This рutative class action for breach of contract and breach of fiduciary duty in the sale of securities was commenced by plaintiff Michael G. Gilman in New York State Supreme Court (New York County) and was removed, on the basis of diversity jurisdiction, to the United States District Court for the Southern District of New York by defendant BHC Securities, Inc. (“BHC”). BHC moved in federal court to dismiss the action on the grounds that (1) Gilman’s claims were preempted by federal law; and (2) there was no contractual or fiduciary relationship between BHC and Gilman. The district court dismissed the complaint on the preemption ground. On appeal, Gilman disputes, that his claims were preempted, but also argues that the district court lacked subject matter jurisdiction. We agree that the district court was without jurisdiction, and therefore we vacate the judgment and remand with instructions to remand the case to state court. We do not reach the issue of whether the claims in this case are preemptеd by federal law.
BACKGROUND
Gilman commenced this action on January 21, 1994, alleging various state law claims on
*1420
behalf of a putative class of all persons for whom BHC had executed securities transactions in which BHC received “order flow payments.” As the district court explained, “[p]ayment for order flow is the practice in the securities industry of brokers receiving payments from market makers or exchange specialists for having directed a volume of transactions to such market makers or exchange specialists for execution of the orders placed by investors.”
Gilman v. BHC Securities, Inc.,
No. 94-CV-1133 (AGS),
The complaint alleges that order flow payments are tantamount to kickbacks, and that BHC’s failure to disclose its receipt of such payments violated various New York statutes, “breached the fiduciary relationship between principal and agent, [and] violated the express and implied terms of the contracts between BHC and its customers.” Gilman pled ho federal claims. Although the complaint recites that the suit “is brought as a class action” on behalf of “several thousand” clients of BHC, there was apparently no ruling on class certification in the state court (and likewise none in the district court). It is undisputed that Gilman’s individual stake in this lawsuit — as well as that of every other member of the рutative class — is trivial, only a few cents per share traded. The complaint seeks: (a) compensatory damages both for “the amount of kickbacks and other inducements received [by BHC] from market makers for the execution of customer orders,” and for “the amounts of commissions received by BHC” from Gilman and the other class members for handling their securities transactions; (b) an unspecified amount of “punitive damages for commercial bribe receiving and fraudulent conduct”; (c) litigation costs; and (d) an injunction against BHC’s further acceptance of order flow payments.
On February 18, 1994, BHC removed Gil-man’s action to federal district court pursuant to 28 U.S.C. §§ 1441(a) and 1446. The petition averred that the district court had jurisdiction under 28 U.S.C. § 1332 because there was complete diversity of citizenship and because the amount in controversy exceeded $50,000. In support of its claim that the jurisdictional amount was satisfied, BHC stated, first, that “the relief sought is in the nature of a common fund for the benefit of the putative class members and in which each putative class member has a common and undivided interest,” and that the value of any such fund would exceed $50,000. Second, the petition predicted that Gilman would seek more than $50,000 in punitive damages, which would create another “common fund” in which “[e]ach putative class plaintiff would have a common and undivided interest.” 2
Gilman moved to remand the case to the New York State Supreme Court on April 18, 1994, arguing that each class member’s claim was “independent and individual,” and that no one could say “to a legal certainty” that each class member who transacted with BHC *1421 “could receive a punitive damage award of $50,000.” But Gilman withdrew the motion before it was decided, and the district court did not thereafter consider the issues of subject-matter jurisdiction that Gilman had raised.
On November 16, 1994, BHC moved to dismiss the complaint on the grounds that Gilman’s claims were preempted by federal law and that BHC had no contractual or fiduciary relationship with Gilman.
Gilman,
DISCUSSION
Although Gilman abandoned his remand motion challenging the district court’s jurisdiction, we are of course bound to consider his jurisdictional challenge now because “any party[,] ... at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction.”
United Food & Commercial Workers Union, Local 919 v. Centermark Properties Meriden Square, Inc.,
The party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court.
McNutt v. General Motors Acceptance Corp.,
For reasons expressed below, we hold that BHC has not met its burden of proof and that the district court therefore lacked subject matter jurisáiction. Accordingly, we vacate the dismissal of Gilman’s complaint and remand to the district court with instructions to remand the case to state court.
