
    FIDELITY WARRANTY SERVICES, INC., Plaintiff, v. Billy KIDD, Defendant.
    No. Civ.A. 98-AR-2042-M.
    United States District Court, N.D. Alabama, Middle Division.
    March 16, 1999.
    Opinion Denying Reconsideration April 22, 1999.
    
      Jere F White, Jr, John Q Somerville, Lightfoot Franklin & White LLC, Birmingham, AL, for Fidelity Warranty Services, Inc, plaintiff.
    Barry A Ragsdale, Ivey & Ragsdale, Birmingham, AL, for Billy Kidd, defendant.
   MEMORANDUM OPINION

ACKER, District Judge.

The court has before it a motion filed by defendant, Billy Kidd (“Kidd”), seeking a dismissal of the above-entitled action brought by plaintiff, Fidelity Warranty Services, Inc. (“Fidelity”). The only relief sought by Fidelity is to compel Kidd to arbitrate a dispute between the parties. The jurisdiction of this court is invoked on the basis of diversity of citizenship. The parties have briefed and argued the threshold questions as they view them, but the court is obligated to examine its own subject matter jurisdiction, and, if it determines that it lacks jurisdiction, it is required to dismiss the action sua sponte.

The jurisdictional facts are undisputed. Kidd filed a putative class action in the Circuit Court of Bibb County, Alabama, against three defendants, Fidelity, Limbaugh Toyota, Inc. (“Limbaugh”), and First Merchant Acceptance Corporation (“First Merchant”). Kidd’s, Fidelity’s and First Merchant’s citizenships are diverse. Kidd’s and Limbaugh’s citizenships are non-diverse. Kidd’s state court complaint has several aspects. First, it anticipates a reliance by one or more of the defendants upon an arbitration clause contained in the sales agreement between Kidd and Limbaugh that is the central subject of the controversy. This agreement constitutes the documentation of the sale of an automobile by Limbaugh to Kidd. Kidd alleges that the clause is an “adhesion contract,” “was drawn up by defendants” and was the result of misrepresentation by defendants. In other words, the arbitration clause that Fidelity seeks to enforce is under attack by Kidd in the state court. But Kidd’s main claim, upon which he seeks to represent a class of similarly situated persons, is that there are hidden charges in the vehicle purchase agreement, that in the simultaneous loan transaction the charges were purposefully concealed, and that the charges are illegal and due to be cancelled under the law of Alabama. Kidd’s complaint further contains a careful disclaimer, made on behalf of all members of his putative class, disavowing all claims by each plaintiff to any sums in excess of $74,000, and expressly waiving punitive damages. Kidd’s complaint is crafted to meet the stringent pleading requirements recognized by this court in Horton v. Alliance Mortgage Company, CV-98-AR-0581-S, 1998 WL 1006321 (N.D.Ala. Apr. 28, 1998), as a viable way to defeat any attempt to remove a putative class action from a state to a federal court.

In endeavoring to obtain entry to this court pursuant to 28 U.S.C. § 1332(a)(1), Fidelity alleges: “The value to Fidelity of the relief sought herein exceeds $75,000, exclusive of interest and costs.”

Kidd challenges this court’s jurisdiction, first alleging an absence of the requisite amount in controversy for a diversity removal. The court agrees that the jurisdictional amount is lacking, but for a reason not pointed out by Kidd, who premises his contention upon the carefully drafted monetary limitations in his state court complaint. Kidd next argues that Limbaugh is an indispensable party, so that the required complete diversity of citizenship is lacking. This court might go along with either or both of Kidd’s said arguments, if it were not for another, more devastating, jurisdictional defect to be discussed infra.

Alternatively, Kidd questions Fidelity’s standing to enforce the subject arbitration clause, arguing that Fidelity is not a signatory to the contract containing the clause. Again, the court might agree with Kidd if there were a sufficient jurisdictional basis to trigger a look at the question of standing. Kidd’s various contentions in support of his motion to dismiss are, to say the least, intriguing. At another time and place they would be worthy of comment. But they are mooted in this case by what this court finds to be an unmentioned, initial, insurmountable jurisdictional obstacle.

