236 F.3d 1292 (11th Cir. 2001)
Chester SMITH, individually and on behalf of all others similarly situated, Merle Fisher, individually and on behalf of all others similarly situated, et al., Plaintiffs-Counter-Defendants-Appellants, Cross-Appellees,v.GTE CORPORATION, GTE South, Inc., Defendants-counterclaimants-Appellees, Cross- Appellants.
No. 99-12833.
United States Court of Appeals, Eleventh Circuit.
January 4, 2001.January 16, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeals from the United States District Court for the Middle District of  Alabama. (No. 97-00102-CV-D-S), Ira De Ment, Judge.
Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.
CARNES, Circuit Judge:


1
In this putative class action suit, the plaintiffs assert various state law  claims based on an alleged scheme by the defendants, GTE Corporation and GTE  South, Inc. (collectively "GTE"), to defraud their customers into leasing  telephones and paying exorbitant lease charges. GTE filed a motion to dismiss,  contending that the Alabama Public Service Commission ("APSC"), which regulates  public utilities operating in that state, has exclusive jurisdiction over the  plaintiffs' claims. Alternatively, GTE argued APSC has primary jurisdiction over  the claims and that the district court should abstain until the plaintiffs'  claims were presented to and reviewed by the APSC. Relying on the primary  jurisdiction doctrine, the district court concluded that the plaintiffs should  first present their claims to the APSC and for that reason dismissed the suit  without prejudice. The plaintiffs appealed.


2
We vacate the district court's order and remand with directions that the case be  dismissed on the grounds that federal courts lack subject matter jurisdiction  over this state law case because there is an insufficient amount in controversy  for diversity jurisdiction to exist, and no federal law question in the  complaint for federal question jurisdiction to exist.

I. BACKGROUND

3
The origin of this lawsuit lies in the deregulation of "customer premises  equipment" ("CPE"). GTE,1 in addition to providing telecommunications services,  leases telephones and related equipment, collectively referred to as CPE, to  some of its telecommunications services customers. Before 1988, the leasing  activity of GTE and other telecommunications providers, including the amount of  the lease rates, was subject to federal and state regulation. In the early  1980s, the Federal Communications Commission ("FCC") decided to deregulate the  CPE activity of these providers, thereby allowing them to compete freely with  other non-telecommunications providers in the market for CPE while the  regulation of their telecommunications services continued.


4
As part of the deregulation plan, the FCC found it necessary to preempt state  regulation of CPE activity, but it allowed states to develop their own  deregulation plans provided that those plans were implemented by December 31,  1987. In the Matter of Procedures for Implementing the Detariffing of Customer  Premises Equipment and Enhanced Services, 99 F.C.C.2d 354 (1984). Working with  the telecommunications providers in Alabama, the APSC followed the directive of  the FCC and achieved the deregulation of the providers' CPE activity before  1988.


5
In January of 1997, Chester Smith and three other Alabama residents filed this  putative class action lawsuit against GTE. According to the plaintiffs, after  its CPE activity had been deregulated, GTE offered to sell at "artificially high  prices" phones that were then being leased by its customers. GTE allegedly  treated a customer's lack of response to the offer as "an agreement to continue  leasing," which the plaintiffs refer to as "an unlawful negative option." The  plaintiffs further allege that during the "Deregulation Period"-which they  define as January 2, 1988 until the present-GTE has carried out a "fraudulent  scheme," which includes charging its customers exorbitant fees for leased  telephones, concealing the existence and amount of those charges, failing to  inform customers they would be better off purchasing phones from third parties,  and in some instances, charging customers for phones that no longer worked or  had been returned to GTE.2


6
In their amended complaint, the plaintiffs assert state law claims for fraud,  unjust enrichment, breach of contract, and breach of warranty. In addition, the  plaintiffs seek equitable relief in Count VI of their complaint, including an  injunction preventing GTE from misrepresenting its lease charges on monthly  bills and a declaration that the lease agreements for telephones are "null and  void from their inception."


7
The plaintiffs contend that diversity jurisdiction exists over their state law  claims, and they seek to certify the following two classes: (1) the "Damages  Class," which consists of "all persons who presently reside in Alabama who have  leased telephone equipment for residential use from [GTE] at any point in time  between January 2, 1988 and the date of this suit," and (2) the "Injunctive  Class," the composition of which is identical to the "Damages Class" except that  it also includes residents of Kentucky, North Carolina, and Virginia. Although  the complaint does not allege the number of members in each of the proposed  classes, it does allege that "[i]n mid-1993 [GTE] leased telephone equipment to  36,065 residents of the state of Alabama." Consequently, the "Damages Class"  alone consists of more than 36,000 members.


8
On August 14, 1997, GTE moved for judgment on the pleadings. In its motion, GTE  argued that the APSC, which supervises and regulates public utilities in  Alabama, had either exclusive or primary jurisdiction over the plaintiffs'  claims. GTE requested that the district court dismiss the plaintiffs' suit and  effectively require them to present their claims to the APSC. The motion was  referred to the magistrate court who ultimately recommended that the district  court, under the primary jurisdiction doctrine, stay the proceedings in the  lawsuit until the plaintiffs' claims could be heard and decided by the APSC.3


9
Agreeing that the APSC should exercise primary jurisdiction over the plaintiffs'  claims, the district court adopted the recommendation of the magistrate court  except that it did not order a stay. Instead, the court dismissed the case  without prejudice to allow the plaintiffs to "assert their claims before the  APSC, with leave to any Party to move the court to reinstate the action on the  active docket of the court, if and when appropriate and necessary." The  plaintiffs appealed.


10
On appeal, we raised the question of whether this case involved a sufficient  amount in controversy to establish federal diversity jurisdiction under 28  U.S.C.  1332. The parties submitted supplemental briefing on that issue and  addressed it at oral argument. Both the plaintiffs and GTE contend that there is  a sufficient amount in controversy. However, we conclude that there is not, and  that federal question jurisdiction also is not present, with the result that the  district court lacked subject matter jurisdiction over the case.

II. DISCUSSION

11
"Federal courts have limited subject matter jurisdiction, or in other words,  they have the power to decide only certain types of cases." Morrison v. Allstate  Indem. Co., 228 F.3d 1255, 1260-61 (11th Cir.2000) (citing University of South  Alabama v. American Tobacco Co., 168 F.3d 405, 409-10 (11th Cir.1999)). Lower  federal courts can exercise this power only over cases for which there has been  a congressional grant of jurisdiction, see id., "[a]nd because the Constitution  unambiguously confers this jurisdictional power to the sound discretion of  Congress, federal courts should proceed with caution in construing  constitutional and statutory provisions dealing with [their] jurisdiction."  University of South Alabama, 168 F.3d at 409 (citations and internal marks  omitted).


12
In this case, neither party has challenged federal court jurisdiction. However,  because a federal court is powerless to act beyond its statutory grant of  subject matter jurisdiction, a court must zealously insure that jurisdiction  exists over a case, and should itself raise the question of subject matter  jurisdiction at any point in the litigation where a doubt about jurisdiction  arises. See Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th  Cir.1985) ("A federal court not only has the power but also the obligation at  any time to inquire into jurisdiction whenever the possibility that jurisdiction  does not exist arises."); see also Morrison, 228 F.3d at 1261-62 (raising sua  sponte on appeal the issue of whether the case involved a sufficient amount in  controversy for diversity jurisdiction); Laughlin v. Kmart Corp., 50 F.3d 871,  873-74 (10th Cir.1995) (same).


