive damages claim),

with Ard v. Transcontinental Gas Pipe Line Corp., 138 F.3d

596, 602 (5th Cir. 1998) (disallowing aggregated class claim

for punitive damages in Louisiana case and stating that "[i]t is

unclear to us what Mississippi law regarding punitive damages

26a

The fact that this case involves a Florida law punitive

damages claim does not distinguish it from Lindsey, because as

we concluded in our prior panel opinion in this case, the nature

of punitive damages is the same under Florida law as under

Alabama law. See Cohen I, 184 F.3d at 1295. We explained

that both states award punitive damages to serve the collective

good, noting particularly that "Florida law, like Alabama law,

provides that ‘punitive damages are warranted only where the

egregious wrongdoing of the defendant ... constitutes a public

wrong.” Id. (citation omitted). Consequently, there can be no

difference between this case and Lindsey stemming from a

"common and undivided interest" analysis of state punitive

damages law.*

drove the Allen panel to depart from Lindsey's rule, but we find

no principle in Louisiana law ... that permits us to depart from

Lindsey ").

® As we noted in our prior opinion in this case, our

decision in Tapscott to consider the class punitive damages

claim in the aggregate was also based the fact that "the award

of punitive damages [would] reflect not the wrong done to any

single individual but the wrongfulness of the conduct as a

whole." See Cohen I 184 F.3d at 1295 (citing Tapscott, 77 F.3d

at 1358-59)). The class in that case consisted of cver 10,000

members, and the allegedly fraudulent transaction underlying

each member's claim involved relatively small amounts of

money. See Tapscott, 77 F.3d at 1358-59. Reasoning that

"where the wrong to the individual is small but the course of

conduct is large, the potential punitive damages would be to

punish and deter the course of conduct as a whole," we

concluded in Tapscott that it was appropriate to view the class

Ren

27a

claim for punitive damages in the aggregate. Id. at 1359. We

also suggested that if the facts indicated the punitive damages

award "would be determined on an individualized consideration

of the egregiousness of the harm done to individual class

members," id. at 1359 n.13, instead of the "wrongfulness of the

defendant's course of conduct as a whole," id. at 1358, then

aggregation might not be proper. See id. atl359 n.13. In view

of this analysis in Tapscott, the Lindsey decision arguably

could be viewed as holding only this: when a plaintiff fails to

specify the size of the class, thereby preventing the court from

determining the extent of the defendant's wrongful course of

conduct, the class claim for punitive damages cannot be viewed

in the "aggregate," i.e., it cannot be attributed in toto to each

class member.

Unfortunately, our analysis in Lindsey forecloses that

potential distinction between that case and Tapscott. In

Lindsey, we stated that if the plaintiff had alleged a specific

number of class members, that allegation "would have

permitted the court to ascertain what dollar amount represents

the ‘amount in controversy’ for each member of the class."

Lindsey 576 F.2d at 595 (emphasis added). Significantly, our

analysis in Tapscott suggests that the aggregation of punitive

damages is proper when the defendant's course of conduct

affects a large number of individuals. See Tapscott, 77 F.3d at

1359. But according to our prior analysis in Lindsey, a "large"

class is exactly what would have prevented the amount in

controversy requirement from being satisfied. Our concern in

Lindsey was that the number of class members, or the divisor,

might be so large that the $1,000,000 punitive damages claim,

when divided by the number of class members, would result in

Se

28a

Cohen's real argument is that the result and holding of

Lindsey are wrong because we failed to apply a "common and

undivided interest" analysis - she says it was not even

considered. Even if we thought Lindsey wrong, the prior panel

precedent rule is not dependent upon a subsequent panel's

an amount less than $10,000 (the requisite amount in

controversy at the time). We indicated in Lindsey that the class

would satisfy the amount in controversy requirement if the

complaint alleged a total number of members that "was small

enough that the claims on its behalf exceeded the sum of

$10,000 per capita" Lindsey 576 F.2d at 595 (emphasis added).

Thus, while our opinion in Lindsey does not explicitly forbid

the aggregation of a class claim for punitive damages, the

reasoning and result in that opinion does.

Under our reasoning in Lindsey, a punitive damages

claim must be divided by the total number of class members

with the quotient attributable to each class member for amount

in controversy purposes. See id. Our inability to determine the

number of class members, or the divisor, was critical not

because we could not determine the nature of the defendants’

course of conduct, but because without a divisor we could not

do the division necessary. We could not divide the class

punitive damages claim by the number of class members

without knowing that number. A Fifth Circuit panel recently

acknowledged the necessary implication of our Lindsey

decision. See Ard, 138 F.3d at 601 (construing Lindsey to

"appl[y] Snyder's reasoning that compensatory damage claims

cannot be aggregated for jurisdictional purposes to the context

of punitive damage claims"); see supra at note 6.

29a

appraisal of the initial decision's correctness. Nor is the

operation of the rule dependent upon the skill of the attorneys

or wisdom of the judges involved with the prior decision - upon

what was argued or considered. Unless and until the holding

of a prior decision is overruled by the Supreme Court or by the

en bane court, that holding is the law of this Circuit regardless

of what might have happened had other arguments been made

to the panel that decided the issue first.

Lindsey held that, for purposes of deciding whether the

amount in controversy requirement had been satisfied, the

amount of an Alabama punitive damages claim was to be

divided by the number of class members and the result

attributed to each member of the class. Tapscott decided to the

contrary. Because Lindsey predates Tapscott, we must follow

Lindsey as the precedent of this Court. See Steele, 147 F.3d at

1318; Dailey, 24 F.3d at 1327.

