                                                                         [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 98-9412
                              ________________________

                         D. C. Docket No. 97-03557-1-CV-JOF

RALPH C. DARDEN, OTIS LEE IVORY, and
CORA J. IVORY, and all others similarly situated,
                                                                    Plaintiffs-Counter-
                                                                    Defendants-Appellants,

                                            versus

FORD CONSUMER FINANCE COMPANY,
INC., a Georgia Corporation and ASSOCIATES
FINANCIAL LIFE INSURANCE COMPANY,
a Foreign Corporation,
                                                                      Defendants-Counter-
                                                                      Claimants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                 (January 12, 2000)

Before BIRCH and HULL, Circuit Judges, and HODGES*, Senior District Judge.
HULL, Circuit Judge:


       *
          Honorable William Terrell Hodges, Senior U.S. District Judge for the Middle District
of Florida, sitting by designation.
      Appellants-Plaintiffs Ralph C. Darden, Otis Lee Ivory, and Cora J. Ivory

brought this class action in state court against Appellees-Defendants, Ford

Consumer Finance Company, Inc. and Associates Financial Life Insurance

Company, Inc., for Georgia Insurance Code violations by selling credit life

insurance for fifteen-year loans. After Defendants’ removal to federal court,

Plaintiffs moved to remand this case for lack of subject matter jurisdiction.

Plaintiffs now appeal the district court’s denial of their motion to remand and

dismissal of their complaint without prejudice for failure to exhaust administrative

remedies. After review, we find that the district court lacked subject matter

jurisdiction over Plaintiffs’ class action. Thus, we vacate the district court’s

dismissal of the complaint and remand this case to the district court for it to

remand this case to the Superior Court of Fulton County, Georgia.

                I. FACTUAL AND PROCEDURAL BACKGROUND

      As Georgia residents, Plaintiffs Ralph C. Darden, Otis Lee Ivory and Cora J.

Ivory (“Plaintiffs”) purchased credit life insurance from the Defendant, Associates

Financial Life Insurance Company (“AFLIC”), a Tennessee corporation with its

principal place of business in Texas. Plaintiffs purchased the insurance in

connection with their fifteen-year loans obtained from Defendant Ford Consumer

Finance Company (“Ford”), a New York corporation with its principal place of
                                           2
business in Texas. Darden’s loan agreement with Ford financed $62,783.10 with

13.4% interest per annum for fifteen years. A $3,584.80 premium was charged for

credit life insurance with a ten-year term and added into the principal amount

borrowed. Thus, through Ford, Darden paid the premium in full to AFLIC.

      Similarly, the Ivorys’ loan agreement with Ford financed $56,086.24 with

15.1% interest per annum for fifteen years. A $4,692.74 premium was charged for

credit life insurance with a ten-year term and added into the principal amount

borrowed. Thus, through Ford, the Ivorys paid the premium in full to AFLIC.

      Plaintiffs contend that the Defendants violated Georgia law by AFLIC’s

selling and Ford’s financing credit life insurance for fifteen-year loans without the

necessary authorizations or licenses from the Georgia Department of Insurance.

See Ga. Code. Ann. § 33-31-2(c). Plaintiffs’ complaint contains four counts: (a)

Count One for breach of legal and private duty; (b) Count Two for money had and

received, (c) Count Three for conversion, and (d) Count Four for violation of

Georgia’s Racketeering Influenced and Corrupt Organizations Act (“RICO”).

Although requesting damages in all counts, Plaintiffs stipulated that their damages

will not exceed $75,000 exclusive of interest, costs, and attorneys’ fees. In Count

Four, Plaintiffs also seek to recover attorneys’ fees under Georgia’s RICO statute,

Ga. Code. Ann. § 16-14-6(c).


                                          3
      Plaintiffs filed suit in the Superior Court of Fulton County, Georgia.

Defendants moved to dismiss and simultaneously removed this case to federal

court alleging diversity jurisdiction. Plaintiffs then moved to remand to state court,

asserting that the amount in controversy did not exceed $75,000. Defendants

opposed the remand motion, contending that the attorneys’ fees sought by

Plaintiffs and potential members of the putative class may be aggregated to satisfy

the jurisdictional amount-in-controversy requirement.

      The district court denied Plaintiffs’ motion to remand, granted Defendants’

motion to dismiss based on Plaintiffs’ failure to exhaust administrative remedies,

and denied Plaintiffs’ motion for class certification as moot. Plaintiffs timely

appealed.

