                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1757
                        ___________________________

        Robert Hurst, on behalf of himself and all others similarly situated

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                           Nissan North America, Inc.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: May 14, 2013
                               Filed: May 31, 2013
                                  [Unpublished]
                                 ____________

Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

       Robert Hurst brought a state-wide class action lawsuit against Nissan North
America, Inc. (“Nissan”) in Missouri state court on December 14, 2009, alleging that
certain cars manufactured by Nissan had defective dashboards. The petition sought
compensatory damages as well as attorneys’ fees and costs. On February 16, 2010,
Nissan removed the action to federal court under the Class Action Fairness Act of
2005 (“CAFA”), 28 U.S.C. § 1332(d), § 1453. The district court granted Hurst’s
motion for remand, concluding that, based on the petition, the amount in controversy
was (at most) $2,858,000, thus falling short of CAFA’s $5,000,000 jurisdictional
requirement. Nissan did not seek review of the court’s remand order, and a state
court subsequently certified a class of Nissan vehicle owners and appointed Hurst as
the class representative. Trial was set for January 7, 2013. Three weeks before trial,
counsel for Hurst submitted proposed jury instructions for punitive damages. Nissan
promptly removed the action to federal court, contending that, in light of the
requested instruction for punitive damages, CAFA’s amount in controversy
requirement was now satisfied. Nissan also argued that its removal was timely under
28 U.S.C. § 1446(b)(3) because Hurst’s state court petition had not adequately
pleaded punitive damages and thus it first became ascertainable that the action was
removable when Hurst submitted proposed instructions. The district court1 agreed
with Nissan that its removal was timely. See Hurst v. Nissan N. Am., Inc., No. 4:12-
CV-1488, 2013 WL 65466, at *3-4 (W.D. Mo. Jan. 4, 2013). But because Hurst’s
petition failed to adequately plead punitive damages, the court concluded that such
damages were, as a matter of Missouri law, unrecoverable at trial and thus CAFA’s
amount in controversy requirement was not met. Id. at *4. Nissan petitioned for
leave to appeal the remand order under 28 U.S.C. § 1453(c). We granted the petition,
and now affirm.

       “CAFA provides the federal courts with original jurisdiction to hear a class
action if the class has more than 100 members, the parties are minimally diverse, and
the matter in controversy exceeds the sum or value of $5,000,000.” Standard Fire Ins.
Co. v. Knowles, 133 S. Ct. 1345, 1348 (2013) (quotations omitted). As the proponent
of federal jurisdiction, Nissan has the burden to establish by a preponderance of the
evidence that the jurisdictional amount is satisfied. See Bell v. Hershey Co., 557


      1
       The Honorable David Gregory Kays, District Judge for the Western District
of Missouri.

                                         -2-
F.3d 953, 956 (8th Cir. 2009). Under this standard, Nissan need not prove that the
damages “are greater than the requisite amount,” only that a fact-finder “might legally
conclude that they are.” Id. at 959 (emphasis in original and quotations omitted).
Once Nissan has met its initial burden, Hurst can avoid federal court only by
establishing “that it is legally impossible to recover in excess of the jurisdictional
minimum.” Id. It is the amount in controversy at the time of removal that controls
this jurisdictional inquiry. See Hargis v. Access Capital Funding, LLC, 674 F.3d 783,
789-90 (8th Cir. 2012).

      Here, the district court concluded that, because punitive damages were not
sought in the state court petition, such damages were legally unrecoverable under
Missouri law.2 See Hurst, 2013 WL 65466, at *4, citing Green v. Study, 286 S.W.3d
236, 243 (Mo. App. 2009), and Benson v. Jim Maddox Nw. Imports, Inc., 728 S.W.2d
668, 669-70 (Mo. App. 1987); see also Mo. Rev. Stat. § 509.200 (“In actions where
exemplary or punitive damages are recoverable, the petition shall state separately the
amount of such damages sought to be recovered.”); Mo. R. Civ. P. 55.19. On appeal,
Nissan does not dispute the court’s construction of state law -- specifically, its
conclusion that punitive damages may not be awarded unless they are specifically
pleaded in the petition. Instead, Nissan argues the court erred in predicting that,
because Hurst’s request for punitive damages was made on the eve of trial, the state
court would necessarily deny a request to amend the petition to add a claim for
punitive damages. But this argument puts the cart before the horse. The


      2
       Neither party on appeal challenges the district court’s ruling that, under 28
U.S.C. § 1446(b)(3), Nissan’s removal was timely. We agree with the court’s
conclusion. Each of Hurst’s three state court petitions, including the now-operative
Second Amended Petition, sought only compensatory damages. Indeed, as Hurst now
concedes, the petitions neither expressly stated a claim for punitive damages, nor
alleged facts that could have supported a punitive damages award. The court
therefore properly held that Nissan’s removal seven days after Hurst proposed jury
instructions for punitive damages was timely.

                                         -3-
jurisdictional consequence of a motion to amend to add punitive damages was not
before the district court, and is not now before us on appeal, as no motion has been
made. We do not construe the court’s order as impermissibly speculating on what a
state court may or may not do. Rather, the court properly considered whether Hurst
had established to a legal certainty that, under state law, a fact-finder cannot award
more than $5,000,000.

       Nissan also relies on 28 U.S.C. § 1446(b)(3), which provides, in relevant part,
that “a notice of removal may be filed within 30 days after receipt by the
defendant . . . of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” According to Nissan, the inclusion of the terms “motion” and “other
paper” evinces congressional intent not to make formal amendments a prerequisite
to removal. To hold otherwise, says Nissan, would effectively write the term “other
paper” out of the statute. But § 1446 merely sets forth the procedural requirements
for removal to federal court; it does not inform the substantive question of whether
the action is removable in the first place. Stated differently, Nissan’s argument begs
the ultimate question: Is the case one which is, or has become, removable?
Construing Missouri law, the district court concluded that, at the time of removal, the
case was not removable because it was legally impossible for the class to recover
more than $5,000,000. We agree.

       Nissan understandably felt ambushed by Hurst’s counsel. That counsel would
propose jury instructions for punitive damages, having obtained a remand to state
court because such damages were legally unrecoverable under Missouri law, strikes
us as peculiar if not questionable behavior. On remand, should punitive damages find
their way into the case for consideration by the jury (whether by formal amendment
to the pleadings or otherwise), immediate removal would be timely and almost
certainly proper.



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        The district court’s Order Granting Motion To Remand dated January 4, 2013,
is affirmed.
                         ______________________________




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