Accordingly, we rescind that part of our prior opinion

in this case that relied upon Tapscott to hold that the

$10,000,000 punitive damages claim on behalf of Cohen's

proposed class satisfied the amount in controversy requirement

for diversity jurisdiction over this case. See Cohen I, 184 F.3d

at 1294-95. The punitive damages claim does not satisfy the

amount in controversy requirement, because when the $

10,000,000 class claim for punitive damages is divided among

the alleged 39,000 class members, as Lindsey requires for

amount in controversy purposes, each member's share of the

claim is approximately $256.

We now address Cohen's other two grounds for

satisfying the requisite amount-in-controversy: (1) the value of

30a

the requested injunctive relief, and (2) the amount of attorney

fees due if the class prevails.

Il. COHEN'S OTHER GROUNDS FOR

DIVERSITY JURISDICTION

A. INJUNCTIVE RELIEF

In addition to requesting compensatory and punitive

damages, this lawsuit seeks to enjoin Office Depot from

engaging in unfair and misleading advertising regarding the

catalogue prices of its products. Cohen claims that Office

Depot's advertising indicates that the pnces for products

purchased from its catalogues are the lowest prices available

anywhere, but that the truth is some products are less expensive

if purchased at Office Depot stores. She argues that enjoining

such allegedly misleading advertising would "result[] in

changes to Office Depot's advertising and business practices,

thereby benefitting the Plaintiff class, as a whole, by an amount

that is clearly in excess of the jurisdictional requirement of

Section 1332." Appellant's Br. 44-45.

When a plaintiff seeks injunctive or declaratory relief,

the amount in controversy is the monetary value of the object

of the litigation from the plaintiff's perspective. See Ericsson

GE Mobile Communications, Inc. v. Motorola

Communications & Elecs., Inc., 120 F.3d 216, 218-20 (11th

Cir. 1997). In other words, the value of the requested

injunctive relief is the monetary value of the benefit that would

flow to the plaintiff if the injunction were granted. In this case,

Cohen maintains that the class has a "common and undivided

interest" in the injunctive relief, and thus, if considered in the

3la

aggregate, the monetary value of it to the class - alone or

combined with the other claims for relief - would satisfy the

$75,000 amount in controversy requirement. However, we

need not address whether the monetary value of the requested

injunctive relief should be considered in the aggregate, or

instead attributed pro rata among the class members, because

we conclude that the monetary value of the injunctive relief to

the class plaintiffs in this case is "too speculative and

immeasurable" to establish the requisite amount in controversy

in either event. See id. at 221-222.

We have little trouble concluding "to a legal certainty"

that the value of the injunctive relief does not satisfy the

jurisdictional amount in this case, see St. Paul Mercury Indem.

Co. v. Red Cab Co.,303U.S.283, 288-89, 58 S. Ct. 586, 590

(1938), because we doubt that any monetary value at all would

accrue to the class plaintiffs upon issuance of the prospective

injunction. If the requested injunctive relief were granted,

Office Depot would not be required to offer its products at the

lowest price available, but instead could simply raise the price

of the products in its stores a sufficient amount that its

advertising of catalogue prices was no longer false. That result

would comply with the injunction the class seeks, but it would

be of no monetary benefit to them. Indeed, to the extent class

members also buy products in Office Depot stores, the

injunction would cost them money under that scenario.

But let us assume Office Depot's reaction to the

requested injunction would be to leave product prices as they

are and clarify its advertising to remove any statement that

catalogue prices are the same as store prices. That result is the

most the class could hope for from the requested injunction, but

32a

it is one which would be of little or no monetary value to class

members. The benefit of the injunction to the class plaintiffs

would be the knowledge that some office products were less

expensive when purchased at Office Depot stores than when

purchased through the catalogue. However, upon class

certification aid notice, the class plaintiffs would already have

known that, because the allegedly misleading advertising is the

very basis of the class action.

Although Cohen's complaint seeks class certification

under subdivisions (b)(1)(A), (b)(1)(B), and (b)(3) of Fed. R.

Civ. P. 23, Cohen's class, if certified, would likely be certified

as a (b)(3) class.’ Certification under Rule 23(b)(3) would

* Because Cohen's class seeks compensatory damages,

it cannot be certified as a (b)(1)(A) class. See In re Dennis

Greenman Sec. Litig., 829 F.2d 1539, 1545 (11th Cir. 1987).

As for potential certification under (b)(1)(B), we fail to see

from the complaint's allegations how individual suits against -

Office Depot brought by one or more class members "would as

a practical matter be dispositive of the interests of the other

members ... or substantially impair or impede their ability to

protect their interests." Fed. R. Civ. P. 23(b)(1)(B); see also 7A

Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1774 (2nd ed. 1986

(explaining that "(b)(1)(B) allows class actions to be brought in

cases in which separate suits might have undesirable effects on

the class members"). Moreover, the possibility that an

individual suit "will have either precedential or stare decisis

effect on later [suits] is not sufficient" for (b)(1)(B) class

certification. In re Dennis Gr an Sec. Litig., 829 F.2d at

1546.

33a

require that the class members receive notice of the suit "well

before the merits of [it] are adjudicated." See Schwarzschild v.

Tse, 69 F.3d 293, 295 (9th Cir. 1995) (citations omitted); Fed.

R. Civ. P. 23(c)(2); see also 7B Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1788 (2nd ed.

1986). As a result, before any injunction were granted, the

class would already know that the catalogue price of some

Office Depot products is higher than the store price. Or, stated

differently, if the injunction were not granted, the class

plaintiffs would still know that the advertising is sometimes

false and that they can avoid paying the higher catalogue prices

simply by shopping elsewhere or by purchasing the products at

Office Depot's stores. The injunctive relief itself would not be

of any monetary value to the class members. Cf. Crawford v.