The court starts with the sometimes overlooked proposition that the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, is not a jurisdictional statute. The FAA provides nothing more than a remedy, both in federal and in state court, where there is a written agreement providing for the arbitration of disputes between the parties. The statute has a broad remedial application where interstate commerce is implicated in the slightest degree. However, there must be an independent basis for federal jurisdiction in order to obtain the FAA remedy in a federal court. Baltin v. Alarm Trading Corp., 128 F.3d 1466 (11th Cir.1997). Therefore, the ultimate jurisdictional question in the present case becomes: “Has Fidelity sufficiently demonstrated the existence of $75,000 or more in controversy?” The answer, provided by Ericsson GE Mobile v. Motorola Communications, 120 F.3d 216 (11th Cir.1997), is “No.”

The opinion in Ericsson GE was written for the Eleventh Circuit by Judge Kravitch, who also wrote for the Eleventh Circuit in Baltin, supra. In Ericsson GE, the Eleventh Circuit concluded that the federal court lacked jurisdiction over an action brought by Ericsson GE (“EGE”), whose proposal to the City of Birmingham for a communications system had been rejected by the City in favor of a competing proposal by Motorola. EGE sought a federal injunction against the implementation of a multi-million dollar contract that had already been executed between the City and Motorola. EGE invoked 28 U.S.C. § 1332 as its basis for federal jurisdiction. Because the subject matter involved millions of dollars, EGE, without hesitation, alleged, in conelusory fashion, the existence of the amount in controversy necessary for § 1332 jurisdiction. Simply put, EGE claimed that the Motorola contract was invalid under Alabama’s competitive bid law because it was the result of chicanery. The Eleventh Circuit held:

Although we recognize that there are persuasive arguments to support the adoption of the either-viewpoint rule, as a panel of this court, we remain bound to follow the plaintiff-viewpoint rule regardless of the wisdom we may attach to it. Only an en banc decision of this court or an intervening decision of the Supreme Court can alter the controlling law of this circuit.

B. Value of the Object of the Litigation

Having determined that the plaintiff-viewpoint rule governs, we now consider whether EGE has alleged an amount in controversy sufficient to satisfy the diversity statute. We first must determine the remedies available to EGE under Alabama law, and then consider the monetary value of the available relief.
* * * * * *
Based on these cases, it appears to a legal certainty that EGE can obtain only an injunction voiding the contract entered into by the City and Motorola. We must now determine whether the value of this injunctive relief to EGE is sufficiently measurable and certain to satisfy the $50,000 [how $75,000] amount in controversy requirement of the diversity statute.
* * * * * *
Any benefit that EGE could receive from the injunctive relief awardable by the district court — namely, the chance to rebid for the contract — is, in our view, too speculative and immeasurable to satisfy the amount in controversy requirement.

120 F.3d at 220-222 (footnote omitted) (emphasis supplied).

These expressions in Ericsson GE fit the present case like a glove. Fidelity is the plaintiff here. It is the plaintiffs viewpoint from which the amount in controversy is to be ascertained. What is the “value to Fidelity of the relief it seeks,” i.e., the right to have Kidd’s claim against it decided by an arbitrator, as distinguished from its being decided by a court and/or jury? Plaintiffs bare, conclusory allegation that “the value to Fidelity of the relief sought herein exceeds $75,-000” is no more than wishful jurisdictional thinking. It is virtually identical to the wishful thinking indulged by EGE in Ericsson GE. It may be, as Fidelity alleges, that an arbitrator would give Kidd more than $75,000 less than a court and jury would give him, but how can anybody know? When there is no reasonable way to predict the outcome of a controversy in one forum as opposed to another, the descriptive words “speculative” and “immeasurable” come to mind. It is simply impossible to measure, or to quantify with any degree of certainty, the “value to Fidelity” of the mere right to an arbitration proceeding. The ultimate conclusion reached by the Eleventh Circuit in Ericsson GE was:

We therefore hold that EGE has failed to satisfy the $50,000 amount in controversy requirement of 28 U.S.C. § 1332.

