Harris v. Sagamore Insurance Company, No. 08-109, 2008 WL 4816471 (E.D.Ark. Nov. 3, 2008).

Sometimes life imitates art. In the classical view, the structure of narrative is properly divided into three acts. This analysis may be traced back to Aristotle’s Poetics, wherein that great thinker propounded that the structure of narrative is properly divided into beginning, middle, and end:


“These principles being established, let us now discuss the proper structure of the Plot . . . . A whole is that which has a beginning, a middle, and an end. A beginning is that which does not itself follow anything by causal necessity, but after which something naturally is or comes to be. An end, on the contrary, is that which itself naturally follows some other thing, either by necessity, or as a rule, but has nothing following it. A middle is that which follows something as some other thing follows it. A well constructed plot, therefore, must neither begin nor end at haphazard, but conform to these principles.” 

So, then, our CAFA removal epic now comes to completion, with Harris v. Sagamore Insurance Co. as the third and final act (following on the two acts of Toller v. Sagamore Ins. Co., see the CAFA LawBlog analysis of Toller II, posted on July 22, 2008 and the analysis of Toller I, posted on February 11, 2008. 

The careful reader may discern herein both an elegant example of the classical three-act play, and an instructive lesson on the potential CAFA consequences of a request for injunctive relief. The tale is presented here in its traditional lyric form, but commentary has been added as appropriate, in italics, to provide a modern-day interpretation of this epic tale.

ACT ONE: In which “Toller,” Sagamore, and the Oracle are introduced.

As has been told at length elsewhere (Editors’ Note, See the CAFA Law  Blog analysis of Toller I, posted on February 11, 2008 ), our Protagonist, in disguise as “Gwendolyn Toller,” did don the mantle of Heroine of the People [class representative] and issued challenge against our Antagonist, one Sagamore Insurance Company [defendant]

“Toller” sought to bring Sagamore to justice for the alleged failure to abide by the law of the her home country [in particular, an Arkansas statute that purportedly required Sagamore either to obtain from its automobile insureds a waiver of certain “no-fault coverages” or else to provide them with a statutory minimum coverage]

“Toller” chose as the field of battle her home country [Arkansas state court], and she asked the gods of the home country for two prizes if she should be the victor in the contest: One, a bag of gold for “Toller” and her people–but not so much gold that the battle might be carried into foreign lands! [damages, not to exceed “$4,999,999,” one dollar short of CAFA jurisdiction]; and Two, a command that Sagamore should go forth and do right and no more trespass against the laws of her home country [injunctive relief, ordering compliance with the insurance statute].

Crafty Sagamore, however, did pray to the gods of the foreign lands that the battle be taken thenceforth [removed to federal court]. And so “Toller” and Sagamore did come before the Oracle [the United States District Court for the Eastern District of Arkansas], and “Toller” did ask that the Oracle let the contest return to her home country [moved for remand to state court]. The Oracle asked that each make their offering.

“Toller” did state that she herself sought so little gold that she was beneath the notice of the Oracle [less than $75,000 individual amount in controversy] and swore a grave and heavy oath that her people would not together take so much gold as to incur the Oracle’s scrutiny [the petition limited damages for the class to no more than $4,999,999]. Sagamore responded, however, saying that “Toller” did in fact seek much gold for herself [more than $75,000] and for her people as well, because the acts that “Toller” sought to command would cost Sagamore much gold [pointing out that the putative class numbered more than 30,000 and that the suit sought injunctive relief requiring statutory minimal coverage of several thousand dollars for each of the class, a theoretical 1.5 billion worth of policy-limit coverage].

The Oracle thought much upon their offerings.

In its wisdom, the Oracle did see that Sagamore protested too loudly over the cost of the acts commanded [policy limits did not provide the correct measure of amount in controversy for the injunctive relief, because it was not feasible that all policyholders would have policy-limits claims in the future]. But the Oracle saw also that Sagamore still had some right of complaint [the injunctive relief would certainly cost Sagamore some amount of money in the future due to the extra coverage, above and beyond the expressly limited damages]. However, the Oracle wisely judged that neither “Toller” nor Sagamore brought worthy offerings [neither party offered competent evidence].

The Oracle did hold its judgment and ask new offerings of “Toller” and Sagamore [asked the parties to produce “summary judgment”-type evidence].

So ended Act One.

ACT TWO: In which the Oracle favors Sagamore, and “Toller” falls on her sword rather than do battle in foreign lands.

“Toller” and Sagamore did come again before the Oracle, bearing new offerings that they hoped would be more pleasing [evidence]. The Oracle once again sat in judgment. (Editors’ Note: See the CAFA Law Blog  analysis of Toller II, posted on July 22, 2008).

The Oracle carefully considered Sagamore’s renewed contention that “Toller” sought much gold for herself [more than $75,000 individual damages] and the offering of proof, and saw that Sagamore’s contention was false. Though “Toller” did seek some gold, yet she did not seek so much as to be worthy of the Oracle’s notice [the evidence revealed that the individual damages would not exceed $41,000, and there was no reasonable possibility of an attorney’s fee award for the individual claims that would bring the total individual recovery to $75,000]. The Oracle did reject this offering of Sagamore.