American Bankers Ins. Co. of Fla., 987 F. Supp. 1408, 1415

(M.D. Ala. 1997) (explaining that the class members' "financial

recovery will come ... from their tort and [restitution] claims,

not from the prospective injunctive relief").

The remote possibility - if there be any - that monetary

value might somehow flow to the class plaintiffs from the

requested injunctive reliefis "too speculative and immeasurable

to satisfy the amount in controversy requirement." Encsson,

120 F.3d at 221-222. In Ericsson, the plaintiff company,

Ericsson, claimed that the City of Birmingham improperly

handled the bidding process for its purchase of a

communications system, resulting in the company losing the

communications system contract to Motorola. See id. at 217.

Ericsson sought to enjoin the city's contract with Motorola and

also h4ave the court declare Ericsson the lowest responsible ~

biddex, entitling it to the contract with the city worth almost $

10,000,000. See id. However, the district court noted that,

eS Eee

34a

under Alabama law, the only remedy available to Ericsson was

to have the district court enjoin the performance of the city's

contract with Motorola as void. See id. at 221. Not only did

the court lack authority to declare Ericsson the lowest bidder,

it could not even require the city to rebid the contract. See id.

Consequently, the only benefit to Ericsson from its

injunctive relief would have been the possibility that the city

might rebid the contract and that, during the rebid, the city

might select Ericsson's communications system and price. See

id. at 221-22. We refused to pile possibility onto possibility to

estimate the value of that benefit, but instead held that

"[b]ecause [Ericsson could not] reduce the speculative benefit

resulting from a rebid ‘to a monetary standard, [] there [was] no

pecuniary amount in controversy." Id. at 222 (quoting Texas

Acorn v. Texas Area 5 Health Sys. Agency, Inc., 559 F.2d

1019, 1023 (Sth Cir. 1977)).

Similarly, the injunctive relief in this case involves too

many contingencies, such as the manner in which Office Depot

might alter its pricing schemes and the extent to which the class

members' purchasing patterns might change. Because of these

contingencies, any benefit to the class from the injunction

cannot be reduced to a reasonable monetary estimate."® See id.

'0 Like the plaintiff in Ericsson, Cohen has not

established a monetary value for the injunctive relief claim. See

id. at 222 n. 18. Cohen argues that her proposed amended

complaints provide bases for valuing the injunctive relief claim,

primarily the substantial expense Office Depot would incur by

"retooling" its pricing scheme and advertising. The potential

cost of compliance to the defendant, however, is irrelevant in

35a

at 222. We therefore conclude that any monetary value to

Cohen's class from the injunction is either non-existent, or at

least too tenuous of a foundation for diversity jurisdiction. In

reaching this conclusion, we also note that the policy

underlying 28 U.S.C. § 1332(a), which is to reserve federal

court diversity jurisdiction for disputes involving relatively

substantial damages, further informs our refusal to speculate

about the value of a prospective injunction to the class

plaintiffs in this case. See Packard v. Provident Nat'l Bank,

994 F.2d 1039, 1044-45 (3rd. Cir. 1993) (noting that § 1332(a)

"must be narrowly construed so as not to frustrate the

congressional purpose behind it"). The total compensatory and

punitive damages claim for each class member in this case is

determining the value of the benefit that would be obtained by

the plaintiff from an injunction. See Ericsson, 120 F.3d at 218-

20. For that reason, the proposed amended complaint did not

establish the requisite amount in controversy based on the value

of the injunctive relief, and accordingly, the district court did

not abuse its discretion in denying leave to amend. See

Halliburton & Assocs., Inc. v. Henderson, Few & Co., 774 F.2d

441, 444 (11th Cir. 1985) (noting that when "a complaint as

amended is still subject to dismissal, leave to amend need not

be given") (citation omitted).

IBM aa ii

36a

about $260,'' well below the $75,000 threshold for diversity

jurisdiction.

Because the class claim for injunctive relief is too

speculative to satisfy the amount in controversy requirement,

we turn now to the question of whether the potential recovery

of attorney fees, alone or in combination with the damages

claims, can establish the jurisdictional amount in controversy.

B. ATTORNEY FEES

On behalf of the class, Cohen brought claims under

Florida statutes that prohibit deceptive business practices, see

Fla. Stat. § 501.201 et. seq., and misleading advertising, see

Fla. Stat. § 817.41. Both statutory causes of action authorize a

court to award attorney fees to the prevailing party. See Fla.

Stat. § 501.2105; Fla. Stat. § 817.41. Cohen contends that when

a statutory cause of action entitles a party to recover reasonable

attorney fees, the amount in controversy includes consideration

of the amount of those fees. She is correct. See Missouri State

Life Ins. Co. v. Jones, 290 U.S. 199, 202, 54S. Ct. 133, 134

'! While there are persuasive reasons for viewing the

amount in controversy as the total liability faced by a

defendant, instead of as the amount each plaintiff stands to

gain, "the Supreme Court has long since closed that door."

Davis v. Carl Cannon Chevrolet-Olds. Inc., 182 F.3d 792, 798

(11 th Cir. 1999). In this case, the approximate compensatory

damages claim of each member, assuming Cohen's claim is

representative of the other class members, is $3.57. Each

member's share of the punitive damages claim is approximately

$256. The total damages claim of each class member,

therefore, is less than $260.

; :

37a

(1933); Premier Indus. Corp. v. Texas Indus. Fastener Co., 450

F.2d 444, 447 (Sth Cir. 1971).

Cohen also contends that the attorney fees in this case

will clearly surpass the $75,000 threshold for the amount in

controversy; and she argues that the amount of fees she

anticipates will be awarded either should be (1) attributed to her

as the prevailing party, with jurisdiction over the other class

plaintiffs established under 28 U.S.C. § 1367(a) (the

supplemental jurisdiction provision), or (2) considered in the

aggregate and attributed in toto to each member based on their

"common and undivided interest" in the attorney fees.