                          II. STANDARD OF REVIEW

      The issue of whether the district court had subject matter jurisdiction over

Plaintiffs’ complaint is a question of law subject to de novo review. Mutual

Assurance, Inc. v. United States, 56 F.3d 1353, 1355 (11th Cir. 1995). The district

court’s decision to dismiss Plaintiffs’ claims for failure to exhaust administrative

remedies involves the interpretation and application of the Georgia Insurance

Code, Ga. Code. Ann. § 33-2-17, and we review de novo questions of statutory

interpretation. Gonzalez v. McNary, 980 F.2d 1418, 1419 (11th Cir. 1993).


                                          4
                                       III. DISCUSSION

A. Subject Matter Jurisdiction

       Several well-established principles frame and inform the jurisdiction issue in

this case. Removal jurisdiction exists only when the district court would have had

original jurisdiction over the action. See 28 U.S.C. § 1441(a); Wisconsin Dep’t of

Corrections v. Schacht, ___ U.S. ___, 118 S. Ct. 2047, 2051 (1998); Davis v. Carl

Cannon Chevrolet-Olds, Inc. 182 F.3d 792, 794 (11th Cir. 1999). Original

jurisdiction may be based on complete diversity of the parties’ citizenship and an

amount in controversy exceeding $75,000. See 28 U.S.C. § 1332(a).1 Neither

party disputes the existence of complete diversity of the parties’ citizenship.

Therefore, the only jurisdictional issue is whether the amount in controversy

exceeds $75,000.

       This issue is further narrowed because all Plaintiffs stipulate that each

individual class member will neither request nor accept damages in excess of

$75,000, exclusive of interests, costs and attorneys’ fees. Furthermore, the claims

for compensatory damages of the individual Plaintiffs here cannot be aggregated to

establish the required amount in controversy. Snyder v. Harris, 394 U.S. 332, 336


       1
         “The 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 is
between (1) citizens of different States . . . .” 28 U.S.C. § 1332(a).

                                                  5
(1969) (upholding “[t]he doctrine that separate and distinct claims could not be

aggregated”); Zahn v. International Paper Co., 414 U.S. 291, 301 (1973); Davis,

182 F.3d at 794 (“[T]he compensatory damage claims of individual class members

may not be aggregated to satisfy the amount [in controversy]”). At least one

individual plaintiff in a class action must have a damage claim greater than

$75,000 for a federal court to have diversity jurisdiction over the case. Zahn, 414

U.S. at 299 (“[T]he federal court was without jurisdiction where none of the

plaintiffs presented a claim of the requisite size”). Furthermore, no one asserts that

any individual Plaintiff’s damage claim, added to that individual Plaintiff’s share

of attorneys’ fees under the RICO statute would be enough to satisfy the amount in

controversy.2 Thus, the sole jurisdictional issue left for this Court to decide is

whether all of the Plaintiffs’ shares of any potential attorneys’ fees awarded under

Georgia’s RICO statute may be aggregated to satisfy the amount-in-controversy

requirement for diversity jurisdiction.

       To help us answer that question, we first review the general rules regarding

when aggregation is permissible to satisfy the jurisdictional amount-in-controversy

requirement. In Snyder v. Harris, 394 U.S. 332 (1969), the Supreme Court held

       2
         For example, the allegedly illegal premium charged to Plaintiff Darden was only
$3,584.80. Even combining the interest, treble damages and Darden’s individual share of
reasonable attorneys’ fees under the RICO statute, the amount will not come close to
approaching the $75,000 amount-in-controversy requirement.

                                              6
that aggregation is permissible to meet the amount-in-controversy requirement

where “two or more plaintiffs unite to enforce a single title or right in which they

have a common and undivided interest.” 394 U.S. at 335. See also Zahn v.

International Paper Co., 414 U.S. 291, 294 (1973); Clark v. Paul Gray, Inc., 306

U.S. 583, 588 (1939); Shields v. Thomas, 58 U.S. 3, 5 (1854); Davis v. Carl

Cannon Chevrolet-Olds, Inc, 182 F.3d 792, 796 (11th Cir. 1999); Tapscott v. MS

Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996). This Court has held that

“[t]he corollary” to this holding “is that ‘separate and distinct’ claims may not be

aggregated to satisfy the jurisdictional requirement.” Tapscott, 77 F.3d at 1357

(11th Cir. 1996) (citing Snyder, 394 U.S. at 336).

      While the Supreme Court has relied on this rule only to determine if joint

plaintiffs may aggregate the entire value of their claims, “this circuit has extended

the application of the ‘single title or right’ principle to address the aggregation of

discrete portions of each plaintiff’s claim for relief.” Davis, 182 F.3d at 796; see

also Tapscott, 77 F.3d at 1358, n.11. On two occasions, this Court has examined

whether discrete portions of each plaintiff’s claim to relief can be aggregated for

purposes of satisfying the jurisdictional amount-in-controversy requirement.

