243 F.3d 1277 (11th Cir. 2001)
Eliza KIRKLAND, individually, and on behalf of all other Persons Similarly Situated, Plaintiff-Appellee,v.MIDLAND MORTGAGE COMPANY, Defendant-Appellant.
No. 00-10765.
United States Court of Appeals,Eleventh Circuit.
March 7, 2001.March 19, 2001

Appeal from the United States District Court for the Southern District of  Georgia. (No. 98-00083-CV-1), Dudley H. Bowen, Jr., Chief Judge.
Before ANDERSON, Chief Judge, and MARCUS and KRAVITCH, Circuit Judges.
ANDERSON, Chief Judge:


1
Midland Mortgage Company ("Midland") brings this interlocutory appeal of the  district court's certification of a class and denial of Midland's motion for  summary judgment in this diversity action. Because we conclude that the district  court lacked subject matter jurisdiction, we vacate and remand with instructions  to remand to the state court.

I. FACTS

2
The plaintiff, Eliza Kirkland, obtained a mortgage from Cameron-Brown in 1985  for her residence. Ten years later, Midfirst Bank acquired the mortgage and  Midland began servicing it through an arrangement these two corporations have.  As part of its responsibilities, Midland ensures that the mortgagor has  maintained hazard insurance because this protects the mortgagee's collateral. If  the mortgagor fails to retain the insurance, Midland is authorized to institute  collection remedies, including foreclosure. If the mortgagor is unable to obtain  insurance, Midland obtains "force-placed" or "lender-placed" insurance on the  property through Balboa Insurance Company ("Balboa").


3
Midland has a special procedure that it uses when placing insurance on these  properties. First, it sends a series of warning letters to the mortgagor which state when the insurance will be placed on the property, that the insurance may  be less than the previous coverage, what the cost of the new premium will be,  and that the insurance may be placed with an affiliate of Midland, i.e.  FirstInsure. Midland also states that usually it calls the mortgagor before  placing the insurance with FirstInsure. FirstInsure acquires the insurance  policies from Balboa, which insures properties that other companies decline to  insure. Balboa pays commissions of between twenty and thirty-three percent to  FirstInsure. This relationship with Balboa permits Midland to cancel policies  and return premiums and also to have policies issued retroactively.


4
Ms. Kirkland's mortgage required her to maintain hazard insurance on her  property, and she acquired her insurance through Allstate Insurance Company  ("Allstate"). On October 6, 1995, Allstate issued a cancellation notice of her  insurance, effective on September 29, 1995. Midland acquired the servicing  rights to the Kirkland mortgage in October 1995 but the notice of cancellation  was sent to the previous servicing company. Thus Midland did not learn of the  cancellation until January 1996. Because the property had apparently been  uninsured for several months, Midland dispensed with its usual procedures and  sent Ms. Kirkland only the last letter, informing her that insurance had been  issued and that the premium was $708, which would be charged to her escrow  account. This letter was dated April 3, 1996. After her escrow account was  analyzed, Midland sent her an escrow disclosure statement on July 29, 1996  informing her of the increase in mortgage payment that was needed.


5
Ms. Kirkland contacted Midland in August 1996, seeking an explanation. There  were numerous telephone contacts until the end of September 1997, when Allstate  faxed a copy of its records showing coverage for the second year of Balboa  coverage, September 1996 through September 1997. In one of the two faxes,  Allstate stated that the policy was a continuous coverage policy but it did not  explain the notice of cancellation or whether the insurance had been reinstated  during the first year of Balboa coverage, September 1995 through September 1996.  Midland cancelled the Balboa coverage and refunded Ms. Kirkland's payment for  the second year.


6
Ms. Kirkland filed suit in the Superior Court of Richmond County against Midland  and Balboa Insurance Company ("Balboa") on October 13, 1997, alleging breach of  fiduciary duty, fraud, theft, and money had and received. Shortly thereafter,  Balboa removed the case to federal court. On December 30, 1997, the district  court remanded the suit back to state court. On March 5, 1998, Ms. Kirkland  dismissed Balboa without prejudice. Thereafter, Midland removed the action to  the district court on April 23, 1998. Ms. Kirkland initially moved to remand but  later withdrew that motion.1


7
In October 1998, Ms. Kirkland moved for class certification, and the district  court granted the motion on January 4, 2000, for the breach of fiduciary duty  claim. At the same time, the district court denied Midland's motion for  reconsideration of its denial of Midland's motion for summary judgment. Both the  denial of the motion for summary judgment and the certification of the class  were certified by the district court pursuant to 28 U.S.C.  1292(b), and this  court granted permission to appeal pursuant to 28 U.S.C.  1292(b) and  Fed.R.Civ.P. 23(f). Thus, we have appellate jurisdiction of this interlocutory  appeal.

