The opinion of the court was delivered by: J. Bartle, Judge.
This is a putative class action originally filed in the Court of
Common Pleas of Philadelphia County and subsequently removed to
this court. Plaintiffs allege that defendants, manufacturers of
beryllium containing metals in Reading, Berks County,
Pennsylvania, negligently introduced respirable beryllium dust,
fumes, and particle matter into the environment including the
ambient air. According to the plaintiffs, such activities caused
diseases to those who resided near the plant. In their core prayer
for relief, plaintiffs request that the court:
[C]reate a trust fund, paid for by defendants, under Court
supervision, to finance medical monitoring services, including,
but not limited to, testing, preventative screening, care and
treatment of conditions resulting from, or potentially resulting
from, exposure to beryllium dust and particulates. . . .
(Pls.' Compl. ¶ 58(b)). Before the court is the motion of
plaintiffs to determine whether this action should be remanded to
the Court of Common Pleas of Philadelphia County for lack of
subject matter jurisdiction. See 28 U.S.C. § 1447(c).
Plaintiffs' claims are based solely on state law. It is undisputed
that the diversity of citizenship requirement has been met because
the named class representatives are citizens of Pennsylvania and
the defendants are citizens of states other than Pennsylvania. See
Snyder v. Harris, 394 U.S. 332, 340, reh'g denied
394 U.S. 1025 (1969); In re School Asbestos Litig., 921 F.2d 1310,
1317 (3d Cir. 1990). The issue presented involves the second jurisdictional
prong — whether the amount in controversy exceeds the sum of
$75,000, exclusive of interest and costs, as required under
28 U.S.C. § 1332(a). Since defendants removed this case from the
state court, they bear the burden of proof to establish that the
jurisdictional value has been satisfied. McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Steel Valley Auth. v.
Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
The parties have stipulated: "The total sum sought on behalf of
all members of the putative class to establish a trust fund to
finance medical monitoring for members of the putative class
exceeds $75,000. The cost to establish a trust fund to perform
medical monitoring during the lifetime for each individual
plaintiff would be less than $75,000."*fn1 Defendants contend
the size of the trust fund in the aggregate is the proper
jurisdictional benchmark while plaintiffs maintains that we must
look to the cost for each individual class member without
aggregation. If plaintiffs are correct, we must remand this
In Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39 (1911), the
Supreme Court explained:
When two or more plaintiffs, having separate and distinct demands,
unite for convenience and economy in a single suit, it is essential
that the demand of each be of the requisite jurisdictional amount;
but when several plaintiffs unite to enforce a single title or right,
in which they have a common and undivided interest, it is enough if
their interests collectively equal the jurisdictional amount.
Id. at 40-41 (citations omitted).
As in Zahn, we are convinced that the claims here are separate
and distinct. Like the lake-front property owners and lessees, each
putative class member here has suffered a distinct harm from the
defendants' alleged negligence. While the harm may have emanated
from the same source, again as in Zahn, any duty owed is owed
to the plaintiffs individually. Plaintiffs here do not have a common
and undivided interest in land or other property. The adjudication
of the claim of each putative class member could be accomplished
in a separate action without adversely affecting the right of any
other class member in a "single indivisible res." Gilman v.
BNC Securities, 104 F.3d 1418, 1423 (2d Cir. 1997); see
id. at 1421-23. If the plaintiffs had a common and undivided
interest in an existing trust, it would be a different matter. However,
no trust exists or has ever existed. Instead, plaintiffs are
requesting as a remedy that the court compel defendants to create
and fund a trust to compensate plaintiffs for their individual
injuries and to give each class member a common and undivided
interest in it. The plaintiff class members have simply "united[d]
for convenience and economy in a single suit." Troy Bank,
222 U.S. at 40-41. Consequently, we cannot aggregate the value of all
the claims of the class members in order to meet the amount in
controversy required under 28 U.S.C. § 1332(a). See
Zahn, 414 U.S. at 301.
There is a second problem with defendants' argument that we have
subject matter jurisdiction. Defendants are seeking to have us
measure the requisite sum based on the total cost to the
defendants rather than on the separate harm to each plaintiff.
This we cannot do. In Packard v. Provident Nat'l Bank,
994 F.2d 1039 (3d Cir. 1993), the Court of Appeals had before it a class
action by trust beneficiaries claiming that the fees charged by
the trustee bank were unreasonable. Plaintiffs also sought
restitution of the fees and punitive damages. One of the issues
before the Court of Appeals was whether or not the plaintiffs had
met the amount in controversy requirement under 28 U.S.C. § 1332.
In an effort to sustain their position, the plaintiffs argued that
their complaint included a demand for injunctive relief and that
the amount in controversy should be calculated by the cost to the
defendant to comply. The Court of Appeals rejected this notion. It
In a diversity-based class action seeking primarily money damages,
allowing the amount in controversy to be measured by the defendant's
cost would eviscerate Snyder's holding that the claims
of class members may not be aggregated in order to meet the
jurisdictional threshold. We will not permit plaintiffs to do
indirectly that which they cannot do directly. Moreover, we have
stated that a plaintiff may not turn what is essentially a legal
claim into an equitable one merely by ...