      First, in Tapscott, this circuit addressed whether punitive damages sought in

a putative class action may be aggregated to satisfy the amount-in-controversy


                                           7
requirement. Although the Plaintiffs here have not sued for punitive damages, the

discussion of aggregation in Tapscott informs our analysis here. In Tapscott, this

Court determined that the nature and purpose of punitive damages under Alabama

law is “to deter wrongful conduct and punish those responsible.” 77 F.3d at 1358

(citing Reserve Nat’l Ins. Co. v. Crowell, 614 So.2d 1005, 1009 (Ala. 1993)).

Thus, this Court also found under Alabama law (a) that “[a]n injured party is not

entitled to punitive damages as a matter of right,” (b) that the “state and not the

victim is considered the true party plaintiff because punitive damages do not

compensate a victim for loss but serve to punish and deter,” and (c) that “Alabama

punitive damages are awarded for the public benefit--the collective good.” Id.

(citing Maryland Cas. Co. v. Tiffin, 537 So.2d 469, 471 (Ala. 1988)). In light of

these findings, this Court held in Tapscott that “[t]he punitive damages sought in

[that] case are a single collective right in which the putative class has a common

and undivided interest; the failure of one plaintiff’s claim will increase the share of

successful plaintiffs.” Id. at 1359. Therefore, this Court concluded that “punitive

damages in [that] class action suit may be considered in the aggregate when

determining the amount in controversy for jurisdictional purposes.” Id.

Nevertheless, this Court cautioned in Tapscott that “[w]hile the facts in this case

result in an aggregation of punitive damages, other factual situations may dictate


                                           8
that punitive damages are non-aggregable.” Id.

      Subsequently in Davis v. Carl Cannon Chevrolet-Olds, Inc, 182 F.3d 792

(11th Cir. 1999), this Court examined whether attorneys’ fees under Alabama law

may be aggregated in a putative class action to satisfy the amount-in-controversy

requirement. This Court first found that under Alabama law the plaintiffs in the

putative class would not be able to recover attorneys’ fees as a separate, discrete

element of recovery and that any award of attorneys’ fees would have to be

deducted from the plaintiffs’ damage fund. Davis, 182 F.3d at 795. Therefore the

narrow issue in Davis was “whether a fee to be deducted from a common fund

may, if it exceeds $75,000, satisfy the amount-in-controversy requirement.” Id. at

796. Similarly to Tapscott, this Court’s inquiry in Davis focused on whether or not

an attorneys’ fees award deducted from a common fund represented a “single title

or right.” Davis, 182 F.3d at 796. Once again, we looked to the purpose and

nature of the award in question. In doing so, this Court noticed that the first

reasonable characterization of a common-fund attorneys’ fee is “to view the fee as

part of the compensatory damage award.” Id. If the damages claimed were purely

compensatory, the attorneys’ fees could be no more aggregable than other

compensatory damages. Alternatively, if the fee is viewed “as a lump sum

collectively benefitting the plaintiff class, the common-fund fee does not represent


                                          9
a ‘right’ of the plaintiffs.” Id.

       Ultimately, this Court found in Davis that “the common-fund fee . . . is most

likely a matter solely for the court and the plaintiffs’ lawyers [and] . . . is often

calculated without representation of the plaintiffs’ interest.” Id. at 797. Based on

this analysis, this Court held that common-fund attorneys’ fees awarded under

Alabama common law are not “a collective benefit for the plaintiffs, who have

been excused from a debt at the defendant’s expense,” but instead “directly

compensate the lawyers who have acted independently as ‘private attorneys

general.’” Id. Therefore, this Court in Davis concluded, “[i]n short, the common-

fund attorneys’ fee does not represent a collective interest of the plaintiff class, and

it is not aggregable.” Id.3

B. Georgia’s RICO Statute

       Against this background, we now examine whether the attorneys’ fees

recoverable under Georgia’s RICO statute, Ga. Code. Ann. § 16-14-6(c), may be

aggregated to satisfy the amount-in-controversy requirement. As in Tapscott and

Davis, this Court’s inquiry focuses on whether an attorneys’ fee award under the

applicable state law represents a single title or right in which all plaintiffs have a



       3
          Davis was not decided until July 26, 1999, which was after the learned district judge’s
order, dated September 30, 1998, denying the motion to remand and dismissing this case.

                                                10
common and undivided interest or a separate and distinct claim of each plaintiff.

To determine this, we look to Georgia law and the nature and purpose of the

attorneys’ fees award under Georgia’s RICO statute.