See Caterpillar Inc. v. Lewis,
— U.S. —, —,
Resolving this jurisdictional question entails consideration in some detail of the governing legal standards for Gilman’s claims, as well as their factual predicate. BHC does not cоntend that Gilman or any member of the class he purports to represent has an individual claim exceeding $50,000. BHC never disputes Gilman’s assertion that the “individual stake” of each class member “is relatively small,” totaling only “one [or] two cents per share” of stock traded through BHC, and points to no class member whose trading volume would support a claim exceeding $50,000. Instead, BHC argues that the class members — each of whom may have suffered only a trivial loss — “assert a common and undivided interest,” and that such claims, under “long established principles of diversity jurisdiction,” may be aggregated to satisfy the jurisdictional amount in controversy.
*1422
It is true that claims may be aggregated to reach the jurisdictional minimum “when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest.”
Zahn v. International Paper Co.,
A. The “Nan-Aggregation” Rule and the “Common Fund” Exception.
In
Snyder v. Harris,
Federal courts have applied the “non-aggregation” rule consistently in a variety of contexts.
See, e.g., Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia, S.A.,
An equally well-established principle is that “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.”
Troy Bank of Troy, Indiana v. G.A. Whitehead & Co.,
Courts apply the common fund doctrine, and permit aggregation of claims to satisfy the jurisdictional amount, “only when several parties have a common, undivided interest and a single title or right is involved.” 14A Charles A. Wright
et al.,
Federal Practice and Procedure § 3704, at 83 (2d ed. 1985). For example, aggregation of claims has been allowed in the following instances: the dis-tributees’ action in
Shields;
a wrongful death action asserted under a statute “creat[ing] a single liability on the part of the defendant” and permitting “but one action for the sole and exclusive benefit” of all surviving beneficiaries,
see Texas & P. Ry. Co. v. Gentry,
As one court expressed the principle, the “paradigm cases” allowing aggregation of claims “are those which involve a single indivisible res, such as an estate, a piece of property (the classic example), or an insurance policy. These are matters that cannot be adjudicated without implicating the rights of everyone involved with the res.”
Bishop v. General Motors Corp.,
B. The Compensatory Damages Claim.
BHC includes in its briefs, a lucid account of how order flow payments originate and operate. BHC describes itself as a “clearing broker” whose role is to “settle[ ] and elear[ ] trades and perform[] certain administrative and custodial functions” for so-called “introducing brokers” (or “retail brokers”), who deal with individual public customers and take securities orders from them.
See generally Stander v. Financial Clearing & Servs. Corp.,
The connection between payments made to brokers for order flow and the individual customer orders that helped generate the payments is somewhat attenuated. First, markеt makers customarily compensate brokers only periodically — monthly or quarterly — and the amount of the payment is based upon the total volume of trades executed during that period. Second, order flow payments ordinarily are made only to brokers that have provided the market makers with a certain threshold number of (relatively small volume) orders per period, typically a minimum of 100,000 shares compiled from trades involving 3,000 or fewer shares each. Joint Appendix at 56; Report of the Payment for Order Flow Comm. of the Nat’l Ass’n of Sec. Dealers, Inc., Inducements for Order Flow, at 15-16 (July 1991). Thus, the individual, low-volume trades of a single customer cannot be said to generate order flow payments to the brokers. Moreover, because brokers usually receive order flow payments only at the end of a period, it is probably impossible to match particular payments with particular retail trades. 6
For these reasons, BHC argues that the class members “jointly seek the benefits that accrued to BHC from [] aggregated order flow.” Appellee’s Brief at 19. According to BHC, therefore, “the amount in controversy is based on a common right in which each putative class member has a common and undivided interest.” Id. We-are presented with a close question, tenaciously argued on both sides, but ultimately we disagree with BHC’s analysis and conclude that the plaintiffs’ claims to BHC’s order flow payments are separate and distinct and cannot be aggregated to satisfy the amount in controversy.
Because the class members in this case do not in any sense possess joint ownership of, or an undivided interest in, a common res, their claims based on order flow payments are separate and distinct. Plaintiffs in paradigm “common fund” cases assert claims to a piece of land, a trust fund, an estate, an insurance policy, a lien, or an item of collateral, which they claim as common owners or in which they share a common interest arising under a single title or right. Gilman and his putative class have no joint interest other than a shared appetite for a money judgment payable by a single defendant — which is not the type of “common and undivided interest” that warrants an exception to the rule against aggregating claims.’ Under the rule of Snyder, Zahn, and the other cases cited herein, the plaintiffs’ claims should have been dismissed for failure to satisfy the requisite amount in controversy.
