         United States Court of Appeals
                    For the First Circuit


No. 03-1404

                KEITH STEWART and DIANA RAMÍREZ,

                    Plaintiffs, Appellants,

                               v.

       TUPPERWARE CORPORATION; SUNNY ISLANDS SALES, INC.;
              AMERICAN MOTORISTS INSURANCE COMPANY;
        RUTH FUENTE-ALICIA AND HER CONJUGAL PARTNERSHIP,

                     Defendants, Appellees.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
        [Hon. Salvador E. Casellas, U.S. District Judge]



                             Before

                  Torruella, Lynch and Howard,
                         Circuit Judges.


     Luis A. Meléndez-Albizu, with whom Law Offices of Luis A.
Meléndez-Albizu, were on brief, for appellants.
     Vicente Santori-Margarida, with whom Vicente Santori-Coll,
were on brief, for appellees.



                        February 2, 2004
           TORRUELLA, Circuit Judge.              Plaintiffs-appellants, Keith

Stewart and Diana Ramírez (hereinafter jointly referred to as the

"plaintiffs"),      brought    a    diversity     action      against     defendants-

appellees, Tupperware Corporation, American Motorists Insurance

Company, Sunny Islands Sales Inc., Ruth Fuente Alicia ("Fuente")

and her conjugal partner (hereinafter collectively referred to as

the "defendants").      The district court found that the plaintiffs'

damages    claims    failed        to   satisfy    the       amount-in-controversy

requirement of 28 U.S.C. § 1332 and therefore dismissed the case

for lack of subject matter jurisdiction pursuant to defendants'

Fed. R. Civ. P. 12(b)(1) motion.            For the reasons stated below, we

reverse.

                                   I.   Background

           Plaintiffs, recently married, traveled to Puerto Rico

for their honeymoon.          On September 12, 2000, plaintiffs went to

Charlie Auto to rent a car.             Driving their rental car, plaintiffs

exited Charlie Auto and proceeded eastbound on Magdalena Avenue.

           Meanwhile,      defendant        Fuente      was    departing     from   an

engagement arranged by co-defendant Tupperware Corporation. Fuente

drove   southbound    on   Condado       Avenue    --    a    one   way   street    for

northbound traffic only.

           When plaintiffs reached the intersection of Magdalena

Avenue and Condado Avenue, they proceeded through the intersection

because they had a green light.             Fuente, still driving the wrong


                                         -2-
way down a one way street, drove her car into the left side of

plaintiffs' car.         Both plaintiffs were injured in the crash and

were taken by ambulance to a nearby emergency clinic.

             As   a     result    of    the    crash,       Diana    Ramírez    suffered

whiplash, chest trauma, cuts on her leg, and bruising on many parts

of her body.      These injuries have allegedly resulted in continuing

chest and neck pain which has inhibited Ramírez's life.                               For

example, she claims that the chest pain was too severe to allow her

to breast feed her newborn child or have sexual relations with her

husband.     Further, Ramírez's injuries limited the amount of work

she could perform at her job.

             A medical examination conducted a little less than two

years    after    the    crash    reported         that   Ramírez     suffers    from   a

permanent       incapacity       of    3%     of    her     bodily    functions.        A

psychological      examination         conducted      one    year    after     the   crash

estimated       that    Ramírez       requires      intensive       psychotherapy      and

medication for one year.

             Keith Stewart suffered whiplash as a result of the crash.

A medical examination conducted a little less than two years after

the     crash     reported       that       Stewart       suffered     from     cervical

paravertebral muscle strain and that the crash caused Stewart to

have    7%   permanent     impairment         of   his    total     bodily    functions.

Stewart alleges that the injuries hinder his ability to work as a

New York policeman and prevented him from having intimate contact


                                            -3-
with his wife for about two to three months.             A psychological

examination conducted a year after the crash reported that Stewart

suffered intense emotional trauma.        The psychologist recommended

intensive psychotherapy and medication for approximately one year.

                            II.    Analysis

           We review the district court's dismissal for lack of

subject matter jurisdiction de novo.          Spielman v. Genzyme Corp.,

251 F.3d 1, 4 (1st Cir. 2001).          According to 28 U.S.C. § 1332,

federal "district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs," and there is

diversity of citizenship.       28 U.S.C. § 1332(a).     Where there are

multiple plaintiffs, each must allege a claim that is in excess of

$75,000.   See Clark v. Paul Gray Inc., 306 U.S. 583, 589 (1939).

In this case, there is no question that diversity of citizenship

exists.    Rather, the dispute turns on whether the damages exceed

$75,000.