       Georgia’s RICO statute provides that “any person who is injured” shall

recover attorneys’ fees as follows :

              Any person who is injured by reason of any violation of Code
       Section 16-14-4 shall have a cause of action for three times the actual
       damages sustained and, where appropriate, punitive damages. Such
       person shall also recover attorneys’ fees in the trial and appellate
       courts and costs of investigation and litigation reasonably incurred.
       The defendant or any injured person may demand a trial by jury in any
       civil action brought pursuant to this Code section.

Ga. Code. Ann. § 16-14-6(c). This statute gives each individual plaintiff in a

putative class the right to recover attorneys’ fees in the case. Thus, the plain

language of section 16-14-6(c) makes it clear that the statutory award of attorneys’

fees represents a separate and distinct interest awarded to compensate each injured

plaintiff individually.4



       4
          Defendants contend that we should adopt the analysis of the Fifth Circuit in In re Abbot
Laboratories, 51 F.3d 524 (5th Cir. 1995) and permit the aggregation of attorneys’ fees for
jurisdictional purposes in this case. Defendants reliance on In re Abbot Laboratories is
unavailing. In Abbot, the court aggregated attorneys’ fees for jurisdictional purposes because
the Louisiana statute in question specifically authorized awards of attorneys’ fees to the “class
representative.” See In re Abbot Laboratories, 51 F.3d at 526 (“The plain text of the first
sentence of [Article] 595 awards the fees to the ‘representative parties.’”). In contrast, Georgia’s
RICO statute does not contain this class language but refers to the individual person who is
injured.

                                                11
      Similarly, Georgia case law provides that the purpose and nature of statutory

awards of attorneys’ fees under Georgia law is to compensate the individual

injured plaintiff. In City of Warner Robins v. Holt, 470 S.E.2d 238 (Ga. App.

1996), the Georgia Court of Appeals expressly stated that the purpose of statutory

attorneys’ fees is not to punish or penalize a defendant but to compensate the

injured party, as follows:

      Though awards of litigation expenses and attorney fees may often
      have a somewhat punitive effect on the party against whom they are
      awarded, to punish or penalize is not their purpose. Rather, in those
      limited circumstances under which such awards are authorized by law,
      the purpose is to compensate an injured party, in order that such
      parties are not further injured by the cost incurred as a result of the
      necessity of seeking legal redress for their legitimate grievances.

City of Warner Robins, 470 S.E.2d at 240. See also F.N. Roberts Pest Control Co.

v. McDonald, 208 S.E.2d 13, 16 (Ga. App. 1974); Busbee v. Sellers, 29 S.E.2d

710, 711-12 (Ga. App. 1944). More specifically, the Georgia Supreme Court has

stated that the purpose of the award of attorneys’ fees under Georgia’s RICO

statute is to compensate civil plaintiffs. Dee v. Sweet, 489 S.E.2d 823, 825 (Ga.

1997). In Dee, the Georgia Supreme Court court noted that section 16-14-6(c)

“promotes [the] legislative purpose [of the Georgia RICO statute] in that it

provides compensation to civil plaintiffs who have successfully established that

they have been injured by a defendant’s RICO violations by including in the


                                         12
amount recoverable those attorney fees and costs of investigation and litigation

reasonably incurred by plaintiffs in the trial and appellate courts.” Id.

      After review, we hold that each Plaintiff’s share of the attorneys’ fees

recoverable under Georgia’s RICO statute may not be aggregated to satisfy the

amount-in-controversy requirement because under Georgia law each individual

Plaintiff has a separate and distinct statutory right or claim to recover those

attorneys’ fees, and Georgia law provides that those fees are to compensate the

injured Plaintiff. The Plaintiffs here are joining to enforce their individual rights to

recover attorneys’ fees as part of their compensatory damages; they are not joining

to enforce a single right in which they have a common and undivided interest and

are not seeking to deduct sums as attorneys’ fees from a common fund. Punitive

damages in Tapscott furthered the collective interest in deterrence and punishment;

in contrast, the purpose of attorneys’ fee awards under Georgia’s RICO statute law

is to compensate the injured party. Therefore, the attorneys’ fees here may not be

aggregated. See Davis, 182 F.3d at 796 (“When, as here, the damages claimed are

purely compensatory, the attorney’ fees are no more aggregable than the

compensatory damages would be.”).

      In light of this holding, Defendants’ second argument that Plaintiffs failed to

exhaust administrative remedies is rendered moot. Thus we do not address this


                                          13
issue.

                                  IV. CONCLUSION

         We vacate the district court’s order, dated September 30, 1998, denying

Plaintiffs’ motion to remand and granting Defendants’ motion to dismiss and

remand this case to the district court for it to remand this case to the Superior Court

of Fulton County, Georgia.

         VACATED AND REMANDED.




                                          14