1. Aggregation of Order Flow Payments.
BHC’s primary argument emphasizes that order flow payments depend on the “aggregate volume” of trading orders provided to market makers and cannot be traced to specific orders placed by individual investors. Therefore, BHC asserts, the claim here is “based on a common right” in which each class member has a common and undivided interest; and because the claim seeks to capture the benefits that accrued to BHC from the aggregation of customer orders, the entire amount of the order flow payments should be “considered in the aggregate” for purposes of determining the amount in controversy. We disagree.
All of BHC’s customers allegedly suffered similar losses due to BHC’s handling of their securities trades; nonetheless, though their claims are asserted together in a class action, the plaintiffs never
possessed
anything in common prior to the litigation. The only
*1425
right or title allegedly held by the customers is the right to sue BHC for the undisclosed extracontractual benefit that BHC derived from their securities trades; that right is distinct to each plaintiff, and is based on BHC’s handling of that person’s separate transactions. Had this case proceeded to the stage of class certification in either the state or federal court, it seems clear that each class member would have had the right to opt out of the class.
7
The facts that BHC pooled the plaintiffs’ trading orders to receive benefits, and that the market makers conferred such benefits on the basis of the monthly volume of orders that they received, does nоt mean that the plaintiffs held joint title to the total volume of their orders or to the aggregate of the allegedly wrongful order flow payments generated by such volume.
See Dumont v. Charles Schwab & Co., Inc.,
Civ. A. No. 95-0606,
The complaint alleges that BHC breached contractual and fiduciary duties to its customers by accepting “the payment of cash ... in return for BHC executing the customer’s order with [a] market maker.... [W]hen the plaintiff, or another class member, would execute an order[,] ... BHC would retain [an order flow payment] for its own benefit and not that of its customer.” Joint Appendix at 12-13 (emphasis added). 9 *1426 On the face of the complaint, therefore, the plaintiffs’ suit alleges that BHC’s receipt of order flow payments harmed each individual customer in the conduct of that customer’s individual securities transactions. Not coincidentally, the SEC regulations requiring disclosure of ordеr flow payments compel brokers to disclose to their customers (in confirmation of securities transactions) not only “whether payment for order flow is received by the broker or dealer for transactions in [that type of] securities,” 17 C.F.R. § 240.10b-10(a)(7)(iii), but also — upon an individual customer’s written demand — “the source and nature of the payment for order flow [that is] received in connection with the particular transaction” of that individual customer. Payment for Order Flow, SEC Release No. 34-34902, 59 Fed.Reg. 55,006, 55,010 (Nov. 2, 1994) (emphasis added).
In short, although the class action device allows the plaintiffs to combine their claims for convenience, neither that form of action nor the nature of order flow payments permits the aggregation of the. plaintiffs’ separate and.distinct claims so as to satisfy the amount in controversy.
2. Recovery From a Single Fund.
BHC’s second major argument in support of federal jurisdiction is that the class members have a “common and undivided interest” in recovering from a “fund,” and that the total value of that fund should be used to determine whеther the jurisdictional minimum has been reached. BHC bases this argument on its assertion that the plaintiffs “seek[ ] disgorgement of all benefits of payments for order flow” received by BHC, “whether identifiable to a particular transaction or not.” Appellee’s Brief at 17 (emphasis in original). Because this right to disgorgement (BHC contends) necessarily depends on the theory that BHC breached a fiduciary duty to the class as a whole, the object of the plaintiffs’ suit can only be to “share in the[] fruits [of BHC’s breach] based on the total amount of disgorgement,” and not on the basis of individual plaintiffs’ trades with BHC. Id. at 22 (emphasis added). BHC thus concludes that the claims to recover its order flow payments are “held jointly by the plaintiffs,” and the “entire amount of the benefits ... [should] be considered for jurisdictional purposes.” Id. at 17.