13
In their complaint, the plaintiffs allege that diversity jurisdiction exists  over this case, and neither the defendant nor the district court questioned that  allegation.4 Moreover, even after we raised the potential jurisdictional problem  on appeal, both parties maintained in their supplemental briefs that federal  jurisdiction exists over the case. But subject matter jurisdiction exists only  where granted by statute, and thus, a federal court is not bound by the  jurisdictional contentions of the parties. See Morrison, 228 F.3d at 1261;  Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1000-01 (11th Cir.1982)  ("The jurisdiction of a court over the subject matter of a claim involves the  court's competency to consider a given type of case and cannot be waived or  otherwise conferred upon the court by the parties.").


14
While both parties argue in their supplemental briefs that this case involves a  sufficient amount in controversy to sustain diversity jurisdiction, the  plaintiffs also raise the possibility that the FCC's preemption of state  regulation of CPE establishes federal question jurisdiction over their claims,  pursuant to 28 U.S.C.  1331. Because the plaintiffs originally premised  jurisdiction on the diversity of citizenship, pursuant to 28 U.S.C.  1332, and  because the parties primarily focus on that basis for jurisdiction, we will  address the issue of diversity jurisdiction first.

A. DIVERSITY JURISDICTION

15
The foundation for federal court diversity jurisdiction-the power to decide  cases between citizens of different states-is Article III of the United States  Constitution. See U.S. Const. art. III,  2. However, when Congress created  lower federal courts, it limited their diversity jurisdiction to cases in which  there was a minimum monetary amount in controversy between the parties. See  Snyder v. Harris, 394 U.S. 332, 334, 89 S.Ct. 1053, 1056, 22 L.Ed.2d 319 (1969).  Today, the threshold amount in controversy for diversity jurisdiction, excluding  interests and costs, is $75,000. See 28 U.S.C.  1332.


16
Regarding the amount in controversy requirement, the plaintiffs allege in their  complaint the following: "Although the actual damages claimed by the named  Plaintiffs are less than $75,000.00, Plaintiffs also claim punitive damages  against [GTE]. Therefore, the matter in controversy exceeds, exclusive of  interest and costs, the sum of $75,000.00."5 In making this allegation, the  plaintiffs appear to have relied on this Court's holding in Tapscott v. MS  Dealer Serv. Corp., 77 F.3d 1353 (11th Cir.1996), that a class claim for  punitive damages under Alabama law could be viewed in the "aggregate" for amount  in controversy purposes, which meant that the amount of punitive damages claimed  could be attributed in toto to each member of the class in order to establish  diversity jurisdiction over the claims of the entire class. See id. at 1358-59.6  However, after the district court in this case dismissed the plaintiffs' suit  and they appealed, this Court decided Cohen v. Office Depot, Inc., 204 F.3d 1069  (11th Cir.2000) ("Cohen II "). In Cohen II, we held that a prior panel decision  by the Former Fifth Circuit, Lindsey v. Alabama Tel. Co., 576 F.2d 593 (5th  Cir.1978),7 precluded aggregating punitive damages to establish diversity  jurisdiction over a class action, and that decision is to be followed  notwithstanding a contrary holding by the subsequent panel in Tapscott. See  Cohen II, 204 F.3d at 1073-77.8


17
In light of Cohen II and Lindsey, which require that any class claim for  punitive damages under Alabama law be divided pro rata among all of the class  members for amount in controversy purposes, we put to the parties the question  of whether the present case involves a sufficient amount in controversy for  purposes of diversity jurisdiction. They responded that, despite the decisions  in Cohen II and Lindsey, punitive damages may still be viewed in the aggregate  to satisfy the requisite amount in controversy. In addition, the plaintiffs  contend that their claim for attorney's fees and the value of the requested  injunctive relief may be viewed in the aggregate, thereby providing additional  bases for establishing a sufficient amount in controversy. We address their  contentions in that order.

1. Punitive Damages

18
In arguing that Tapscott continues to be controlling authority on the issue of  aggregating a class claim for punitive damages, the parties primarily rehash the  same arguments considered and rejected by this Court in Cohen II. They maintain  that no conflict exists between Lindsey and Tapscott because the Lindsey Court  did not address the same issue as the Tapscott Court-whether class members have  a "common and undivided interest" in a claim for punitive damages under Alabama  law, thereby permitting a class claim for punitive damages to be viewed in the  aggregate for amount in controversy purposes. See Snyder, 394 U.S. at 335, 89  S.Ct. at 1056; see also Zahn v. International Paper Co., 414 U.S. 291, 294, 94  S.Ct. 505, 508, 38 L.Ed.2d 511 (1974) (explaining that "when several plaintiffs  unite to enforce a single title or right, in which they have a common and  undivided interest," their claims may be viewed in the aggregate to satisfy the  amount in controversy requirement) (citations omitted).


19
According to the parties, the Lindsey Court simply assumed that punitive damages  could not be viewed in the aggregate under the Supreme Court's decision in  Snyder, and failed to consider the "common and undivided interest" exception to  the general rule prohibiting aggregation acknowledged by the Supreme Court in  Snyder, as well as in its later decision in Zahn. Because the Tapscott Court  subsequently concluded that Alabama plaintiffs do have a common and undivided  interest in a class claim for punitive damages, the plaintiffs contend that  holding from Tapscott is the controlling law on the issue of whether such  damages can be viewed in the aggregate. We rejected that very contention in  Cohen II, 204 F.3d at 1075, and we are bound by Cohen II to reject it again  here.


20
Recently, in H&D Tire and Automotive-Hardware, Inc. v. Pitney Bowes, Inc., 227  F.3d 326, 329-30 (5th Cir.2000), the Fifth Circuit addressed a similar conflict  between Lindsey and the subsequent panel decision in Allen v. R&H Oil & Gas Co.,  63 F.3d 1326, 1329 (5th Cir.1995). Concluding that the result in Lindsey  implicitly requires that a class claim for punitive damages be distributed pro  rata among the class members for amount in controversy purposes, which is the  same conclusion we reached in Cohen II, the Fifth Circuit in Pitney Bowes  adhered to the prior panel precedent rule and held that a class claim for  punitive damages could not be viewed in the aggregate to satisfy the requisite  amount in controversy. See id. In other words, the Fifth Circuit in Pitney Bowes  reached the same conclusion about Lindsey that we did: Lindsey establishes  binding circuit law against aggregation of punitive damages for amount in  controversy purposes.


21
Like the plaintiff in Cohen II, the parties in this case are arguing simply that  the decision in Lindsey was wrong because, according to them, class members have  a "common and undivided interest" in a class claim for punitive damages. See  Cohen II, 204 F.3d at 1076. But "[e]ven if we thought Lindsey wrong, the prior  panel precedent rule is not dependent upon a subsequent panel's appraisal of the  initial decision's correctness." Id.; see also United States v. Steele, 147 F.3d  1316, 1317-18 (11th Cir.1998) (en banc) ("Under our prior precedent rule, a  panel cannot overrule a prior one's holding even though convinced it is wrong.")  (citations omitted). Simply put, Lindsey precludes viewing a punitive damages  claim in the aggregate for amount in controversy purposes, and because that  panel was the first in this Circuit to address the issue, Lindsey is the law of  this Circuit. See Cohen II, 204 F.3d at 1076-77; see also Pitney Bowes, 227 F.3d  at 330 ("Because Lindsey is the earliest, and thus controlling, decision in this  circuit, the punitive damages claims of the putative class cannot be aggregated  and attributed to each plaintiff to meet the jurisdictional requirement.").9


22
Going beyond their argument that no conflict exists between Lindsey and  Tapscott, the parties contend that even if there is such a conflict, an  exception to the prior panel precedent rule exists where the first panel to  address an issue failed to follow and apply controlling Supreme Court precedent.  In support of this contention, GTE points to Tucker v. Phyfer, 819 F.2d 1030  (11th Cir.1987), in which the panel expressly reached a holding contrary to that  of a previous panel. See id. at 1035 n. 7. In doing so, the Tucker Court noted  that the prior panel had not referred to two Supreme Court cases that it thought  compelled a different result. See id. Declining to follow the prior panel's  holding, the Tucker Court opined that if the two Supreme Court decisions had  "been called to the attention of the [prior] panel, the panel would have come to  the conclusion we reach today." Id.