Assuming away our doubts that Cohen has established a

sufficient basis for her contention that an award of attorney fees

38a

in this case will reach $75,000 or more,'? we address in turn her

arguments as to how that amount of fees should be attributed.

First, we find no basis for attributing the potential

award of attorney fees to Cohen, either individually or as the

Class representative. The claim for attorney fees in this case is

based on two Florida statutes: Fla. Stat. § 501.2105(1),

authorizing an award of attorney fees to "the prevailing party"

in an action based on deceptive business practices; and Fla.

'2 We doubt that Cohen has sufficiently established that

$75,000 in attorneys fees will be recovered in this case. In her

proposed amended complaint, Cohen contends that over

$60,000 in reasonable attorneys fees had been incurred up to

that point in the litigation and that ultimately over $100,000 in

fees would be incurred. However, Cohen provided no

documentation supporting those contentions or specific

explanation for the substantial amount claimed. Arguably,

when the amount in controversy substantially depends on a

claim for attorneys fees, that claim should receive heightened

scrutiny. Cf, Packard 994 F.2d at 1046 (explaining that when

a "[punitive damages] claim comprises the bulk of the amount

in controversy and may have been colorably asserted solely or

primarily [for jurisdictional purposes], that claim should be

given particularly close scrutiny"). However, because of the

permissive nature of St. Paul's "legal certainty" standard for the

sufficiency ofa plaintiff's amount in controversy allegation, and

because our decision would not be different even if the claimed

amount of fees were accurate, we will assume that Cohen has

alleged a sufficient basis for a potential attorneys fee award

exceeding $100,000, as estimated in her proposed amended

complaint.

oe

39a

Stat. § 811.41(6), mandating an award of attorney fees to "[a]ny

person prevailing" in an action based on misleading

advertising. If this class action were successful on the merits,

the entire class of plaintiffs - not just Cohen - would "prevail"

_ In the action, and accordingly, it is the class and not just Cohen

who would recover attorney fees under the statutes.'°

In addition, as an individual class member, Cohen

stands to recover no more than $260 in damages. In her first

proposed amended complaint, Cohen indicated that over

$100,000 in reasonable attorney fees would be incurred in the

litigation. Attributing to one plaintiff an anticipated attorney

fees award that is over 384 times greater than that plaintiff's

stake in the litigation could raise serious questions about the

reasonableness of the fee award. For these reasons, we

conclude the claim for attorney fees in this case is not

attributable solely to Cohen, but instead to the entire class.

Because of that conclusion, we must now decide how the

'5 Cohen's citation to In re Abbot Labs., 51 F.3d 524

(5th Cir. 1995), is inapposite. The Court in that case attributed

a claim for attorney fees to the class representatives, because

the relevant Louisiana statute provided that a "court may allow

the representative parties their reasonable expenses of

litigation, including attorney[] fees, when as a result of the class

action a fund is made available, or a recovery or compromise

is had which is beneficial, to the class." Id. at 526 (emphasis

added)- Unlike the statute in Abbott, the Florida statutes at

issue here do not contain language indicating that the award of

attorneys fees should go to the class representatives.

40a

claimed attorney fees should be attributed to each class member

for amount in controversy purposes.'*

Cohen maintains that the class members share a

"common and undivided interest" in the anticipated award of

attorney fees,:and thus, the claim for those fees should be

viewed in the aggregate, with the total amount attributed to

each class member. Office Depot responds that, like the class

claim for punitive damages, the amount of the claimed attomey

fees should be divided pro rata among each individual class

member. In light of a recent decision by this Circuit and the

relevant Florida case law, we conclude that the claim for

| attorney fees is not "a single title or right in which [the class

'* Cohen asks us to join the Fifth and Seventh Circuits

in concluding that Congress statutorily overruled Zahn's

holding that each plaintiff must assert a claim satisfying the

requisite amount in controversy to avoid being dismissed from

a class action based on diversity jurisdiction. See Stromberg

Metal Works v. Press Mechanical. Inc., 77 F.3d 928, 930-33

(7th Cir. 1996); In re Abbott Lab., 51 F.3d at 527-29. She

contends that the 1990 amendments to 28 U.S.C. § 1367

authorize a court to exercise supplemental jurisdiction over the

claims of the entire class, once the claim of one class member

is found to satisfy the amount the controversy requirement.

However, we need not address that argument. Because the

claimed attorney fees in this case are not attributable solely to

Cohen, no member of the class has an individual claim at

Satisfies the requisite amount in controversy. Therefore,

diversity jurisdiction will exist in this case only if the claimed

attorney fees may be considered in the aggregate, attributed as

a whole to each class member.

4la

members] have a common and undivided interest" in the

claimed attorney fees. See Snyder, 394 U.S. at 335, 89 S. Ct.

at 1056. Therefore, for amount in controversy purposes, the

estimated total attorney fees award should be divided among all

of the class members.

In Darden v. Ford Consumer Finance Co., _ F.3d

___ (11th Cir. 2000), the defendant attempted to remove a

class action to federal court on diversity grounds, arguing that

the class plaintiffs’ claim for attorney fees under the Georgia

RICO statute should be considered in the aggregate for amount

in controversy purposes. We rejected that argument.