Preliminarily, BHC’s reading of the complaint overstates the contentions and goals of the class. The complaint (1) alleges that “plaintiff and the other members of the class are entitled to recover any monies paid as kickbacks or commercial bribes to BHC on customer transactions”; and (2) seeks a judgment “[Requiring ... BHC to pay to plaintiff and the members.of the class the amount of kickbacks and other inducements received from market makers for the execution of customer orders.” Joint Appendix at 16, 20. While BHC views these passages as a “specific claim” that BHC disgorge all order flow payments that it received for all of its customer transactions, “whether identifiable to a particular transaction or not,” Appellee’s Brief at 17, 19, we think this reading adds considerable gloss. The quoted sections of the complaint are not at all inconsistent with a collective demand by the class members for the disgorgement of order flow payments received in respect of their individual transactions, as accurately as that amount can be calculated. 10
Even if BHC’s reading of the complaint were sound, the plaintiffs’ claims still cannot be aggregated because the class members have no common and undivided interest in the “fund” of damages that they might re
*1427
ceive. BHC’s argument to the contrary rests almost entirely on the First Circuit’s opinion in
Berman v. Narragansett Racing Ass’n,
BHC contends that, just as the “fund as a whole” was created to benefit either the tracks or the owners “as an entity” in
Berman,
the order flow payments in this case belong either to BHC or “to the purported class as an entity” because no individual customer transactions could generate the payments. But the crucial fact upon which
Ber-man
turned is that, under the disputed purse agreements in that case, no single plaintiff could claim an individual entitlement to any portion of the disputed prize money, because the agreements obligated the tracks to pay a certain percentage of their annual shares “to the
growp of owners
whose horses win purses.”
If the rationale of Berman is sound, it does not apply here, where Gilman alleges (and BHC does not for present purposes dispute) that BHC accepted order flow payments for handling securities transactions involving the class members’ individual trading orders. BHC’s argument — that its disgorgement of order flow payments would produce a common fund in which all class members would have a common and undivided interest — proceeds from the wrong-point: the disgorgement of the payments to create the “fund.” Such a “fund” is created to facilitate the litigation process in virtually every class action, and has nothing necessarily to do with whether the plaintiffs shared a pre-existing (pre-litigation) interest in the subject of the litigation.
Under the classic “common fund” cases, what controls is the nature of the right asserted, not whether successful vindication of the right will lead to a single pool of money that will be allocated among the plaintiffs.
See Pierson v. Source Perrier, S.A.,
In summary, BHC points to certain unitary characteristics of the plaintiffs’ claims in order to avail itself of the “common fund” doctrine: the aggregation of the stock transactions on which order flow payments are made; the overall benefit that BHC derives *1428 from those payments (and that Gilman seeks to capture); and the single pot that would be created to receive and distribute damages. But these features of the case do not demonstrate a unitary claim; they merely reflect the problems of theory and proof in this case, and the named plaintiffs efforts to solve or plead around them.
Reliance on the aggregation of the transactions is Gilman’s attempt to deal with the facts that (i) the benefit to BHC cannot be assigned to particular transactions or to activity in any single customer’s account, and that (ii) any harm to plaintiffs is similarly elusive. Reliance on the device of a single pot from which the claimants would draw their damages is Gilman’s effort to deal with the fact that damages (if any) cannot be proven or distributed on the basis of any single customer’s transactions. It is of course commonplace to collect class action damages whоlesale, put the proceeds in a single fund, and distribute the proceeds retail upon a showing of specific entitlement in accordance with the judgment. Thus, the aggregation of transactions and the pooling of damages are simply expedients of litigation and pleading that facilitate Gilman’s efforts: (a) to show the existence of á duty to him and the other class members; (b) to demonstrate causation sufficient to justify reallocating the order flow payments from BHC to its customers; and (c) to collect damages for any or all of the claimants.
BHC’s effort to aggregate the transactions and damages in this case fails to satisfy its burden of proof concerning the amount in controversy.
C. The Punitive Damages Claim.
BHC’s third argument is that it “believes” that the plaintiffs as a class will seek punitive damages exceeding $50,000, and that this full amount should be deemed the amount in controversy for jurisdictional purposes because “claims for punitive damages are, by their nature, collectivе and should be treated as a common and undivided claim for jurisdictional purposes.” Appellee’s Brief at 17. BHC relies on a line of authority that has developed for the proposition that where multiple plaintiffs file a joint claim for punitive' damages, the total sum claimed should be attributed to each individual plaintiff in determining whether each has satisfied the $50,000 jurisdictional minimum.
See, e.g., Allen v. R & H Oil & Gas Co.,
Gilman’s prayer for punitive damages does not specify a dollar amount. BHC expresses its “belie[f|” that such damages will “undoubtedly” exceed $50,000, but offers no proof of the amount likely to be claimed. We have held that “if the jurisdictional amount is not clearly alleged in the plaintiffs complaint, and the defendant’s notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiffs action from state court.”
Lupo v. Human Affairs Int’l, Inc.,
BHC’s conclusory prediction as to the
amount
of damages that the plaintiffs will claim is arguably insufficient to carry its burden of establishing by a preponderance of evidence the amount in controversy.