23
The parties contend that the "exception" to the prior panel precedent rule  recognized in Tucker applies here and prevents Lindsey from binding subsequent  panels on the issue of aggregating punitive damages. Because the Lindsey Court  did not discuss the general aggregation standard noted in Snyder, which allows  aggregation of the claims of multiple plaintiffs to satisfy the amount in  controversy requirement when the plaintiffs assert a "single title or right in  which they have a common and undivided interest," Snyder, 394 U.S. at 335, 89  S.Ct. at 1056, the parties argue that the Lindsey Court failed to follow the  Supreme Court's decision in Snyder, and thus, that this Court's subsequent  decision in Tapscott controls. That position is wrong from the beginning. In  explaining why, we will start with the supposed exception to the prior panel  precedent rule.


24
If such an "exception" truly existed, it could end up nullifying the  well-established prior panel precedent rule that is an essential part of the  governing law of this Circuit. See Phillip M. Kannan, The Precedential Force of  Panel Law, 76 Marq. L.Rev. 755, 763 (1993) (noting a similar exception to the  prior panel precedent rule for "serious or egregious errors" by the prior panel  and explaining that such an exception "is a prescription for rule-swallowing if  ever there was one"). To the extent Tucker supports such an exception, it is  itself inconsistent with prior precedent. In United States v. Bascaro, 742 F.2d  1335, 1343 (11th Cir.1984), which preceded Tucker, we emphatically held that  "the mere act of proffering additional reasons not expressly considered  previously ... will not open the door to reconsideration of the question by a  second panel." Bascaro involved an issue of statutory interpretation, but there  is no principled basis for distinguishing between that and the interpretation of  governing decisions.


25
Moreover, if there ever was an exception to the prior panel precedent rule such  as that expressed in Tucker, it did not survive the pronouncement of the en banc  Court in United States v. Steele, 147 F.3d 1316 (11th Cir.1998) (en banc), that:  "Under our prior precedent rule, a panel cannot overrule a prior one's holding  even though convinced it is wrong." Id. at 1317-18.


26
The idea of an exception to the prior panel precedent rule where a subsequent  panel is convinced the prior one reached the wrong result-for whatever reason-is  also inconsistent with a number of decisions in which panels of this Court have  obediently followed prior panel precedents they were convinced were wrong. See,  e.g., In re Dickerson, 222 F.3d 924, 926 (11th Cir.2000)(following the holding  of an earlier panel decision even though "were we to decide this issue on a  clean slate, we would not so hold."); United States v. Steele, 117 F.3d 1231,  1234-35 (11th Cir.1997) (reluctantly following a prior panel decision even  though convinced it conflicted with the plain language of the statute in  question);10 Turecamo of Savannah, Inc. v. United States, 36 F.3d 1083, 1087  (11th Cir.1994) (following precedent thought to be wrong even though the prior  panel apparently overlooked important legislative history that would have led to  a different result); see also Wascura v. Carver, 169 F.3d 683, 687 (11th  Cir.1999)(responding to the argument that the reasoning of a prior panel  decision "is unclear and inadequate to support its holding" by stating that  "[w]e have no occasion to pass on that criticism, because we are bound by the  [prior panel] decision regardless of whether we agree with it.").


27
Permitting an "overlooked reason" exception would undermine the values of  stability and predictability in the law that the prior panel precedent rule  promotes. See Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir.1981)  (en banc); see also Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th  Cir.1983)("Judicial precedence serves as the foundation of our federal judicial  system. Adherence to it results in stability and predictability."). For all of  these reasons, we categorically reject any exception to the prior panel  precedent rule based upon a perceived defect in the prior panel's reasoning or  analysis as it relates to the law in existence at that time.11


28
Even if the Tucker exception were engrafted onto the controlling law of this  circuit-instead of being rejected by it-that would do these parties no good. In  both Snyder and Zahn, the Supreme Court rejected attempts to aggregate claims of  class members, and there is no intimation in either of those decisions that  members of a class have a common and undivided interest in a class claim for  punitive damages that would permit aggregating that claim. Thus, unlike the  situation in Tucker, there was no "clearly controlling Supreme Court precedent"  on the issue of aggregating punitive damages when Lindsey was decided. See  Tucker, 819 F.2d at 1036 n. 7.


29
Moreover, in attempting to justify the exception in Tucker, the panel in that  case noted that the prior panel whose decision it questioned had failed to  mention either of the two controlling Supreme Court decisions. See id. That was  critical to the Tucker panel, which said: "We hasten to add that had the [prior]  panel expressly considered [the two controlling Supreme Court decisions], we  would be bound by its interpretation and application of those decisions." Id. By  contrast, the Lindsey Court cited Snyder for the proposition that the claims of  class members may not be aggregated to satisfy the amount in controversy  requirement, and it also cited the Supreme Court's subsequent decision in Zahn.  See Lindsey, 576 F.2d at 594 (citations omitted). These citations indicate that  the Lindsey Court was well aware of the "common and undivided interest" standard  for aggregation acknowledged in Snyder and Zahn but that it construed Snyder to  preclude aggregation of a class claim for punitive damages. So, even if the  Tucker exception were viable, it would have no application here.


30
As recently noted by the Fifth Circuit, "Lindsey 's reasoning did not rely on a  characterization of punitive damages under Alabama law, but was instead based on  the principle that 'the claims of several plaintiffs, suing as members of a  class, cannot be aggregated for the purpose of satisfying th[e] jurisdictional  predicate.' " Pitney Bowes, 227 F.3d at 329 (quoting Lindsey, 576 F.2d at 594)  (citing Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969));  see also Ard v. Transcontinental Gas Pipe Line Corp., 138 F.3d 596, 601 (5th  Cir.1998) ("Lindsey therefore applies Snyder 's reasoning that compensatory  damage claims cannot be aggregated for jurisdictional purposes to the context of  punitive damage claims."). The fact that the Lindsey Court did not explicitly  say "there is no common and undivided interest in a class claim for punitive  damages" does not undermine the clear reasoning and result of that decision nor  does it vitiate the resulting rule.


31
In summary, the parties' alternative argument boils down to the position that  Lindsey incorrectly interpreted and applied Snyder because, as the parties  contend, class members have a common and undivided interest in a claim for  punitive damages. The prior panel precedent rule clearly forecloses their  position. See Cohen II, 204 F.3d at 1076; Steele, 147 F.3d at 1317-18.  Therefore, the class claim for punitive damages under Alabama law may not be  viewed in the aggregate for amount in controversy purposes, but instead must be  divided pro rata among each class member.


32
As we have mentioned, supra note 5, the individual compensatory damages of each  class member appear to be, at most, approximately $1,400. That means in order to  satisfy the $75,000 amount in controversy requirement, each class member would  have to recover over $73,000 in punitive damages. For that to be possible, the  class, which appears to consist of at least 36,000 members, would have to  recover over $2.628 billion in punitive damages. That recovery is not possible  as a matter of law, see generally BMW of North America, Inc. v. Gore, 517 U.S.  559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), and so, diversity jurisdiction  cannot be founded upon the claim for punitive damages.12

2. Attorney's Fees

33
In the injunctive relief count of their complaint, the plaintiffs also ask the  court to award them attorney's fees. Alabama follows the "American Rule," which  generally requires each party to pay its own attorney's fees. See Ex Parte Horn,  718 So.2d 694, 702 (Ala.1998). And "when there is no direct legal authority for  an attorney's fee, a request for a fee [may not] be included in the computation  o[f] the jurisdictional amount." Galt G/S v. JSS Scandinavia, 142 F.3d 1150,  1155 (9th Cir.1998) (quoting Charles Alan Wright & Arthur R. Miller, Federal  Practice and Procedure  3712, at 178 (3d ed.1985)).