Following the principles laid down by the Supreme Court in

Snyder, we concluded that the claimed attorney fees did not

constitute a "single title or right" in which the class members

had a "common and undivided interest." See id. at *3-6. In

reaching th t conclusion, we noted that each class plaintiff

could have recovered his attorney fees in individual suits under

the RICO statute. See id. at *5. It followed that the class

members did not share a "single title or right" in the claimed

attorney fees, but instead, each member had a "separate and

distinct statutory right or claim to recover those attorney[]

fees." Id. Noting further that under Georgia law the statutory

award of attorney fees serves to compensate injured plaintiffs,

we reasoned that considering the fees in the aggregate would

contravene Snyder's prohibition against aggregating

42a

compensatory damages.'* See id. Therefore, we refused to

aggregate the claimed attorney fees of the class.""®

We construe Darden to hold that a statutory claim for

attorney fees may not be considered in the aggregate for

amount in controversy purposes, at least not when both of these

factors are present: (1) the class members have a "separate and

distinct" right to recover attorney fees under the relevant

statute; and (2) state law provides that the statutory attorney

'S Darden distinguished the "collective good" purposes

of the punitive damages in Tapscott from the compensatory

) nature of the attorneys fees in that case. See Darden. Therefore,

the decision in Darden did not depend on the continued validity

of the Tapscott decision. However, if Darden had somehow

reiterated the part of Tapscott that conflicts with Lindsey, we

would still be compelled to follow Lindsey to the extent of any

conflict. The prior panel precedent rule precludes us from

"hold[ing] that two subsequent panel opinions can implicitly

overrule a prior panel opinion." Johnson v. City of Fort

Lauderdale, Fla., 126 F.3d 1372,1380 n.10 (11thCir. 1997).

'© This Court also rejected the aggregation of an

attorney fees award in Davis, 182 F.3d at 796-97. However,

the precedential effect of Davis on this case is minimal,

because that case did not involve a statutory right to attorneys

fees. Instead, Davis addressed only the "narrow question... [of]

whether a fee to be deducted from a [class action] common

fund may, if it exceeds $75,000, satisfy the amount-in-

controversy requirement." Id. at 796.

| En LN ee NTT ee

43a

fees serve to compensate the class members for their injuries.”

Applying that holding to the facts of this case, we conclude that

the claimed attorney fees may not be considered in the

aggregate to establish the requisite amount in controversy.

As for the first factor, the class members in this case

could recover their individual attorney fees incurred in separate,

individual suits under Florida's consumer protection statutes.

See Fla. Stat. § 501.2105(1) (authorizing fee award for

"prevailing party"); Fla. Stat. § 817.41(6) (mandating fee award

for "[a]ny person prevailing" under the statute). Like the

Georgia RICO statute involved in Darden, the Florida statutes

in this case provide "each individual plaintiff in a putative class

the right to recover attorney[] fees in the case.” Darden, The

members of Cohen's class are not joining to "enforce a single

title or right" in the statutory award of attorney fees, see Snyder,

394 US at 335, 89 S. Ct. at 1056, because each member has a

“separate and distinct right" in the claimed fees. See Darden.

The second factor is also present. Like the attorney fees

award under the Georgia RICO statute in Darden, an attomey

fees award under Florida consumer protection statutes serves an

important compensatory purpose. In BMW of North Amer.,

Inc. v. Krathen, 510 So. 2d 366, 368 (Fla. 4th Dist. Ct. App.

1987), the District Court of Appeals for the Fourth District

noted that "the obvious purpose of the 'Little FTC Act' [which

includes § 501.2105(1)] is to make consumers whole for losses

'” Because both factors are present in this case, we need

not decide whether either one standing alone would prevent

aggregation of attorney fees to satisfy the amount in

controversy.

44a

caused by fraudulent consumer practices [and that] ... [t]hese

aims are not served if the attorney[] fees are not included in the

protection." Id. at 368 (citation omitted); cf. Florida Erection

Serc. v McDonald, 395 So. 2d 203, 207-08 (Fla. 1st Dist. Ct.

App. i981) (explaining that an award of attorney fees, unlike

an award of punitive damages, "does not provide remuneration

to the claimant over and above the amount necessary to

compensate him for his loss"). Even though the primary

purpose of such an award is to encourage private enforcement

of statutory policies, thus benefitting the public, see Standard

Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828, 833-34 (Fla.

1990), that does not mean attorney fees are not also

compensatory in nature. The Florida Supreme Court has

recognized that private individuals cannot be expected to

pursue statutory causes of action unless their own losses and

costs, including their attorney fees, will be fully compensated.

See id. (noting that "[i]f ... consumers cannot recover in full

their attorney fees, they will quickly determine it is too costly

... to file suit, and individual enforcement of this act will fail")

(quoting LaFemey v. Scott Smith Oldsmobile. Inc., 410 So. 2d

534, 536 (Fla. 1st Dist. Ct. App. 1978)). Because the statutory

attorney fees involved in this case serve a significant

compensatory purpose, in this case as in Darden, aggregating

the claimed attorneys fees would be inconsistent with Snyder.

Consequently, the nature and purpose of the statutory right to

attorney fees in this case strongly resemble those of the

statutory right to attorneys fees in Darden, it follows that the

result should be the same.

Because the attorney fees authorized by the Florida

statutes in this case serve to compensate plaintiffs for losses

resulting from allegedly unlawful business practices, and

45a

because claims for those fees could be asserted by the\class

plaintiffs in individual suits, we conclude that the claimed fees

do not constitute "a single title or right in which [the class

members] have a common and undivided interest." Snyder,

394 US. at 335, 89 S. Ct. at 1056. It follows that the amount

of claimed attorney fees may not be considered in the aggregate

- may not be attributed in whole to each class member - but

instead, like the class claim for punitive damages, it must be

divided out among the total number of class members for

amount in controversy purposes. Because each class member's

damages claim approximates $260, and the claimed attorney

fees must be divided pro rata among 39,000 class members, an

astronomical amount of attorney fees would have to be

recovered in order to satisfy the amount in controversy

requirement.'® Such a recovery is not possible, and therefore,

neither is diversity jurisdiction.