See McNutt v. General Motors Acceptance Corp.,
BHC relies principally on
Allen,
As to the first factor, the Fifth Circuit determined that punitive damages under Mississippi law were “fundamentally collective,” and that each plaintiff had “an integrated right to the full amount” of any such award. Id. at 1333-34. This was because the primary purpose of punitive damages in Mississippi was to protect society “by punishing and deterring wrongdoing,” and because there can be no claim of right to punitive damages, which are always within the discretion of the trier of fact. Id. at 1333. As to the second factor, the court acknowledged that defendants faced “the potential for multiple liability” for punitive damages, and that plaintiffs’ “undivided interest” in being awarded such damages therefore could not be considered “common in the sense that there is one and only one award that they would split equally.” Id. at 1334. Notwithstanding the “seeming anomaly of multiple exposures,” the Fifth Circuit refused to hold that the punitive damages claims were separate; this harsh result, the court concluded, was justified by (and tolerated as a price of) the public goals of punishment and deterrence. 11 Id.
Tapscott,
issued after BHC filed its brief in this appeal, held that punitive damages claims based on alleged statutory violations in the sale of automobile service contracts could be considered in the aggregate for purposes of determining the amount in controversy.
We decline to join the courts holding that punitive damages claims are by nature “common and undivided” and therefore aggregable for jurisdictional purposes. We think that the rule in
Snyder, Zahn,
and other eases bars the aggregation of punitive damages claims absent a prior determination that the underlying claim — the basis on which such damages are sought — asserts a single title or right.
See Zahn,
BHC’s common fund argument on punitive damages is substantially similar to its common fund argument on the underlying claim, which we have rеjected. Gilman and the putative class members may indeed share an interest in receiving damages, but that has nothing to do with whether — prior to litigation — they jointly held a single title or right in which each possessed a common and undivided interest. It is irrelevant whether successful vindication of claims would create a single pool of recovery to be allocated among multiple plaintiffs; a common interest in a pool of funds is not the type of interest that permits aggregation of claims under the “common fund” doctrine.
See Visintine,
One feature of “common and undivided” interests in a single title or indivisible res is that the rights to such interests cannot be determined without implicating the rights of every other person claiming a similar entitlement. Manifestly, punitive damages do not work that way. As the court in
Allen
acknowledged, punitive damage claims entail the “potential for multiple liability.”
*1431
We hold, therefore, that punitive damages asserted on behalf of a class may not be aggregated for jurisdictional purposes where, as here, the underlying cause of action asserted on behalf of the class is
not
based upon a title or right in which the plaintiffs share, and as to which they claim, a common interest. To hold otherwise, and aggregate punitive damages even when the actual damages could not be aggregated, “would eviscerate the holdings of
Snyder
and
Zahn
and would run counter to the strict construction of the amount-in-controversy requirement those cases mandate.”
Visintine,
Even if we were to follow the Fifth and Eleventh Circuits, and allow the aggregation issue to turn on the nature of punitive damages under state law, we think that the New York law of punitive damages supports (or at the very least does not contradict) our conclusion. It is true that in New York (as in Mississippi and Alabama) “the purpose of punitive damages is solely to punish ... and to deter,”
Zurich Ins. Co. v. Shearson Lehman Hutton, Inc.,
CONCLUSION
For the reasons set forth above, we vacate the judgment of the district court and remand with instructions to remand to state court.
Notes
. The petition also references Gilman’s claim for an injunction against BHC's collection of order flow payments, and asserts that, “where injunctive relief is sought, the amount in controversy may be measured by the value of the object of the litigation or the stake to the defendant, which is in excess of $50,000.” We do not address this claim because BHC has apparently abandoned it on appeal and has made no showing as to what the cost of complying with such an injunction would be. In any event, the soundness of such a jurisdictional premise is not obvious.
See, e.g., Packard v. Provident Nat'l Bank,
. In a class action, there is diversity of citizenship if each named plaintiff is of diverse citizenship as to each defendant.
See Snyder v. Harris,
. The recently enacted increase of the jurisdictional amount to $75,000 applies only to cases filed on or after January 17, 1997. See Federal Courts Improvement Act of 1996, § 205, Pub.L. No. 104-317, 110 Stat. 3847, 3850 (1996).