II. JURISDICTION

8
Federal courts are courts of limited jurisdiction and are required to inquire  into their jurisdiction at the earliest possible point in the proceeding. See  University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th  Cir.1999). Appellate courts must also examine the subject matter jurisdiction of  the lower courts in actions that they review. See id. (citing Mitchell v.  Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)).


9
One of the limited grounds of jurisdiction that federal courts have is diversity  jurisdiction, which is the only source of jurisdiction available in this case.  Article III of the Constitution provides the outer limits of the federal courts'  jurisdiction and vests in Congress the power to determine what the extent of the  lower courts' jurisdiction will be. See Morrison v. Allstate Indemnity Co., 228  F.3d 1255, 1261 (11th Cir.2000). The diversity jurisdiction statute, 28 U.S.C.   1332, requires not only diversity of citizenship among the parties but also that  "the matter in controversy exceeds the sum or value of $75,000, exclusive of  interest and costs." 28 U.S.C.  1332.


10
Generally, if no single plaintiff can satisfy the jurisdictional amount, then  there is no diversity jurisdiction. However, in certain instances, multiple  plaintiffs have a unified, indivisible interest in a common fund which would  permit them to aggregate2 their individual claims to reach the jurisdictional  amount. See Morrison, 228 F.3d at 1262 (quoting Zahn v. Int'l Paper Co., 414  U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973)).


11
Although the claim of each individual class member in the instant case was  apparently far less than the $75,000 jurisdictional amount, Midland removed this  case on the basis of Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th  Cir.1996). The court in Tapscott held that the claim of class members for  Alabama punitive damages was a single collective right in which the putative  class has a common and undivided interest, thus permitting determination of the  jurisdictional amount on the basis of the aggregate punitive damages for the  class.


12
However, in Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000)("Cohen II  "), we held that Tapscott 's holding about aggregation of punitive damages was  inconsistent with a binding earlier case, Lindsey v. Alabama Tel. Co., 576 F.2d  593 (5th Cir.1978).3 Cohen II held that where there is an intracircuit conflict  of authority, the earlier panel opinion binds, and thus that Lindsey must be  followed rather than Tapscott. See 204 F.3d at 1072. Both Tapscott and Lindsey  involved the issue of aggregation of Alabama punitive damages for purposes of  determining the jurisdictional amount, and thus the effect of Cohen II was to  abrogate Tapscott 's holding with respect to the aggregation of punitive  damages. Accord Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1264-65 (11th  Cir.2000) (following Cohen II ). Cohen II involved a class action asserting  claims, including punitive damages, based on Florida law. In Cohen v. Office  Depot, 184 F.3d 1292, 1295 (11th Cir.1999)("Cohen I "), the court had already  held that there was no material difference between the nature of Florida  punitive damages and Alabama punitive damages for purposes of the aggregation  issue. In both states, punitive damages serve the collective good by deterring a  public wrong and punishing egregious wrongdoing on the part of the defendant;  the award is measured to reflect, not the wrong done to a single individual, but  the wrongfulness of the conduct as a whole. Cohen II, 204 F.3d at 1075.


13
With Tapscott no longer available to prop up Midland's theory to support  jurisdiction, Midland resorts to several alternative arguments. First, Midland  argues that the instant case is governed by Georgia law, and that the nature of  punitive damages under Georgia law is materially different from that under the  laws of Alabama and Florida. We reject this argument. The only aspect of Georgia  law to which Midland points as being different is that a Georgia defendant would  not be concerned with the division of a potential punitive damages award. However, the same was true under Alabama law, see Tapscott, 77 F.3d at 1359, and  of course the binding Lindsey case establishes that there can be no aggregation  of Alabama punitive damages. Like the law in Florida and Alabama, the law of  punitive damages in Georgia restricts the use of punitive damages to the  deterrence and punishment of the defendant, not the compensation of the  plaintiff. See O.C.G.A.  51-12-5.1(c)("Punitive damages shall be awarded not as  compensation to a plaintiff but solely to punish, penalize, or deter a  defendant."). The amount of the award is based not on the injury to the  particular plaintiff but on the behavior of the defendant in general. See  Southeastern Sec. Ins. Co. v. Hotle, 222 Ga.App. 161, 164, 473 S.E.2d 256, 261  (1996). For purposes of the aggregation issue, we hold that the nature of  punitive damages under Georgia law is not materially different from that under  the laws of Alabama and Florida, and thus we hold that the rule against  aggregation of punitive damages established in Morrison and Cohen II applies  also to Georgia punitive damages.


