                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2491
                                   ___________

Brent E. Rasmussen,                      *
                                         *
             Plaintiff - Appellant,      *
                                         *
Kim Rasmussen,                           *
                                         * Appeal from the United States
             Plaintiff,                  * District Court for the District
                                         * of Nebraska.
       v.                                *
                                         *
State Farm Mutual Automobile             *
Insurance Company; State Farm            *
Entity, (True and Exact Name             *
Unknown) a part of State Farm            *
Insurance Companies,                     *
                                         *
             Defendants - Appellees.     *
                                    ___________

                             Submitted: April 11, 2005
                                Filed: June 9, 2005
                                 ___________

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       Brent Rasmussen was severely injured by an uninsured motorist while trying
to help another (insured) motorist out of a ditch on Interstate 80 between Lincoln and
Omaha in Nebraska. After the accident, Rasmussen successfully claimed $100,000
in uninsured motorist benefits from his policy ("the Nebraska policy") with State
Farm. He then tried to claim uninsured motorist benefits from the State Farm policy
of the motorist whom he was trying to help ("the Michigan policy"). However, both
policies provide that if an injured person is entitled to uninsured motorist benefits
from more than one policy, the total amount received shall not exceed the policy with
the highest limit. Both policies limit uninsured motorist benefits to $100,000.
Because Rasmussen had already received a $100,000 check, made payable jointly to
Rasmussen and his wife Kim, under the Nebraska policy, State Farm denied the claim
for benefits under the Michigan policy. Rasmussen brought this diversity suit in
federal district court, alleging that he was entitled to $100,000 under the Michigan
policy. He now argues that since the Nebraska policy benefit check was made
payable jointly to him and his wife (who had asserted injuries arising from loss of
consortium), he has not received the entire $100,000, and is entitled to at least
$100,000 more in benefits from the Michigan policy.

      Resolving an initial choice-of-law dispute, the magistrate judge, sitting by
consent of the parties pursuant to 28 U.S.C. § 636, ruled that Michigan law applied
because Michigan had the most significant contacts with this particular contract
action.1 Based on Michigan law, Rasmussen could not recover under the Michigan
policy because Michigan case law required that there be physical contact between the
injured person and the insured car, Rohlman v. Hawkeye-Sec. Ins. Co., 526 N.W.2d
183, 188 (Mich. App. 1994), and that in order for uninsured coverage to attach the
insured vehicle must be the instrumentality which produced the injuries, Century Mut.
Ins. Co. v. League Gen. Ins. Co., 541 N.W.2d 272, 275 (Mich. App. 1995). Because


      1
       The Michigan policy was issued in Michigan, in the names of the motorist's
parents. The parents lived in Michigan, and their daughter drove the car with their
permission while attending the University of Nebraska–Lincoln at the time of the
accident. The car was licensed and registered in Michigan; the insurance policy was
purchased in Michigan; and the Michigan State Farm agent did not know the car was
being primarily driven in Nebraska while the daughter was at college.

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neither circumstance existed in this case, the magistrate judge entered judgment in
favor of State Farm.

       In his complaint Rasmussen pleaded that he was entitled to at least $100,000
from the Michigan policy. Because we questioned whether Rasmussen could legally
recover more than $75,000 under the policy, our jurisdiction under 28 U.S.C. § 1332
was in doubt. We ordered supplemental briefing by the parties on the amount in
controversy issue. See James Neff Kramper Family Farm P'ship v. IBP, Inc., 393
F.3d 828, 831 (8th Cir. 2005) (ordering supplemental briefing when court of appeals,
sua sponte, questioned jurisdictional amount in controversy and the issue had not
previously been raised by the parties or the district court). The party invoking federal
jurisdiction must prove the requisite amount by a preponderance of the evidence. Id.

       After reviewing the supplemental briefs, we conclude that Rasmussen has not
met this burden. Rasmussen may only recover $50,000 from the Michigan policy.
Rasmussen concedes as much in his opening brief when he argues that regardless of
the anti-stacking provisions in both policies, because the $100,000 check was made
payable jointly to him and his wife and deposited into a joint Nebraska bank account,
"[t]he presumption is that they each owned equal parts, i.e., $50,000.00." (Emphasis
added). See Neb. Rev. Stat. § 30-2722(b) (it is presumed that monies deposited in a
joint marital account are contributed in equal amounts by both parties). Rasmussen
essentially argues that he is entitled to another $50,000. And we agree that this would
be all that he is legally entitled to, if anything.

       Additionally, in supplemental briefing, Rasmussen notes that he can exceed the
jurisdictional amount "when attorney fees are considered." But, only statutory
attorney fees count toward the jurisdictional minimum calculation. Crawford v. F.
Hoffman-LaRoche, Ltd., 267 F.3d 760, 766 (8th Cir. 2001). Rasmussen, who has the
burden of proving jurisdictional amount, has not established a statutory entitlement
to attorney fees if he prevailed in this action. Accordingly, because Rasmussen

                                          -3-
cannot prove he is legally entitled to damages greater than the requisite jurisdictional
amount in controversy, we dismiss this case, without prejudice, for lack of
jurisdiction.
                       ______________________________




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