. BHC asserts that "[p]ayment for order flow is a well recognized, industry-wide practice, permitted by the self-regulating organizations that monitor the securities industry.” Appellee's Brief at 5. Because we have limited our inquiry here to determining whether the nature and use’ of order flow payments warrant the aggregation of claims related to those payments for jurisdictional purposes, we do not consider arguments that bear on the merits of Gilman’s claims — such as BHC’s arguments concerning the legitimacy or legality of its actions.
. In BHC’s words, "no individual customer's order alone resulted in BHC receiving [order flow] payments, ... [and] the payments [are not] attributable to any individual transactions." Ap-pellee's Brief at 19.
. Under Rule 23(c)(2) of the Federal Rules of Civil Procedure, a class action based on common "questions of law or fact” among the claimants — -as was pleaded in this case — requires notice to each class member advising that "the court will exclude the member from the class if the member so requests.” Fed.R.Civ.P. 23(c)(2). Similarly, N.Y.C.P.L.R. § 904 (McKinney 1976) requires that in all class actions
not
brought primarily for injunctive relief — also thе case here— "reasonable notice of the commencement of [the] class action shall be given to the class,” the content of such notice to be based in part on a consideration of “the likelihood that significant numbers of represented members would desire to exclude themselves from the class.” N.Y.C.P.L.R. § 904(b) and (c).
See also
N.Y.C.P.L.R. § 903 (McKinney 1976) ("The order permitting a class action shall describe the class[; and] the court may limit the class to those members who do not request exclusion from the class ....”);
id.
Supplementary Practice Commentary by Honorable Joseph M. McLaughlin (McKinney 1976 & Supp.1997) ("it is hard to conceive of a case where a class action [for monetary damages] may proceed without giving the class members the option to opt out"). Obviously, plaintiffs who can opt out cannot be considered parties "necessary” to the determination of the rights at stake; and the object of the plaintiffs’ suit in such a case therefоre does
not
constitute "a single indivisible res ... that cannot be adjudicated without implicating the rights of everyone involved with the res.”
Bishop v. General Motors Corp.,
. BHC distinguishes
Dumont
on the ground that the plaintiffs in that case sought damages “based entirely upon their own individual stock purchases,” while the plaintiffs here seek “disgorgement of all payment for order flow, whether attributable to a particular transaction or not.” Appellee's Brief at 29 n. 11;
see Dumont,
BHC also fails adequately to distinguish
Gilman v. Wheat, First Secs., Inc.,
.The complaint further states that “plaintiff and the class members suffered not only the loss of [order flow payments] which properly belonged to them, but also received less or paid more in the execution of their transactions than they *1426 would have paid if BHC diligently had searched for the best execution available without regard to its own personal profit." Joint Appendix at 17 (emphasis added).
. The complaint explains the receipt of order flow payments as "the payment of cash by the market maker to BHC in return for BHC executing the customer’s order with the market maker,” so that "when the plaintiff, or another class member, would execute an order ... BHC would retain [the order flow payment] for its own benefit and not that of its customer.” Joint Appendix at 13 (emphasis added). “As a result, plaintiff and the class members suffered ... the loss of [order flow payments] which properly belonged to them....” Id. at 17 (emphasis added). Given the context, we do not believe that the language of Gilman's complaint alone satisfies BHC's burden of establishing that the claims here should be aggregated because the plaintiffs seek to recover from a common fund.
.The Fifth Circuit denied rehearing and rehearing en banc in
Allen,
but in so doing it explicitly qualified its earlier holding: "[T]he panel is of the unanimous view that the opinion in this case specifically reflects a result under the Mississippi law of punitive damages and is not to be construed as a comment оn any similar case that might arise under the law of any other state.”
Allen v. R & H Oil & Gas Co.,
Significantly, the
Allen
opinion never holds that plaintiffs share a common and undivided interest in punitive damages. Rather, the court concluded that punitive damages "do not fall neatly into either the 'non-aggregation' caselaw or the ‘common and undivided interest’ exception,” and only the "unique nature” of punitive damages under Mississippi law permitted their aggregation for jurisdictional purposes.
Allen,
.The Eleventh Circuit expressly limited its decision in
Tapscott:
"Our holding in this case is not to be taken to establish a bright line rule that any class claim for punitive damages may be aggregated to meet the amount-in-controversy requirement."
. The Supreme Court reaffirmed in
BMW of North America, Inc. v.
Gore, — U.S. —, —,
Given the small individual claims assertable by Gilman and the putative class members in this case, a $50,000 punitive damage award to each or any member of the class would likewise " ‘raise a suspicious judicial eyebrow,’ ”
id.
at —,