           Since   plaintiffs    seek    to   invoke   federal   diversity

jurisdiction, they have the burden of showing that their claims

meet the amount-in-controversy requirement.        Spielman, 251 F.3d at

4.   The longstanding test for determining whether a party has met

the amount-in-controversy states that:

           The rule governing dismissal for want of
           jurisdiction in cases brought in the federal
           court is that, unless the law gives a
           different rule, the sum claimed by the

                                   -4-
           plaintiff controls if the claim is apparently
           made in good faith. It must appear to a legal
           certainty that the claim is really for less
           than the jurisdictional amount to justify
           dismissal.

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89

(1938) (footnotes omitted).      When applying this test, a court must

look at the circumstances at the time the complaint is filed.

Spielman, 251 F.3d at 5.           Plaintiffs' "general allegation of

damages that meet the amount requirement suffices unless questioned

by the opposing party or the court."               Id. (citing Dep't of

Recreation & Sports v. World Boxing Ass'n, 924 F.2d 84, 88 (1st

Cir.   1991)).   If     the   opposing    party    questions   the   damages

allegation, then "'the party seeking to invoke jurisdiction has the

burden of alleging with sufficient particularity facts indicating

that it is not a legal certainty that the claim involves less than

the jurisdictional amount.'"       Id. (quoting Dep't of Recreation and

Sports, 924 F.2d at 88) (further citations omitted).           Further,

           if, from the face of the pleadings, it is
           apparent, to a legal certainty, that the
           plaintiff cannot recover the amount claimed,
           or if, from the proofs, the court is satisfied
           to a like certainty that the plaintiff never
           was entitled to recover that amount, . . . the
           suit will be dismissed.

St. Paul, 303 U.S. at 289 (footnote omitted).

           Plaintiffs    brought    their   suit    under   the   diversity

jurisdiction of the federal court alleging Puerto Rican law causes

of action.   See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).


                                    -5-
Plaintiffs brought claims for (1) past and future physical, mental,

and emotional anguish, pain and suffering; (2) mental and emotional

anguish and distress resulting from witnessing their spouse suffer;

(3) loss of enjoyment of life and loss of consortium; (4) permanent

impairment to total bodily functions; and (5) future medical costs.

          Defendants questioned plaintiffs' allegation that the

damages for each plaintiff exceeded $75,000.            Thus, plaintiffs had

the burden of alleging facts indicating that it is not a legal

certainty that their individual claims involve less than $75,000.

To meet this burden, Diana Ramírez produced written interrogatories

documenting her injuries and pain, a medical report concluding that

Ramírez suffered a 3% permanent impairment and was at risk of

developing cervical spondylosis as a result of the accident, and a

psychological   evaluation      documenting     her    emotional   trauma   and

recommending      intensive       psychotherapy       and    medication     for

approximately one year.

          Keith       Stewart      produced     written       interrogatories

documenting his injuries, pain, and difficulty performing his job

as a New York policeman, a medical report concluding that Stewart

suffered a 7% permanent impairment, and a psychological evaluation

documenting    his    emotional    trauma     and   recommending    intensive

psychotherapy and medication for approximately one year.

          The        district      court,      after        considering     the

interrogatories, medical reports, and psychological evaluations,


                                     -6-
concluded that the plaintiffs failed to submit facts indicating

that it was not a legal certainty that their individual claims

involved less than $75,000.      We disagree.

           In reaching its conclusions, the district court examined

personal injury cases from the Puerto Rico Supreme Court, most of

which were over forty years old, which awarded damages, adjusted

for inflation, far below $75,000 for injuries similar to those

suffered by the plaintiffs.        Relying on the amount of damages

awarded by Commonwealth courts constituted error. Contra Thomas v.

Travelers Ins. Co., 258 F. Supp. 873 (E.D. La. 1966).           Although

"federal courts must, of course, look to state law to determine the

nature and extent of the right to be enforced in a diversity case,"

the "determination of the value of the matter in controversy for

purposes of federal jurisdiction is a federal question to be

decided under federal standards." Horton v. Liberty Mut. Ins. Co.,

367 U.S. 348, 352-53 (1961).       In our view, the district court's

decision constituted error.

           Using Puerto Rico Supreme Court cases to analyze the

amount-in-controversy for diversity purposes is the equivalent of

comparing apples and oranges.      Damages in a Puerto Rico civil case

are determined by a judge, not a jury.      In contrast, in the federal

courts,   "[t]he   task   of   estimating   money   damages,   especially

intangible, noneconomic loss, constitutes a core jury function."

Davignon v. Clemmey, 322 F.3d 1, 11 (1st Cir. 2003).       Thus, Puerto


                                   -7-
Rico Supreme Court cases are not an accurate indicator of the

possible damages that a federal jury would award for a claim

brought under Puerto Rico law.