Il. CONCLUSION

Because we conclude that Cohen has failed to allege a

sufficient amount in controversy to establish jurisdiction under

28 U.S.C. § 1332(a), we vacate our prior opinion reversing the

district court's dismissal of this case and remanding for further

'8 Each class member must, in effect, "recover"

$74,740 in attorneys fees ($75,000 required for diversity

junsdiction minus the $260 in damages per class member).

That means the class would have to recover a total of $2.9

billion in attorneys fees ($74,740 multiplied by the alleged

39,000 class members).

46a

proceedings. We now affirm the district court's order

dismissing the case, for lack of subject matter jurisdiction.

AFFIRMED.

47a

APPENDIX C - ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DENYING COHEN’S

PETITION FOR REHEARING AND REHEARING

EN BANC ISSUED MAY 31, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-4787-HH

CORRECTED

CHERYL COHEN, on behalf of herself and

others similarly situated,

Plaintiff-Appellant,

versus

OFFICE DEPOT, INC., a Florida corporation,

Defendant-Appellee.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , tith Cir. 19_,

F.2d ).

48a

Before: BIRCH and CARNES, Circuit Judges, and MILLS*,

Senior District Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel nor other Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Petition(s) for Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

/s/Ed Carnes

UNITED STATES CIRCUIT JUDGE

ORD-42

(6/95)

*Honorable Richard Mills, Senior U.S. District Judge for the

Central District of Illinois, sitting by designation.

49a

APPENDIX D - ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT GRANTING COHEN’S MOTION TO STAY

ISSUANCE OF MANDATE FILED JULY 7, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-4787-HH

CHERYL COHEN, on behalf of herself and

others similarly situated,

Plaintiff-Appellant,

versus

OFFICE DEPOT, INC., a Florida corporation,

Defendant-Appellee.

On Appeal from the United States District Court for the

Southern District of Florida

ORDER:

() The motion of Appellant, Cohen, for (X) stay () recall

and stay of the issuance of the mandate pending petition

for writ of certiorari is DENIED.

(X) The motion of Appellant, Cohen, for (X) stay () recall

and stay of the issuance of the mandate pending petition

for writ of certioran is GRANTED to and including

50a

August 15, 2000, the stay to continue in force until ‘he

final disposition of the case by the Supreme Court,

provided that within the period above mentioned there

shall be filed with the Clerk of this Court the certificate

of the Clerk of the Supreme Court that the certiorari

petition has been filed. The Clerk shall issue ‘he

mandate upon the filing of a copy of an order of ‘he

Supreme Court denying the wnit, or upon expiration of

the stay granted herein, unless the above mentioned

certificate shall be filed with the Clerk of this Court

within that time.

/s/ Ed Carnes

UNITED STATES CIRCUIT JUDGE

S5la

APPENDIX E - ORDER OF DISMISSAL OF

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

FLORIDA FILED APRIL 3, 1998

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 97-3611-CIV-LENARD

CHERYL COHEN, on behalf

of herself and others

similarly situated, Filed D.C.

APR 03 1998

Plaintiff, Carlos Juenke

Clerk U.S. Dist. Ct.

vs. S.D. OF FLA. - MIAMI

OFFICE DEPOT, INC., a -

Florida corporation,

Defendant.

~~ /

ORDER OF DISMISSAL

THIS CAUSE came before the Court upon the

Defendant's Motion to Strike Plaintiff's Claims for Punitive

Damages (DE16), filed February 2, 1998, Defendant's Motion

to Strike Plaintiff's Unauthorized Claims for Attomey’s Fees

(DE17), filed February 2, 1998, Defendant's Motion to Dismiss

for Lack of Subject Matter Jurisdiction (DE18), filed February

52a

3, 1998, Defendant's Motion to Dismiss (DE20), filed February

3, 1998, and Defendant's Motion for Bond (DE36), filed March

11, 1998. The Court has considered the motions and the

responses and replies thereto, and otherwise advised in the

premises, finds as follows.

I. INTRODUCTION

On November 12, 1997, Plaintiff, Cheryl Cohen

("Cohen") filed the above-captioned action against Defendant

Office Depot ("Office Depot") on behalf of herself and a

proposed nationwide class of approximately 39,000 plaintiffs

in order to recover actual damages incurred by virtue of

allegedly deceptive advertising by Office Depot in its catalogs.

Cohen also seeks a permanent injunction barring deceptive

advertising by Office Depot, $10,000,000.00 in punitive

damages, interest, costs and attorneys’ fees. Office Depot

responded to the Complaint by filing motions to dismiss

Cohen's action for lack of subject matter jurisdiction and for

failure to state a claim upon which relief may be granted.

Office Depot also asks the Court to strike Cohen's requests for

punitive damages and attorneys’ fees as unauthorized.

Il. ANALYSIS

"Federal courts are courts of limited jurisdiction." Burns

v. Windsor Ins. Co., 31 F.3d1092, 1095 (11th Cir. 1994).

Where as here, the complaint contains no claims based upon

federal law, the plaintiff must allege facts supporting

jurisdiction based upon diversity of citizenship pursuant to

28 U.S.C.A. § 1332 (West 1993 & Supp. 1998). The district

court has subject matter jurisdiction pursuant to Section 1332

53a

where the matter in controversy exceeds the sum or value of

$75,000.00, exclusive of interest and costs, and is between

citizens of different states. Where class action allegations are

pled, diversity of citizenship is present where the defendant and

class representative(s) are of diverse citizenship, irrespective of

the citizenship of the potential class members. See Snyder v.