14
We note that plaintiffs in the instant case argue that Oklahoma law, not Georgia  law, governs. We also note that the district court so held. We need not decide  which law governs, because we hold that the nature of punitive damages under  Oklahoma law is not materially different from that in Alabama, Florida, and  Georgia.4


15
Without aggregation of punitive damages, it is clear that Midland will not be  able to carry its burden of proof5 that punitive damages are likely to be large  enough to approach the $75,000 jurisdictional amount per class member, when  divided by the numerous class members in the instant case. If there are 9,400  class members, as Ms. Kirkland currently asserts, the claim including punitive  damages would have to total approximately $700,000,000,6 which seems  inconceivable under the circumstances of this case.7


16
Midland next argues that the Cohen II decision should not be applied  retroactively because jurisdiction is fixed at the time of removal. The general  rule is that judicial decisions are applied retroactively. See, e.g., McKinney  v. Pate, 20 F.3d 1550, 1565 (11th Cir.1994). Retroactive application of a "new"  rule of law may be avoided only if:


17
1) the decision adopting the rule does so "either by overruling clear past  precedent or by deciding an issue of first impression the resolution of which  was not clearly foreshadowed;" and


18
2) "the application of the old rule in the instant case [does] not contravene  the purpose and operation of the provision being interpreted;" and


19
3) "application of the new rule in the instant case [would] be inequitable."


20
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 n. 40(11th Cir.1998) (en  banc)(quoting McKinney, 20 F.3d at 1565).


21
In this case, none of the foregoing conditions is present. Because of the  existence of Lindsey, Tapscott did not provide clear precedent that Cohen II  overruled. Moreover, application of the Tapscott rule would contravene the  purpose of the provision being interpreted. As discussed above, subject matter  jurisdiction is an important consideration that cannot be waived or ignored so  that the application of an erroneous jurisdictional rule would contravene the  purpose of the relevant provision. Lastly, Midland has not demonstrated how  remand to the state court would be inequitable.


22
Finally, Midland requests that we remand this action to the district court to  give it an opportunity to demonstrate that Ms. Kirkland or another member of the  class could meet the jurisdictional amount in controversy. In Morrison, 228 F.3d  at 1275, we did just that. However, in Morrison, there was an apparently  credible assertion that some members of the class had suffered substantial  damages. By contrast, in the instant case, there has been no such assertion, but  rather a merely conclusory request for a remand. At oral argument, we pressed  counsel for Midland for some credible basis upon which Ms. Kirkland or another  class member might satisfy the jurisdictional amount, but counsel was unable to  articulate any such basis. Accordingly, we conclude that the requested remand  would be futile.

III. CONCLUSION

23
For the foregoing reasons, the judgment of the district court is vacated, and  the case is remanded to the district court with instructions to remand to the  state court due to lack of subject matter jurisdiction.


24
VACATED AND REMANDED WITH INSTRUCTIONS.



NOTES:


1
 Apparently the parties agreed that Kirkland would drop her motion to remand in  return for Midland's promise not to transfer the action to another district  court. However, parties cannot create federal jurisdiction by agreement. See  Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1261 (11th Cir.2000).


2
 As the court in Cohen v. Office Depot, Inc., 204 F.3d 1069, 1073 n. 3 (11th  Cir.2000), explained, the use of the word "aggregate" in this context "is  commonly used by courts when addressing the issue of whether the total amount of  a class claim should be attributed to each member of the class."


3
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981)(en banc),  this Court adopted as binding precedent all of the decisions of the former Fifth  Circuit handed down prior to the close of business on September 30, 1981.


4
 In Oklahoma, punitive damages are awarded to deter tortious behavior and to set  an example. See Okla. Stat. tit. 23,  9.1(A) (2000). The amount awarded is  based on a number of factors, including "the seriousness of the hazard to the  public," the excessiveness of the tort, and "the degree of the defendant's  awareness of the hazard and of its excessiveness." Id.


5
 Midland argues that dismissal of a case for lack of diversity requires a showing  to "a legal certainty that the claim is really for less than the jurisdictional  amount." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct.  586, 82 L.Ed. 845 (1938). However, in removal cases, the burden is on the party  who sought removal to demonstrate that federal jurisdiction exists. See  Tapscott, 77 F.3d at 1356. Where the plaintiff has not plead a specific amount  of damages, as Ms. Kirkland has not here, the defendant is required to show that  by a preponderance of the evidence that the amount in controversy can more  likely than not be satisfied. See id. at 1357.


6
 9,400 times $75,000 equals $705,000,000.


7
 Midland does not argue that an award of attorney's fees could significantly  contribute to satisfaction of the jurisdictional amount. However, even if  attorney's fees were permissible under the governing law, under Morrison any  such award would also have to be divided pro rata amongst the class members for  purposes of determining the jurisdictional amount, unless an applicable state  statute provided that attorney's fees were awarded solely to the class  representative. Morrison, 228 F.3d at 1274.