34
There is an exception to the "American Rule," and thus, "direct legal authority"  supporting inclusion of a claim for attorney's fees in determining the amount in  controversy, when an award of fees is authorized either by statute or contract.  See Graham v. Henegar, 640 F.2d 732, 736 n. 9 (5th Cir.1981) (citations  omitted). In this case, the plaintiffs do not claim a statutory or contractual  right to attorney's fees. But a clearly established common law basis for  awarding attorney's fees may also justify including a reasonable estimate of  requested attorney's fees in determining the amount in controversy. See Ross v.  Inter-Ocean Ins. Co., 693 F.2d 659, 661 (7th Cir.1982) (noting that a reasonable  estimate of attorney's fees may be included in the amount in controversy "where  a litigant has a right, based on contract, statute, or other legal authority, to  an award of attorney's fees if he prevails in the litigation"); see also 14B  Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure  3702,  at 92-93 & n. 83 (3d. ed.1985).


35
As noted by this Court in Davis v. Carl Cannon Chevrolet-Olds, Inc., 182 F.3d  792 (11th Cir.1999), Alabama recognizes two closely related equitable doctrines  providing for an award of attorney's fees: the "common fund" doctrine and the  "common benefit" doctrine.13 See id. at 795. Under the common fund doctrine,  when litigation generates a fund benefitting a class of individuals, as in a  typical class action, the court may award fees to the plaintiff's attorney,  usually by deducting a percentage from the fund in order to compensate the  plaintiff's attorney. See Union Fidelity Life Ins. Co. v. McCurdy, No. 1981387  (Ala. Sept.22, 2000); see also Edelman & Combs v. Law, 663 So.2d 957, 958  (Ala.1995) ("[T]his Court, like the federal courts, has long recognized that a  lawyer who recovers an award for the benefit of a class of clients is entitled  to a reasonable fee from the amount recovered.") (citations omitted). The common  benefit doctrine, under Alabama law, allows a court to require the defendant to  pay attorney's fees, regardless of whether a fund has been generated by the  litigation, when the litigation has "conferred some kind of benefit on the  public." Davis, 182 F.3d at 795 (citing Brown v. Alabama, 565 So.2d 585, 592  (Ala.1990)); see also Horn, 718 So.2d at 702 (indicating that fees may be  awarded under the common benefit doctrine when "the efforts of the plaintiff's  attorneys render a public service or result in a benefit to the general public  in addition to serving the interests of the plaintiff").


36
In this case, the plaintiffs argue that they will be entitled to an award of attorney's fees under either the common fund doctrine or the common benefit  doctrine. In Davis, a diversity suit involving Alabama state law, this Court  held that a requested award of attorney's fees deducted from the recovery of a  common fund could not be viewed in the aggregate to satisfy the amount in  controversy requirement for a class action. See Davis, 182 F.3d at 796-98. Thus,  if the common fund doctrine applies, the estimated amount of attorney's fees in  this case, like the claim for punitive damages, must be divided pro rata among  each class member. Because the amount attributed to each of the more than 36,000  class members would be well below $75,000, the attorney's fee claim under the  common fund doctrine is not enough to establish diversity jurisdiction in this  case.


37
We now turn to the issue of whether the plaintiffs would be entitled to  attorney's fees under the common benefit doctrine of Alabama and, if so, whether  the estimated amount of those fees should be viewed in the aggregate for amount  in controversy purposes. In their complaint, the plaintiffs allude to the common  benefit doctrine as the basis for their attorney's fees claim by requesting "a  reasonable attorney's fee for the Plaintiffs for securing relief which will  benefit the general public and a large group of persons." According to the  plaintiffs, their lawsuit against GTE will produce the type of public benefit  for which Alabama courts have awarded attorney's fees under the common benefit  doctrine because, they say, their lawsuit will: (1) enjoin GTE's alleged  practice of targeting minorities, the elderly, the poor, and similar demographic  groups for its deceptive leasing scheme; (2) enjoin unlawful practices affecting  all of the residents of communities in which GTE exercises a monopoly on  telephone service; and (3) determine if, and to what extent, the APSC has  retained the authority to supervise or regulate the CPE activity of  telecommunications providers. It follows, according to the plaintiffs, that  their suit will result in substantial benefits to a large group of persons,  thereby justifying an award of common benefit attorney's fees.


38
In order to determine whether plaintiffs are correct, it is necessary to trace  the origins of the common benefit doctrine and its evolution under Alabama law.  The Supreme Court of Alabama first recognized the common benefit doctrine in  Miles v. Bank of Heflin, 349 So.2d 1072 (1977). There, a group of shareholders  brought suit against their corporation seeking an order allowing them to audit  the books and records of the corporation. See id. at 1073. After holding that  the shareholders were so entitled, the Court turned to the question of whether  or not to award attorney's fees to the plaintiffs on the grounds that they  bestowed a non-pecuniary benefit on the corporation and its other shareholders  by bringing suit to enforce shareholder rights. See id. at 1076. The Court first  noted that there "is no inherent right to have an award of attorney's fees in  the absence of contract, statute, or a recognized ground of equity." Id. The  Court recognized one such equitable ground, holding that the plaintiffs, by  bringing suit to enforce the rights of shareholders, could be entitled to  reimbursement for expenses incurred in the course of the litigation, but only if  they bestowed a substantial benefit on the corporation. See id. See also  Coupounas v. Morad, 380 So.2d 800, 804 (Ala.1980) (stating, "[i]t is an  established rule of law that a minority stockholder is entitled to be awarded a  reasonable attorney's fee by the corporation in which he has an interest when a  benefit has been conferred upon that corporation by the stockholder's derivative  action."). In Heflin, the plaintiffs were not reimbursed for their litigation  expenses because the Court decided that no such benefit had been conferred by  the plaintiffs' suit.


39
In reaching its conclusion in Heflin that the bestowment of a substantial  benefit upon the corporation may entitle the plaintiffs to attorney's fees, the  Alabama Supreme Court relied primarily on Mills v. Electric Auto-Lite Co., 396  U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Like Heflin, the Mills case was  also a shareholder derivative action. In regards to the fair apportionment of  attorney's fees, the Court in Mills stated, "[t]he dissemination of misleading  proxy solicitations was a deceit practiced on the stockholders as a group, and  the expenses of petitioners' lawsuit have been incurred for the benefit of the  corporation and the other shareholders." Id. at 392, 90 S.Ct. at 625 (internal  citations and quotations omitted). The Court concluded that the fact the benefit  conferred was non-pecuniary was of no moment, stating, "courts increasingly have  recognized that the expenses incurred by one shareholder in the vindication of a  corporate right of action can be spread among all shareholders through an award  against the corporation, regardless of whether an actual money recovery has been  obtained." Id. at 394, 90 S.Ct. at 626.


