                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT
                              _______________

                                No. 98-60582
                              _______________

                              WILLIE L. BAILEY
                                     and
                               JUSTIN BAILEY,

                                                 Plaintiffs-Appellants,

                                    VERSUS

            UNITED STATES FIDELITY AND GUARANTY COMPANY,

                                                 Defendant-Appellee.

                        _________________________

            Appeal from the United States District Court
              for the Northern District of Mississippi
                          (4:97-CV-133-S-B)
                      _________________________

                                May 10, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

            Willie and Justin Bailey (the “Baileys”) sued United

States Fidelity & Guaranty Company (“USF&G”) for $500,000 in

compensatory damages and $12 million in punitive damages each

following their discovery of a billing error by USF&G that caused

them to pay an extra $531 in insurance premiums over a three-year

period.    The district court entered summary judgment for USF&G.

Because the claim for $25 million does not in good faith meet the

amount in controversy requirement of 28 U.S.C. § 1332, we vacate


      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
and remand for entry of a judgment of dismissal for want of

jurisdiction.



                                         I.

     On    August   9,   1994,    Eric       Holloway   was   killed   when   his

motorcycle crashed into the rear of a truck that Justin Bailey was

driving.      The   Baileys’     insurer,      USF&G,   promptly   settled    any

potential claims that the Holloway heirs might have, via a $25,000

payment to those heirs.

     The Baileys filed an uninsured motorist claim with USF&G for

approximately $1,000 to cover minor damage to their truck and the

cost of a rental vehicle.         On September 26, USF&G offered to pay

the Baileys 80% of their uninsured motorist claim.                 The Baileys’

response to this offer was “thanks but no thanks,” because they did

not wish to be a part of any agreement that implied that Justin

Bailey was 20% at fault.         Thereafter, the Baileys did not pursue

this claim.

     Two years later, the Baileys noticed that their automobile

insurance bill had gone up, resulting from a surcharge stemming

from the accident.       This surcharge was in contravention of the

terms of the policy, as USF&G discovered and acknowledged during

the discovery phase of this litigation.                  In response to this

discovery, USF&G refunded the $531 in surcharge it had collected

and even paid the entirety of the Baileys' 1994 uninsured motorist

claim, which USF&G was under no apparent legal obligation to do.




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                                       II.

     The Baileys did not drop their complaint against USF&G, but

rather continued full steam ahead, alleging a variety of harms

stemming    from   USF&G’s      “negligence,”     “gross    negligence,”      and

“reckless disregard.”        As best the district court could discern,

the Baileys’ claims were for (1) USF&G’s initial denial of their

1994 uninsured motorist claim; (2) USF&G’s settlement of the

potential    Holloway     claim     without      the   Baileys'     permission;

(3) USF&G’s imputation of fault to Justin Bailey via the offer to

compensate the Bailey’s for only 80% of their uninsured motorist

claim; and (4) intentional or reckless imposition of a surcharge to

the Baileys’ insurance premiums in contravention to the terms of

the insurance policy, despite the subsequent refund.



                                       III.

     Given that the Baileys’ monetary damages stemming from the

mistaken surcharge ($531) and the original “denial” of their

uninsured motorist claim (approximately $1,000) total barely over

$1,500,    and   given   that    the   Baileys    already   have    been   fully

compensated for these harms (even if they were not necessarily

entitled to such compensation), the Baileys cannot, in good faith,

claim damages totaling $25 million. Their presumable rationale for

their $25 million claim is that (1) USF&G’s decision to assume 20%

responsibility     on    the    part    of    Justin   Bailey      amounted   to

“defamation,” and (2) USF&G’s clerical error, resulting in a $531

premium surcharge over three years, constituted the intentional (or


                                        3
reckless) infliction of “emotional pain” and “mental anguish.”

These arguments are frivolous, and as such lack the good faith

basis needed to fulfill the amount in controversy requirement of

28 U.S.C. § 1332.     See CHARLES A. WRIGHT, LAW   OF   FEDERAL COURTS § 33,

at 199 (5th ed. 1994).

     Generally, in tort cases, “the plaintiff’s allegation of the

amount in controversy is entirely controlling for purposes of a

federal court’s subject matter jurisdiction under the diversity

statute.”   Pupkar v. Tastaca, 999 F. Supp. 644, 645 (D. Md. 1998)

(citing Barbers, Hairstyling for Men & Women, Inc. v. Bishop,

132 F.3d 1203, 1205 (7th Cir. 1997)).      The plaintiff’s allegation

will not control, however, in those instances in which it is not

made in good faith.   Burns v. Anderson, 502 F.2d 970, 971 (5th Cir.

1974); Rosenboro v. Kim, 994 F.2d 13, 16 (D.C. Cir. 1993).          And, as

one court observed, "Because the federal judiciary has been too

timid to execute the congressional mandate in [tort litigation], we

have all contributed to clogging dockets, monopolizing trial rooms,

and committing the expense and energies of our system to a plethora

of cases which do not belong in federal courts."           Grady v. Dayton

Hudson Corp., 610 F. Supp. 258, 259 (E.D. Mich. 1985).

     In Burns, we held “to a legal certainty” that a plaintiff’s

unliquidated damages tort claim based on a minor injury to his

thumb could not meet the amount in controversy requirement of

18 U.S.C. § 1332 (which was then only $10,000).                 See Burns,

502 F.2d at 972.   The instant case is reminiscent of Burns, in that

the Baileys’ unliquidated tort damages claims are patently absurd


                                   4
and devoid of any potentially reasonable support on the limited

record before us.      As such, the $75,000 amount in controversy of

18 U.S.C. § 1332 has not been met, so the district court was

without jurisdiction.

      On remand, the district court may wish to consider, in its

discretion,     the   propriety   of       sanctions,   for     frivolous   and

groundless pleadings, under FED. R. CIV. P. 11.               A district court

can   levy    sanctions   even    if   it     is   without     subject   matter

jurisdiction.     See Willy v. Coastal Corp., 503 U.S. 131 (1992).

Because of the frivolous nature of these plaintiffs' invocation of

federal jurisdiction, we tax appellate costs against them.

      VACATED and REMANDED.




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