          We have previously held that a federal district court, in

determining whether a damage award is excessive, should not compare

damages awarded in a federal diversity case with damages awarded by

the Supreme Court of Puerto Rico.      See Grajales-Romero v. American

Airlines, Inc., 194 F.3d 288, 300 (1st Cir. 1999) (quoting Mejías-

Quirós v. Maxxam Property Corp., 108 F.3d 425, 427 n.1 (1st Cir.

1997)). The fact that judges in the commonwealth courts frequently

award lesser sums than juries in the federal court "does not

override the general rule that a federal jury . . . is not bound in

making its determination by the amount that the Commonwealth courts

have awarded or approved."   Correa v. Hosp. San Francisco, 69 F.3d

1184, 1198 (1st Cir. 1995) (quoting LaForest v. Autoridad de las

Fuentes Fluviales, 536 F.2d 443, 446-47 (1st Cir. 1976)).          We

likewise hold that in determining the amount-in-controversy, a

federal district court should not be constrained by the amounts

awarded by the Supreme Court of Puerto Rico.

          We believe, based on the evidence, that the plaintiffs

met their burden of alleging facts indicating that it is not a

legal certainty that their claims involve less than $75,000.     This

becomes clear after examining cases, affirmed by this court, in

which federal juries in Puerto Rico returned verdicts for injuries


                                 -8-
similar to plaintiffs'.    Taking notice of amounts recovered by

plaintiffs in similar cases in a similar locality is but one way to

assess whether a plaintiff can recover the jurisdictional amount.

See, e.g., Felton v. Greyhound Lines, Inc., 324 F.3d 771 (5th Cir.

2003). It should be noted, however, that this method is not always

conclusive.   The fact that no prior plaintiff has recovered the

jurisdictional amount for a certain injury does not indicate, to a

legal certainty, that the plaintiff could not recover that amount.

In this case, however, federal juries in Puerto Rico have returned

verdicts far in excess of the jurisdictional amount for injuries

similar to plaintiffs'.

          In Havinga v. Crowley Towing and Transp. Co., 24 F.3d

1480 (1st Cir. 1994), we upheld awards ranging from $200,000 to

$450,000 per plaintiff for pain and suffering and loss of capacity

for enjoyment of life. In Havinga, the plaintiffs' boat was struck

by a barge, forcing plaintiffs to abandon ship and await rescue at

night in shark-infested waters. The plaintiffs presented their own

testimony regarding their pain and suffering, supplemented with the

testimony of a psychologist.   Though the plaintiffs did not suffer

physical injury, we upheld the damage awards.   See also Grajales-

Romero, 194 F.3d at 288 (holding that an award of $150,000 was not

excessive where plaintiff produced medical evidence of neck pains

and loss of cognitive functions resulting from a sign falling on

plaintiff's head); Smith v. Kmart Corp., 177 F.3d 19 (1st Cir.


                                -9-
1999) (holding that an award of $500,000 was not excessive where

plaintiff produced medical and psychological evidence of trauma and

continued pain resulting from a cooler falling on plaintiff's

head); Mejías-Quirós, 108 F.3d at 425 (holding that an award of

$200,000 for pain and suffering was not excessive where plaintiff

produced   medical   testimony   about    continuing   headaches,      mild

depression, low self-esteem, and post-traumatic stress).            These

cases are not on all fours with this case, but demonstrate that it

is not legally certain that a jury could not make an award of

$75,000.

           Both   plaintiffs   suffered   physical   injuries   from    the

accident that resulted in permanent impairment to their total

bodily functions.    In addition, they had to cope with the mental

anguish of spending their honeymoon in a hospital, Ramírez being

unable to breast feed their first child, and being unable to have

intimate contact with one another during the first three months of

marriage. Medical reports indicate that the plaintiffs may require

future medical and psychological care.      These facts, when compared

to comparable federal jury cases, indicate that it is not a legal

certainty that their individual claims involve less than $75,000.1


1
   Defendants also argue that part of plaintiffs' complaint was
made in bad faith because it incorrectly claims that the couple cut
their honeymoon short to receive medical treatment and that they
lost time from work to receive medical treatment when, in fact,
they never received the additional treatment. We do not find it
necessary to address this issue because plaintiffs reach the
jurisdictional amount without considering the additional medical

                                  -10-
                         III.   Conclusion

          For the foregoing reasons, we vacate the judgment of the

district court and remand for further proceedings consistent with

this opinion.

          Vacated and Remanded.




treatment they may or may not have had. See St. Paul, 303 U.S. at
289-90 (discussing that a suit will be dismissed for bad faith
damage allegations only when such claims are essential to reach the
jurisdictional amount).

                                -11-