40
The decisions and opinions in Heflin and Mills teach that the purpose of the  common benefit doctrine is to spread the cost of the litigation, including  attorney's fees, among those who have benefitted from the litigation. It is not  so much fee-shifting as fee-spreading. This fee-spreading is accomplished, in  the case of a corporate defendant in a derivative suit, by assessing costs  against the defendant corporation directly, because those costs are, in effect,  incurred by the shareholder/beneficiaries. See Mills, 396 U.S. at 394-95, 90  S.Ct. at 627 (explaining that the common benefit doctrine is an extension of the  common fund doctrine, but that in cases involving the former "there was a  'common fund' only in the sense that the court's jurisdiction over the  corporation as a nominal defendant made it possible to assess fees against all  of the shareholders through an award against the corporation" ). Fee-spreading  in such circumstances comports with the underlying purpose of both the common  fund and common benefit doctrines, which "is not to saddle the unsuccessful  party with the expenses but to impose them on the class that has benefitted from  them and that would have had to pay them had it brought the suit." Id. at  396-397, 90 S.Ct. at 628. See also Hall v. Cole, 412 U.S. 1 n. 7, 7 n. 7, 93  S.Ct. 1943, 1946 n. 7, 36 L.Ed.2d 702 (1973) (noting that rationale underlying  the common benefit doctrine represents an extension of the common fund  doctrine).


41
Thus, under the common benefit doctrine, the focus is on the nature of the  relationship between the defendant and the class members, or, in the absence of  a certified class, those individuals who can be said to benefit from the  litigation. If the relationship is such that the costs can be spread indirectly  to the beneficiaries by imposing them on the defendant, then the relationship  permits application of the doctrine. As explained in Campbell v. General Motors  Corp., 19 F.Supp.2d 1260 (N.D.Ala.1998), "[g]enerally, federal courts have  carefully hemmed in the common benefit doctrine, applying it only where the  fees, though paid for by the defendant, are somehow distributed over those  benefitted by the plaintiffs' actions." Id. at 1270 n. 9 (emphasis and citations  omitted). As examples, the Campbell court cited Hall, 412 U.S. at 4-9, 93 S.Ct.  at 1945-48, in which the United States Supreme Court permitted an award of  attorney's fees against a union defendant where the suit had resulted in  non-monetary benefits to the union members, and Barton v. Drummond Co., 636 F.2d  978, 982-85 (5th Cir. Unit B 1981), in which this Court permitted an award of  attorney's fees against a corporation when the suit resulted in non-monetary  benefits for its stockholders. See Campbell, 19 F.Supp.2d at 1270 n. 9; see also  Mills, 396 U.S. at 396-97, 90 S.Ct. at 628.


42
Since its decision in Heflin, the Alabama Supreme Court has awarded attorney's  fees under the common benefit doctrine in the context of only one particular  sort of relationship-that of citizens and their governmental entity. See  generally Brown v. State, 565 So.2d 585, 591-92 (Ala.1990); Ex Parte Horn, 718  So.2d 694, 706 (Ala.1998). In such lawsuits, the governmental entity is the  defendant and the citizens of that entity are the incidental beneficiaries of  the suit. Although federal courts have yet to construe the common benefit  doctrine quite so broadly,14 application of the doctrine to the  citizen/government relationship is entirely consistent with its theoretical  underpinnings. The relationship of citizens to a governmental entity is such  that imposing litigation costs on the defendant, payable from the government's  coffers, is, in effect, obtaining those fees from the citizen beneficiaries of  the litigation.15


43
Although the Alabama Supreme Court has never explicitly based its common benefit  analysis on the nature of the relationship between a defendant and the  beneficiaries of the lawsuit, that rationale has clearly animated the court's  decisions. For example, in Ex Parte Horn, 718 So.2d 694 (Ala.1998), the question  was whether the plaintiffs had conferred a sufficiently "public" benefit that it  was equitable to impose attorney's fees on the city of Birmingham. The  plaintiffs had successfully brought an action preventing the construction of a  sanitary waste transfer station adjacent to their neighborhood in the western  part of the city. See Id. at 704. The city argued that "the facility would have  had no impact on residents of eastern Birmingham and, thus, ... a benefit was  not conferred on all the residents of Birmingham in the same manner as it was  conferred on [the plaintiffs]." Id. at 704-05. The underlying premise of the  city's argument was that the costs of the litigation would be shouldered by all  of the Birmingham residents if the city was forced to pay, and that it would be  inequitable to impose those costs on the entire city of Birmingham because all  of its residents did not benefit equally from the litigation. The Alabama  Supreme Court ultimately rejected the city's argument, reasoning that "the  plaintiffs' efforts clearly resulted in an increased level of due process  protection to all residents of Birmingham ... and all of its residents have  received a common benefit...." Id. at 706. What matters for purposes of our  analysis, though, is that in Horn the Alabama Supreme Court accepted the  underlying legal premise of the city's argument-application of the common  benefit doctrine turns on whether requiring the defendant to pay the plaintiffs'  litigation costs would spread those costs equitably among the beneficiaries of  the lawsuit.


44
Returning to the facts of our case, the relationship between GTE and the  proposed beneficiaries of this lawsuit does not warrant application of the  common benefit doctrine. Imposing on GTE litigation costs, including attorney's  fees, would not operate to spread those costs among the purported beneficiaries  of the litigation, the class members. Those beneficiaries do not have any  apparent economic or other connection with GTE-like shareholders to a  corporation, union members to a union or citizens to a governmental entity-that  would result in those costs being shared by the class members. Even assuming  that this lawsuit will confer a benefit on the general public, requiring GTE to  pay attorney's fees under the common benefit doctrine would not serve the  doctrine's purpose of spreading the costs of this litigation among those  beneficiaries. Instead, it would merely saddle GTE as the unsuccessful defendant  with those costs, in clear contravention of the American Rule.


45
Therefore, we conclude that any award of attorney's fees in this case would be  paid out of the common fund created by the litigation and not by GTE on the  basis of a common benefit theory. An award of common fund attorney's fees may  not be viewed in the aggregate, see Davis, 182 F.3d at 796-98, and from that it  follows the requested attorney's fees in this case do not establish the  requisite amount in controversy for diversity jurisdiction.16

3. Injunctive Relief

46
For amount in controversy purposes, "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." Cohen II, 204 F.3d at 1077 (discussing Ericsson GE  Mobile Communications, Inc. v. Motorola Communications & Elecs., Inc., 120 F.3d  216, 218-20 (11th Cir.1997)). In this case, the plaintiffs seek to enjoin GTE  from concealing or misrepresenting its lease charges and to require GTE to  notify its customers that failure to pay the lease charges cannot result in  termination of telephone service. Essentially, the monetary value of the  injunction to the plaintiffs is the present value of the future lease charges  that the class members could avoid by being clearly informed of the allegedly  excessive cost of those charges and of the fact that continuation of their  telephone service is not contingent on paying those charges.


47
As to any individual class member, that monetary benefit would be well below  $75,000. For example, a class member who paid the highest current monthly lease  rate for a telephone (about $10) for even as long as sixty years would end up  paying only $7,200, and the present value of that amount would be far less. Of  course, if the value of the injunction could be aggregated, given the size of  the class the injunctive relief sought in this case would satisfy the amount in  controversy requirement. But as explained recently in the Morrison decision,  aggregation depends on the rights asserted by the plaintiffs and not the  particular type of relief sought. See Morrison, 228 F.3d at 1271.