Harris, 394 U.S. 332, 340 (1969). In the Complaint, Cohen

alleged that she and Office Depot are citizens of Georgia and

Florida, respectively, and that "although Plaintiff's

compensatory damages may be relatively low, Plaintiff seeks

on behalf of herself and the Plaintiff class, aggregate punitive

damages of at least $10,000,000.00 and attorney's fees in which

Plaintiff will have an undivided interest." (Compl. 4 4.) In fact,

Plaintiff's alleged compensatory damages amount to

approximately $2.30. Id. 9 5. As aresult, Cohen does not and

cannot rely on her allegations with respect to compensatory

damages to satisfy the amount in controversy requirement of

Section 1332. Further, members of a class cannot aggregate

their individual claims to exceed the jurisdictional minimum

amount in controversy. See Zahn v Intemational Paper Co.,

414 U.S. 291, 294-302 (1973); Snyder v. Harris, 394 U.S. at

335-42.

Cohen does rely on her claims for punitive damages

injunctive and declaratory relief and attorneys’ fees to satisfy

the amount in controversy requirement necessary to this Court's

jurisdiction over her action, however. Office Depot contends

that Cohen's request for punitive damages contravened Fla.

Stat. Ann. § 768.72 (West Supp. 1998) and therefore must be

stricken from the Complaint and also as a basis upon which

Cohen may rely to for federal jurisdiction. (Def.’ s Mot.

54a

Dismiss at 4; Def.'s Mot. Strike Punitive Damages at 3-6.)

Section 768.72 provides that

[iJn any civil action, no claim for punitive

damages shall be permitted unless there is a

reasonable showing by evidence in the record or

proffered by the claimant which would provide

a reasonable basis for recovery of such

damages. The claimant may move to amend

her or his complaint to assert a claim for

punitive damages as allowed by the rules of

civil procedure. The rules of civil procedure

shall be liberally construed so as to allow the

claimant discovery of evidence which appears

reasonably calculated to lead to admissible

evidence on the issue of punitive damages. No

discovery of financial worth shall proceed until

after the pleading conceming punitive damages

is permitted.

In Sanders v. Mayor's Jewelers, Inc., 942 F. Supp. 571 (S.D.

Fla, 1996), this Court found Section 768.72 to be fully

applicable in federal court. 942 F. Supp. at 575-76. In that

CaSe, the Court struck the plaintiffs claims for punitive

damages for her failure to request leave to plead such claims.

942 F. Supp. at 576. The Court then instructed the plaintiff to

COmply with Section 768.72 by applying for leave to assert

SuCh claims should she wish to do so. Id. Like the plaintiff in

Sanders, Cohen failed to seek leave before including her claim

55a

for punitive damages in the Complaint. As a result, Cohen's

punitive damages claims must be stricken.’

Cohen, however, asks the Court to distinguish her

action from the one brought in Sanders on the ground that

Sanders was before the Court under the federal question

jurisdiction provision of 28 U.S.C.A. § 1331 (West 1993),

'? But for the requirements imposed by Section 768.72,

Cohen's $10,000,000.00 punitive damages claim appears to

satisfy the amount in controversy requirement. In Tapscott v.

MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996), the

Eleventh Circuit held that punitive damages may be aggregated

in aclass action where state law provides for such damages and

where state law provides for the award of punitive damages for

the "public benefit" or "collective good.” 77 F.3d at 1358-59.

In Florida, "[p]unitive damages are imposed in order to punish

the defendant for extreme wrongdoing and to deter others from

engaging in similar conduct." Chrysler Corp. v. Wolmer, 499

So. 2d 823, 825 (Fla. 1986) (citing Mercury Motors Express,

Inc. v. Smith, 393:So. 2d 545 (Fla. 1981 )). "[P]Junitive damages

are warranted only where the egregious wrongdoing of the

defendant, although perhaps not covered by criminal law,

nevertheless constitutes a public wrong." Id. (citing Arab

Termite & Pest Control, Inc. v. Jenkins, 409 So. 2d 1039 (Fla.

1982)). Punitive damages are available for violations of Fla.

Stat. Ann. § 817.41 (prohibiting misleading advertising) and for

common law fraud, the theories upon which Counts III and IV

of the Complaint are based. As a result, the aggregation of

punitive damages to meet the amount in controversy

requirement in this case would be proper under the reasoning

of Tapscott.

ee ae 6 UN Pad ote

56a

rather than the diversity of citizenship jurisdiction provision of

Section 1332. (Pl.'s Resp. at 11-12.) Cohen contends that

should the Court fail to distinguish between the cases, the result

will be to bar her entirely from pursuing her claims in federal

court. Id. Cohen supports her desire to litigate her case in

federal court with nothing more than the assertion that

"[c]learly, a state court is not equipped to maintain a national

class action such as this case, which involves over 39,000 class

members [from] at least 39 states." Id. at 12. This assertion is

disingenuous at best.

Cohen also has argued that her claims satisfy the

amount in controversy requirement based either upon the value

of the injunctive and declaratory relief or upon the attorneys’

fees that she seeks. The party seeking to invoke the jurisdiction

of the federal courts has the burden of proving its existence.

See Majd-pour v. Georgiana Community, Hosp. , Inc., 724 F.

2d 901, 903 (11th Cir. 1984); Fountain, Metropolitan Atlanta

Rapid Transit Auth., 678 F.2d 1038, 1041 (11th Cir. 1982).