120 F.3d at 222.

Purloining the Eleventh Circuit’s precise and here appropriate language, this court finds that Fidelity “has failed to satisfy the $75,000 amount in controversy requirement of 28 U.S.C. § 1332.”

A separate sua sponte order dismissing this action without prejudice will be entered.

MEMORANDUM OPINION

Plaintiff, Fidelity Warranty Services, Inc. (“Fidelity”), filed a timely motion pursuant to Rule 59 F.R.Civ.P., asking this court to reconsider its order dismissing Fidelity’s action without prejudice for lack of subject matter jurisdiction. Fidelity’s motion was orally argued after a responding brief was filed by defendant, Billy Kidd (“Kidd”). Fidelity supports its motion not only with a brief but with an affidavit from its senior vice president. That affidavit says: “A quick, efficient, out-of-court resolution by arbitration of the individual claims brought by Kidd against Fidelity Warranty, pursuant to the arbitration agreement that Kidd entered into is worth in excess of $75,000.00 to Fidelity Warranty.” Conspicuously, Fidelity’s counsel offer no binding commitment (comparable to Kidd’s commitment that no plaintiff in his putative class action will seek or accept more than $74,000) that the difference between their fees for providing Fidelity’s defense in state court will exceed by more than $75,000 the fees they will charge for representing Fidelity in the proposed arbitration proceeding.

It is a simple matter for a person to hold an opinion of the “worth” of an intangible. Fidelity concedes that Ericsson GE Mobile Communications, Inc. v. Motorola Communications & Electronics, Inc., 120 F.3d 216 (11th Cir.1997), recognizes a diversity plaintiffs obligation to satisfy the federal court from plaintiffs viewpoint that the amount in controversy exceeds $75,000 if he wants entry. This court fondly remembers its former life as an advocate. He occasionally had clients who were willing to pay sizeable fees to litigate over matters of “principle” that they deemed important, i.e., “valuable.” In fact, the undersigned is himself now a party to a case pending in the Supreme Court of the United States in which the monetary amount in controversy is much less than $75,000, but the principle is worth fighting for. There, reasonable attorneys fees may very well exceed $75,-000. The undersigned honestly places a “value” in excess of $75,000 on the resolution of the issues in that case. Others, in all honesty, disagree with that evaluation.

Fidelity’s affiant can only be talking about the precedential value of a grant of Fidelity’s request for arbitration. Ericsson GE could have fairly and sincerely alleged in its complaint against Motorola that the precedential value of a cancellation of the multimillion dollar contract between Motorola and the City of Birmingham was worth more than $75,000 to Ericsson GE. Such an allegation would, however, not have affected the outcome in Ericsson GE. The Eleventh Circuit would not have found that such a self-serving evaluation of the unmeasurable can boot-strap jurisdiction. Precedential value and value quantifiable in terms of money are two different things. One remains speculative. The other can be reduced to money-in-the-bank.

Kidd continues to insist that the value to Fidelity of its claimed right of arbitration is limited by the amount Kidd is suing it for in the state court, namely, $74,000. The court would agree if Kidd’s pending case in the state court were an individual case and not a putative class action. Kidd can avoid the removal of a putative class action by limiting in advance and forever the ad damnum of each potential class member, but he cannot use that same device as a bar to an original action filed in a federal court, such as Fidelity’s action here, when the aggregate recovery, if a class is certified and plaintiffs succeed on the merits, will likely exceed $75,000 despite each individual’s disclaimer.

In this court’s opinion, the speculative nature of Fidelity’s right to arbitrate under the Ericsson GE analysis remains an unsurmountable obstacle to diversity jurisdiction. Accordingly, Fidelity’s Rule 59 motion will be denied by separate order.  