48
Aggregation is permissible only when multiple plaintiffs seek to "enforce a  single title or right, in which they have a common and undivided interest,"  Zahn, 414 U.S. at 294, 94 S.Ct. at 508, and thus, "when an injunction protects  rights that are separate and distinct among the plaintiffs, the value of the  injunction to the individual plaintiffs may not be aggregated to sustain  diversity jurisdiction." Morrison, 228 F.3d at 1271 (citing Alfonso v.  Hillsborough County Aviation Auth., 308 F.2d 724 (5th Cir.1962)). In this case,  the requested injunction would protect the rights of the class members that  arise from their individual lease agreements with GTE. When plaintiffs assert  rights that arise from individual contracts with a defendant, those rights are  separate and distinct, and thus, their claims may not be aggregated. See, e.g.,  Oliver v. Alexander, 31 U.S. (6 Pet.) 143, 145-48, 8 L.Ed. 349 (1832) (joint  suit by seamen to collect wages under their individual employment contracts);  Morrison, 228 F.3d at 1271 (class action involving individual insurance  policies); Alvarez v. Pan American Life Ins. Co., 375 F.2d 992, 993 (5th  Cir.1967) (same).


49
The allegations that the lease agreements were induced and maintained by a  common scheme of fraud does not change the separate and distinct nature of the  rights asserted in this case. See Eagle Star Ins. Co. v. Maltes, 313 F.2d 778,  780 n. 4 (5th Cir.1963) ("Federal Rule of Civil Procedure, [R]ule 20 allows the  joinder of parties plaintiff when there is a common question of law or fact and  the claims of all plaintiffs arose out of the same transaction o[r] occurrence.  However, this joinder for convenience of the court affects in no way the  entirely separate question of aggregation of claims to satisfy the  jurisdictional amount."). The plaintiffs allege that, in those communities where  it had a monopoly, GTE took advantage of its monopoly status in order to  accomplish its fraudulent scheme, and that its customers were not in a position  to individually negotiate their lease agreements. If true, those facts may be  relevant to the egregiousness of GTE's alleged fraud, but it remains true that  the rights asserted arise from the individual lease agreement of each class  member. Part of the relief sought by the plaintiffs is for the court to declare  "the lease agreements null and void from their inception."


50
It is also worth mentioning that since GTE raised the specter of the primary  jurisdiction of the APSC, the plaintiffs have insisted that the CPE activity  challenged in this case is not part of GTE's public utility service but instead  is a free market, non-regulated business. If true, that is a further indication  that the rights which would be protected or vindicated by the requested  injunction are the separate and distinct rights of the class members in their  lease agreements with GTE, and as a result, the value of the injunctive relief  may not be aggregated to satisfy the amount in controversy requirement for  diversity jurisdiction.

B. FEDERAL QUESTION JURISDICTION

51
We turn now to plaintiffs' fallback argument, which is that the district court  had federal question jurisdiction over this case, pursuant to 28 U.S.C.  1331,  because this lawsuit seeks injunctive relief based on the FCC's preemption of  state regulation of the CPE activity of telecommunications providers. Recall  that the plaintiffs seek an injunction to prevent GTE from misrepresenting its  telephone lease charges as part of its regulated, telecommunications service and  thereby wrongfully implying that it may disconnect a customer's telephone  service for failure to pay the lease charges. The plaintiffs also seek a  declaration that the lease agreements "are null and void from their inception."


52
Under the federal question jurisdiction statute, 28 U.S.C.  1331, a district  court has subject matter jurisdiction over "all civil actions arising under the  Constitution, laws, or treaties of the United States." Whether a claim arises  under federal law for purposes of 28 U.S.C.  1331 is generally determined by  the well-pleaded complaint rule, "which provides that federal jurisdiction  exists only when a federal question is presented on the face of the plaintiff's  properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392,  107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). A well-pleaded complaint presents a  federal question where it "establishes either that federal law creates the cause  of action or that the plaintiff's right to relief necessarily depends on  resolution of a substantial question of federal law." Franchise Tax Bd. v.  Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28, 103 S.Ct.  2840, 2856, 77 L.Ed.2d 420 (1983).


53
The complaint in this case establishes neither basis for federal question  jurisdiction, because it contains only state law causes of action and does not  show that any "substantial question of federal law" is necessary for the  plaintiffs to obtain their requested relief. See id. The question of whether the  Alabama Public Service Commission retains some regulatory power over the CPE  activity of GTE, or whether such power was preempted, arose not from the  complaint but rather from GTE's invocation of the primary jurisdiction doctrine  in defense. As the Supreme Court stated in Franchise Tax Bd., federal question  jurisdiction exists only when "the plaintiff 's complaint establishes that the  case 'arises under' federal law." Id. at 10, 103 S.Ct. at 2847 (emphasis in  original) (" '[A] right or immunity created by the Constitution or laws of the  United States must be an element, and an essential one, of the plaintiff's cause  of action.' ") (citation omitted).


54
A federal question is presented when a suit "seeks injunctive relief from state  regulation[ ] on the ground that such regulation is pre-empted by a federal  statute which, by virtue of the Supremacy Clause of the Constitution, must  prevail...." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct.  2890, 2899 n. 14, 77 L.Ed.2d 490 (1983). But the complaint in this case seeks  injunctive relief against GTE, not against the regulatory activity of the Public  Service Commission. Again, the issue of the Commission's regulatory authority  arises only from GTE's defensive assertion of the purported primary or exclusive  jurisdiction of the APSC over the plaintiffs' claims.


55
The plaintiffs argue that their claim for injunctive relief is essentially a  federal claim because federal law has completely preempted states' regulation of  the CPE market and the claim for injunctive relief is based on that preemption.  "One corollary of the well-pleaded complaint rule ... is that Congress may so  completely pre-empt a particular area that any civil complaint raising this  select group of claims is necessarily federal in character." Metropolitan Life  Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55  (1987); Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. at 2854 ("[I]f a federal  cause of action completely preempts a state cause of action any complaint that  comes within the scope of the federal cause of action necessarily 'arise under'  federal law.").


56
The Supreme Court has recognized that complete preemption occurs when "the  pre-emptive force of a statute is so 'extraordinary' that it 'converts an  ordinary state common-law complaint into one stating a federal claim for  purposes of the well-pleaded complaint rule.' " Caterpillar, 482 U.S. at 393,  107 S.Ct. at 2430 (citing Metropolitan Life, 481 U.S. at 65, 107 S.Ct. at 1547).  Under these rare circumstances, "any claim purportedly based on that pre-empted  state law is considered, from its inception, a federal claim." Id.


57
We have noted that "the [Supreme] Court has revisited the complete preemption  doctrine only sparingly" and has found complete preemption only in the context  of two federal statutes-the Labor Management Relations Act (LMRA), 29 U.S.C.   141, et seq., and the Employee Retirement Income Security Act (ERISA), 29 U.S.C.   1001, et seq. BLAB T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc.,  182 F.3d 851, 855 (11th Cir.1999). Furthermore, "although the Supreme Court  recognizes the existence of the complete preemption doctrine, the Court does so  hesitatingly and displays no enthusiasm to extend the doctrine into areas of law  beyond the LMRA and ERISA." Id. at 856. Similarly, this Court has yet to find  complete preemption outside the context of the LMRA and ERISA. Id.


58
In BLAB, which is the only Eleventh Circuit case to address directly the  application of the complete preemption doctrine outside of the context of the  LMRA and ERISA, we discussed the various tests employed by other courts to  determine whether complete preemption exists. See id. at 856-57 (concluding that  the Cable Communications Policy Act did not completely preempt state law).  Although we refused to adopt any particular approach, we summarized the various  factors considered by other courts as follows:


59
These cases reveal a varying emphasis on such questions as whether the state  claim is displaced by federal law under an ordinary preemption analysis,  whether the federal statute provides a cause of action, what kind of  jurisdictional language exists in the federal statute, and what kind of  language is present in the legislative history to evince Congress's  intentions.