The Court must consider the allegations of the Complaint and

the evidence submitted by Cohen to determine whether it

appears to a legal certainty that her claim is for less than the

$75,000.00 jurisdictional minimum and thus that the action

must be dismissed. See Baltin v. Alaton Trading Corp., 128

F.3d 1466, 1472 (11th Cir. 1997). "The determination of

whether the requisite amount in controversy exists is a federal

question; however, ‘State law is relevant to this determination

insofar as it defines the nature and extent of the right plaintiff

seeks to enforce.” Duderwicz v. Sweetwater Sav. Ass'n, 595

F.2d 1008, 1012 (Sth Cir. 1979) (quoting Johns-Manville Sales

57a

Corp. v. Mitchell Enters., Inc., 417 F.2d 129, 131 (5th Cir.

1969)).2°

In Ericsson GE Mobile Communications, Inc. _v.

Motorola Communications & Electronics, Inc., 120 F.3d 216

(11th Cir. 1997) , the Eleventh Circuit noted that where a

plaintiff seeks "only declaratory and injunctive relief, it is well

established that the amount in controversy is measured by the

value of the object of the litigation." 120 F.3d at 218 (quoting

Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333

(1977)). In this case, that object is enforcement of the right of

Cohen and the class to be free of those practices of Office

Depot that violate the Florida Deceptive and Unfair Trade

Practices Act, measured from the Plaintiff's perspective. Fla.

Stat. Ann. 501.211(1); 120 F.3d at 21920. Motorola instructs

the Court to determine whether the value of the injunctive relief

to Cohen and the class is "sufficiently measurable and certain

to satisfy" the $75,000.00 requirement. 120 F.3d at 221. In

certain types of cases, the value of injunctive relief is

"sufficiently measurable."See, e.g., Occidental Chem. Corp. v.

Bullard, 995 F.2d 1046, 1047-48 (11th Cir. 1993) (equating

value of declaration of rights under and specific performance

of option portion of mineral rights lease with fair market value

of option property). In other cases, the value of such relief is

speculative. See, e.g., Motorola, 120 F.3d at 221-22 (finding

value of injunctive relief which would allov. plaintiff to rebid

for a municipal contract too speculative). In this case, Cohen

20 The Eleventh Circuit has adopted as blinding

decisions of the former Fifth Circuit rendered prior to October

1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1081) (en banc).

58a

did not support her assertion that "an injunction in this case

would require Office Depot to refrain from engaging in unfair

and deceptive representations, resulting in changes to Office

Depot's advertising and business practices, thereby benefitting

the Plaintiff class, as a whole, by an amount that is clearly in

excess of the jurisdictional requirement of Section 1332" with

a dollar value. See Pl.'s Resp. at 7; Motorola, 120 F.3d at n.18.

As in Motorola, the "speculative benefit" resulting from a

permanent injunction enjoining Office Depot from deceptive

advertising cannot be reduced to a monetary standard, "there is

no pecuniary amount in controversy" based upon Cohen and the

potential class’ request for declaratory and injunctive relief.

Motorola, 120 F.3d at 222 (quoting Texas Acorn v. Texas Area

5 Health Sys. Agency, Inc., 559 F.2d 1019, 1023-23 (Sth Cir.

1977)). Alternatively, the monetary standard to which the

request for injunctive relief may be reduced for Cohen is $2.30,

an amount which is not aggregable with the actual alleged

losses of the potential class members for the purpose of the

amount in controversy determination. See Zahn_v.

International Paper Co., 414 U.S. 291, 294-302 (1973); Snyder

v. Harris, 394 U.S. 332, 335-42 (1969).

Cohen and the proposed class also contend that the

amount in controversy requirement is satisfied by their

potential entitlement to attomeys' fees on two of the seven

claims brought under Sections 501.211 and 817.41, Fla. Stat.

Ann. Cohen argues that "[rJecovery of attorney fees in this

action, either in an aggregate award to class members, or

individually, by Cohen, as class representative, will satisfy the

amount in controversy requirement because the attorney fees

that will be incurred in pursuing this complex action will

exceed the $75,000 amount required under Section 1332." (Pls.'

59a

Resp. at 4.) Although attorneys’ fees where authorized by the

statute sued on may be calculated into the amount in

controversy determination, see, €.g., Missouri State Life Ins.

Co. v. Jones, 290 U.S. 199 (1933), and Graham v. Henegar,

640 F.2d 732 (Sth Cir. 1981), it is unclear whether Cohen's

argument with respect to the fees warranted by the complexity

of this action is sufficient to meet her burden of proving that

her claims are within the jurisdiction of this Court. Indeed,

attorneys’ fees would have to make up the vast majority of the

required $75,000 minimum amount in controversy, given that

Cohen claims $2.30 in compensatory damages. The Court

finds that Cohen has not met her burden on this issue.

Il CONCLUSION

In sum, Cohen has neither alleged nor adduced facts

which show that the amount in controversy is sufficient to

invoke the subject matter jurisdiction of this Court. Further, at

this time, it appears to a legal certainty that the claims alleged

in the Complaint, other than the claims for punitive damages

stricken above, are for less than the jurisdictional minimum set

forth by 28 U.S.C.A. § 1132. As a result this case must be

dismissed. Based upon the foregoing, it is hereby

ORDERED AND ADJUDGED that this action is

DISMISSED for lack of subject matter jurisdiction.

Defendant's Motion to Dismiss for Lack of Subject Matter

Jurisdiction (DE18) and Defendant's Motion to Strike Plaintiff's

Claims for Punitive Damages (DE16) are GRANTED. All

other pending motions are DENIED as moot, and the Clerk

shall close this case forthwith.

60a

DONE AND ORDERED in Chambers at Miami,

Florida, this__3 day of April, 1998.

S/

JOAN A. LENARD

UNITED STATES DISTRICT JUDGE

CC: Robert C. Maland, Esq.

Alvin D. Lodish, Esq.

Troy Ferguson, Esq.