O, but “Toller’s” claims for her people! [the class damages] How heavy would be the burden on Sagamore of “Toller’s” requested commands! [the injunctive relief] The Oracle saw that, though the burden to Sagamore itself might not be so heavy as to bring the battle to foreign lands [the expected cost to Sagamore of the additional coverage required by the injunction would be substantial, but would not reach $5,000,000, assuming historical claims-payout rates on similar policies and the exact size of the class], yet were “Toller’s” people to purchase such justice and such commands from others, the burden would be so heavy, that the Oracle must take notice! [the market rate for premiums for the total amount coverage required by the injunction would be in excess of $10,000,000, so the CAFA amount in controversy was met by that standard of valuation] 

Yea, and even though “Toller” had vowed not to take too much gold for her people [limited the class claim for damages to no more than $4,999,999], yet the commands she asked were too burdensome to ignore [the expected value of the requested injunctive relief was more than the jurisdictional requirement of $5,000,000 because of the value of the coverage when considered in terms of the market rate for premiums for that coverage].

Therefore the Oracle did pronounce that the battle would take place in the foreign lands, in the Oracle’s Arena [the federal court had jurisdiction under CAFA, so the motion to remand was denied and the case would stay in federal court].

“Toller” did shake with fear and shame–she would not do battle in foreign lands, under the eye of the Oracle! No, she cast herself immediately upon her sword rather than fight in the foreign Arena [filed a motion for dismissal of the action without prejudice, pursuant to Rule 41(a)(2)].

The Oracle graciously allowed her spirit to depart and cross over the river Styx [the motion to dismiss was granted].

ACT THREE: In which “Gwendolyn Toller” returns from across the Styx, “Toller” casts aside her disguise and reveals her true form to be that of “Latonya Harris,” and Harris sways the Oracle with her renewed entreaty.

And lo, a new Heroine of the People [class representative] did arise, and did issue new challenge to Sagamore! And her challenge was the same as “Toller’s” had been and yet different also! 

“Latonya Harris,” the new Heroine did call herself, and Harris once more claimed gold from Sagamore for her people. 

As had “Toller,” Harris took the solemn vow to take only so much gold, and no more [again expressly limited the class claims to $4,999,999], but Harris forsook the request for a command that Sagamore should not trespass against the law of her home country [did not seek injunctive relief].

Yet crafty Sagamore did once again pray to the gods of the foreign lands, and that prayer was again heard [removed the new suit to federal court]. The Oracle would decide the matter once again [new removal, new motion to remand].

However, when Harris did come before the Oracle in the Arena, the Oracle saw through to the truth of her spirit, and the Oracle perceived that here was “Toller” come again, returned from across the Styx [the court expressly noted that the Harris lawsuit was “round two of an effort to pursue a class action against Sagamore, with the same allegations and same plaintiff’s lawyers”].

The Oracle therefore gazed upon Harris, and considered her new offering. The Oracle saw that Harris had forsaken her request that Sagamore comply with the law of her home country, which acts the Oracle had known to be too heavy to ignore [the court noted that the request for injunctive relief, which had led to a finding of CAFA jurisdiction in Toller II, had been dropped].

Crafty Harris! By falling on her sword and feigning death in the guise of “Toller,” Harris had stripped from her challenge that which the Oracle could not ignore [the plaintiff’s lawyers running the suit got a do-over on tailoring their allegations to avoid federal court]

And now, returning, her challenge did not stir the Oracle to bring her challenge into the Arena! [removing the request for injunctive relief eliminated the previously-determined basis for CAFA jurisdiction]

The Oracle looked upon Harris, once called “Toller,” and looked upon Sagamore, and the Oracle did sigh loudly. 

The Oracle perceived that, though Harris had limited the gold she sought for herself and her people, yet crafty Harris might try to enlarge her challenge when she returned to her home country, and so obtain much gold after all! 

Therefore, the Oracle did issue a doom upon Harris that she not increase her demands once she returned to her home country, and the Oracle did proclaim faith in the gods Harris’s home country that such trickery would not be rewarded. [“We note the potential availability of judicial estoppel arguments by the defendants should the plaintiffs in the future change legal positions in an attempt to achieve an award in excess of $5 million. . . . [T]his Court is convinced that the Supreme Court of Arkansas would not permit a plaintiff to recover damages for the class as a whole in excess of $4,999,999. . . . The plaintiff has made her choice, and the plaintiffs in state court who choose not to opt out of the class must live with it.”]

Having laid such a doom upon Harris, the Oracle did find that Harris’s challenge did not belong in the Arena [no CAFA jurisdiction]

Therefore the Oracle bid Harris and Sagamore depart the Oracle’s Arena, back to Harris’ home country, to do further battle over her challenge [the action was remanded to state court].

And Harris did depart the Arena gladly, with shouts of joy, and proclamations of the justice that she would win from the gods of her home country! 

But Sagamore did depart the Arena but reluctantly, and with bowed head, for Sagamore had greatly desired the joy of battle in the Arena, and Sagamore did not hold the gods of Harris’s home country in esteem.

And each, as they departed, unsheathed their swords for the battle that would take place in Harris’s home country . . .

So ends Act Three, and with it, our epic.

–Lucky Day