60
Id. at 857. Furthermore, we concluded that the focus of each of the tests was  "to determine whether Congress not only intended a given federal statute to  provide a federal defense to a state cause of action that could be asserted  either in a state or federal court, but also intended to grant a defendant the  ability to remove the adjudication of the cause of action to a federal court by  transforming the state cause of action into a federal [one]." Id. (citation and  quotation omitted).17 In other words, the "touchstone" of federal jurisdiction  under the complete preemption doctrine is "Congress's intent." Id.


61
In light of the factors that we considered in BLAB, we are persuaded that the  complete preemption doctrine does not provide a basis for federal jurisdiction  in this case. The plaintiffs have not shown, and our review has not found, any  indication that either Congress or the FCC intended completely to preempt state  law in deregulating the CPE activity of telecommunications providers. Therefore,  federal question jurisdiction is not present as to the plaintiffs' claim for  injunctive relief.


62
In arguing that we should find complete preemption, the plaintiffs point to FCC  orders which expressly preempt some state regulation of CPE activities. However,  a review of those orders reveals that complete preemption was not intended.  Although the FCC's orders concerning deregulation recognized that preemption of  many state regulations would occur, the FCC stated that "we preempt the states  here only to the extent that their ... regulation is at odds with the regulatory  scheme set forth." In re Amendment of Section 64.702 of the Commission's Rules  and Regulations, 84 F.C.C.2d 50, 103 (1980). Similarly, in a subsequent order  addressing the deregulation process, the FCC concluded that "[t]he framework we  adopt here provides maximum flexibility for states to [deregulate] embedded CPE"  and that "it is in the public interest that states be given a substantial role  in developing procedures for [deregulation]." Detariffing of Customer Premises  Equipment and Enhanced Services, 99 F.C.C.2d at 355, 363 (1984). See also  Computer and Communications Indus. Ass'n v. FCC, 693 F.2d 198, 205  (D.C.Cir.1982) (noting that "the Commission was careful to limit the area of  preemption"). Statements like those are not the language of complete preemption,  but are instead inconsistent with it. The FCC did not intend to completely  preempt all state laws concerning CPE regulation.


63
Likewise, a review of the Federal Communications Act, 47 U.S.C.  151, et seq.,  pursuant to which the FCC was acting in deregulating CPE activity, reveals that  Congress also did not intend to preempt completely state causes of action or  remedies concerning the subject matter of the Act. In the Communications Act,  Congress provided that:  Any person claiming to be damaged by any common carrier subject to the  provisions of [the Communications Act] may either make complaint to the  Commission as hereinafter provided for, or may bring suit for the recovery of  the damages for which such common carrier may be liable under the provisions  of [the Communications Act], in any district court of the United States of  competent jurisdiction....


64
47 U.S.C.  207. Despite this provision permitting federal jurisdiction over  well-pleaded actions under the Communications Act, Congress further provided  that "[n]othing in this chapter contained shall in any way abridge or alter the  remedies now existing at common law or by statute, but the provisions of this  chapter are in addition to such remedies." 47 U.S.C.  414. As we stated in  BLAB, the existence of this type of "savings" clause which "contemplate[s] the  application of state-law and the exercise of state-court jurisdiction to some  degree ... counsels against a conclusion that the purpose behind the ... Act was  to replicate the 'unique preemptive force' of the LMRA and ERISA." 182 F.3d at  857-58.


65
Furthermore, the plaintiffs have not pointed to any provision in the  Communications Act itself or in its legislative history which would indicate  "that Congress intended state law causes of action within the scope of [the  Communications Act] to be federalized." Sanderson, Thompson, Ratledge & Zimny v.  AWACS, Inc., 958 F.Supp. 947, 958 (D.Del.1997) (finding no complete preemption  in context of the Communications Act). Therefore, we conclude that the  plaintiffs' request for injunctive relief is not subject to the complete  preemption exception to the well-pleaded complaint rule. Consequently, the  district court had no subject matter jurisdiction over this action.


66
Although the complete preemption doctrine does not apply in this case, we  recognize that use of the term "preemption" in this context has caused "a  substantial amount of confusion between the complete preemption doctrine and the  broader and more familiar doctrine of ordinary preemption." BLAB, 182 F.3d at  854. For that reason, it is worth pointing out that:


67
complete preemption functions as a narrowly drawn means of assessing federal  removal jurisdiction, while ordinary preemption operates to dismiss state  claims on the merits and may be invoked in either federal or state court.


68
Id. at 854-55. In other words, our conclusion that the complete preemption  doctrine does not provide a basis for federal jurisdiction in this action does  not preclude the parties from litigating about the preemptive effect, if any, of  the FCC's orders or the Communications Act in any subsequent state court action.

III. CONCLUSION

69
Because the district court lacked subject matter jurisdiction over this case, we  VACATE its order dismissing the case on abstention grounds and REMAND with  directions that the case be dismissed for lack of jurisdiction.


70
VACATED AND REMANDED.



NOTES:


*
 Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of  Pennsylvania, sitting by designation.


1
 GTE Corporation is the holding company parent of GTE South, Inc., a local  exchange carrier which provides telecommunications services to customers in  Alabama, among other states.


2
 As an example of GTE's alleged deceptive nature of lease charges, the plaintiffs  state that the charge for a leased phone was listed as "desk phone" under the  heading of "local services" and then listed under the heading of "GTE Basic  Service" in the monthly bills sent to customers, thereby implying that the  charge was part of the regulated basic service and that non-payment for the  charge would result in disconnection of the customer's phone service. They  contend that not until October 1996 did GTE first use the word "rental" to refer  to the lease charges.


3
 "Primary jurisdiction is a judicially created doctrine whereby a court of  competent jurisdiction may dismiss or stay an action pending a resolution of  some portion of the actions by an administrative agency." Wagner & Brown v. ANR  Pipeline Co., 837 F.2d 199, 201 (5th Cir.1988). Even though the court is  authorized to adjudicate the claim before it, the primary jurisdiction doctrine  "comes into play whenever enforcement of the claim requires the resolution of  issues which, under a regulatory scheme, have been placed within the special  competence of an administrative body; in such a case the judicial process is  suspended pending referral of such issues to the administrative body for its  views." United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161,  165, 1 L.Ed.2d 126 (1956) (explaining that, like an exhaustion of remedies  requirement, the primary jurisdiction doctrine "is concerned with promoting  proper relationships between the courts and administrative agencies charged with  particular regulatory duties").


4
 When the plaintiffs filed their complaint, and when the district court dismissed  the suit on the basis of primary jurisdiction doctrine, some precedent in this  circuit appeared to indicate that a class claim for punitive damages could  establish the requisite amount in controversy for diversity jurisdiction over a  class action. See infra Part II.A. That may be the reason that no one questioned  the district court's jurisdiction.


5
 The compensatory, or actual, damages of the class members appear to be  relatively small. According to the plaintiffs, the allegedly fraudulent and  excessive lease rates charged by GTE ranged from $3 to $10 a month. Over a  twelve year period (1988 to the present), the class members would have paid  approximately between $440 and $1,400 in lease charges, well below the $75,000  required for diversity jurisdiction. Moreover, the compensatory damages claims,  as well as the unjust enrichment claim, of the class members arise from each  plaintiff's individual agreements with GTE, and thus, those claims may not be  aggregated for amount in controversy purposes. See Morrison, 228 F.3d at  1263-64.


6
 Generally, when plaintiffs join in one lawsuit, the value of their claims may  not be added together, or "aggregated," to satisfy the amount in controversy  requirement for diversity jurisdiction. See Zahn v. International Paper Co., 414  U.S. 291, 295, 94 S.Ct. 505, 508, 38 L.Ed.2d 511 (1974); Snyder, 394 U.S. at  335, 89 S.Ct. at 1056. However, "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." Zahn,  414 U.S. at 294, 94 S.Ct. at 508 (distinguishing between the "common and  undivided" interest, for which aggregation is permissible, and "separate and  distinct" interests, for which aggregation is not permissible) (emphasis added)  (quoting Troy Bank of Troy, Indiana v. G.A. Whitehead & Co., 222 U.S. 39, 40-  41, 32 S.Ct. 9, 56 L.Ed. 81 (1911)).


7
 Decisions of the Fifth Circuit issued prior to October 1, 1981 are binding  precedent on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1207  (11th Cir.1981) (en banc).


8
 Under the well-established prior panel precedent rule of this Circuit, the  holding of the first panel to address an issue is the law of this Circuit,  thereby binding all subsequent panels unless and until the first panel's holding  is overruled by the Court sitting en banc or by the Supreme Court. See Cargill  v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997).
In the initial panel decision in Cohen v. Office Depot, Inc., 184 F.3d 1292  (11th Cir.1999) ("Cohen I ") this Court reversed the district court's order of  dismissal for lack of subject matter jurisdiction. In that case, after the  district court had stricken the Florida plaintiffs' punitive damage claim  because it had not been properly pled in accordance with Fla. Stat.  768.72,  the court concluded that the plaintiff's class action suit did not satisfy the  amount in controversy requirement. See id. at 1294. On appeal, the Court held in  Cohen I that Fla. Stat.  768.72 did not apply to cases filed in federal court,  see id. at 1295-99, and relying on Tapscott, concluded that the punitive damages  claim could be aggregated to satisfy the amount in controversy requirement for  diversity jurisdiction. See id. at 1295.
The defendants in Cohen filed a petition for rehearing in which the Lindsey  decision was "belatedly" brought to the Court's attention. See Cohen II, 204  F.3d at 1072. Concluding that Lindsey was controlling on the punitive damages  issue under our prior panel precedent rule, we held in Cohen II that the  punitive damages claim could not be aggregated, and we affirmed the district  court's dismissal for lack of subject matter jurisdiction. See Cohen II, 204  F.3d at 1073- 77, 83.


9
 The plaintiffs point out that the Tapscott Court, in considering the nature of  punitive damages under Alabama law and concluding that the class members had a  common and undivided interest in those damages, relied on Alabama Supreme Court  cases that were decided after Lindsey. But there is no indication in Lindsey  that the Court based its decision on the particular nature of Alabama punitive  damages. See Pitney Bowes, 227 F.3d at 329 ("Lindsey 's reasoning did not rely  on a characterization of punitive damages under Alabama law...."). Thus, there  is no basis for concluding that the subsequent Alabama decisions relied on by  Tapscott, or any subsequent Alabama decision addressing punitive damages issues,  have undermined or "overruled" Lindsey.


10
 The erroneous result reached by the prior panel whose decision bound the Steele  panel was corrected en banc, United States v. Steele, 147 F.3d 1316 (11th  Cir.1998) (en banc), which is how erroneous panel decisions should be corrected.  See id. at 1318. Before changing circuit law, as it had the authority to do, the  en banc court in Steele recognized that the panel in that case had been bound to  follow the prior panel decision even though it was wrong. See id. at 1317 (the  panel reached the result it did "because it was bound to do so by the prior  panel decision," but "[b]ecause we are sitting en banc, we are not bound by the  [prior panel] decision.").


11
 Our use of the limiting phrase "as it relates to the law in existence at that  time" is deliberate. Subsequent panels are not bound by prior decisions where  there has been a change in the controlling law as a result of a subsequent en  banc or Supreme Court decision or statutory change. See United States v. Hanna,  153 F.3d 1286, 1288 (11th Cir.1998)("In this circuit, only the court of appeals  sitting en banc, an overriding United States Supreme Court decision, or a change  in the statutory law can overrule a previous panel decision.").


12
 The named plaintiffs state that if class certification is denied, they will  proceed in an individual lawsuit, and in such a suit, they may realistically  recover an amount of punitive damages, especially when coupled with a recovery  of attorney's fees and the value of the requested injunctive relief, that  satisfies the amount in controversy requirement. Perhaps, but this suit was  filed as a class action and until the class certification is denied, we must  treat it as a class action. See Morrison, 228 F.3d at 1263 n. 7 (citing 3B J.  Moore, Moore's Federal Practice,  23.50 (2d ed. 1985)) ("In the interim between  the commencement of the suit as a class action and the court's determination as  to whether it may be so maintained it should be treated as a class suit."). If  there is no diversity jurisdiction over a putative class action, it is a waste  of the resources for both the parties and the court to proceed through a class  certification determination on the basis that diversity jurisdiction would exist  if the suit had been filed as an individual action. See University of South  Alabama, 168 F.3d at 410 ("A necessary corollary to the concept that a federal  court is powerless to act without jurisdiction is the equally unremarkable  principle that a court should inquire into whether it has subject matter  jurisdiction at the earliest possible stage in the proceedings.").


13
 "In an ordinary diversity case where the state law does not run counter to a  valid federal statute or rule of court, and usually it will not, state law  denying the right to attorney's fees or giving a right thereto ... should be  followed." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259  n. 31, 95 S.Ct. 1612, 1622 n. 31, 44 L.Ed.2d 141 (1975) (citations and  quotations omitted).


14
 See Alyeska, 421 U.S. at 264 n. 39, 95 S.Ct. at 1625 n. 39 (noting that in the  Court's previous common benefit cases, application of the doctrine was limited  to cases where the benefits of the litigation "could be traced with some  accuracy, and there was reason for confidence that the costs could indeed be  shifted with some exactitude to those benefitting. In this case however,  sophisticated economic analysis would be required to gauge the extent to which  the general public, the supposed beneficiary ... would bear the costs.").


15
 That is not to say that the Alabama Supreme Court would only apply the common  benefit doctrine to governmental defendants. The relationship between a  defendant who is a governmental entity and the citizens who stand to benefit  from the lawsuit brought against that defendant is probably not the only type of  relationship where application of the common benefit doctrine is appropriate.


16
 The plaintiffs in this case have also asserted claims of fraud against GTE. The  Alabama Supreme Court has, on one occasion, recognized an exception to the  American Rule where "fraud, willful negligence or malice has been practiced."  See Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238, 1242-43  (Ala.1985). However, the Alabama courts have apparently not extended the  application of Reynolds beyond the facts of that case. Notably, the Reynolds  court emphasized that case involved fraud on the part of a trustee which caused  losses to the individual trusts of the class members, and thus, that the suit  was "essentially an equitable proceeding." Id. at 1241. Moreover, the plaintiffs  have not cited, and this Court has not found, any decision in the fifteen years  since Reynolds where an Alabama appellate court has shifted attorney's fees to a  defendant because it had committed fraud. For these reasons, we conclude that  application of the "fraud" exception alluded to in Reynolds is too speculative  to serve as a basis for including an award of attorney's fees in determining the  amount in controversy in this case.


17
 The fact that, in BLAB, we refer to federal defenses rather than causes of  actions, and to "removal" jurisdiction rather than "subject matter"  jurisdiction, reflects that the doctrine of complete preemption has generally  been considered in the context of a defendant seeking to remove an action that,  on its face, only asserts state law claims. In light of our conclusion that the  plaintiffs incorrectly relied on diversity jurisdiction as a basis for the  district court's subject matter jurisdiction over this action, it is the  plaintiffs rather than the defendant who argue that the complete preemption  doctrine provides an alternative basis for federal jurisdiction over this  action. Nonetheless, the same principles apply in this case as would apply if we  were determining the propriety of removal jurisdiction. See BLAB, 182 F.3d at  854 (noting that removal jurisdiction is available only where federal courts  have original jurisdiction over an action pending in state court).


