HOFFMAN v. NUTRACEUTICAL CORPORATION

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS DENYING 4 Remand to State Court filed by HAROLD M. HOFFMAN, 20 Report and Recommendations. Signed by Magistrate Judge Patty Shwartz on 3/8/13. (gmd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
ESTHER SALAS
UNITED STATES DISTRICT JUDGE

MARTIN LUTHER KING
COURTHOUSE
50 WALNUT ST.
ROOM 5076
NEWARK, NJ 07101
973-297-4887

March 8, 2013
LETTER ORDER

Re:

Hoffman v. Nutraceutical Corp.
Civil Action No. 12-5803 (ES)

Dear Counsel:
Pending before this Court is Plaintiff Harold M. Hoffman’s Motion To Remand this
action to the Superior Court of New Jersey, Law Division, Bergen County. (D.E. No. 4). On
January 24, 2013, Magistrate Judge Steven C. Mannion issued a Report & Recommendation
suggesting that this Court deny the Motion. (D.E. No. 20, (the “R&R”)). Magistrate Judge
Mannion advised the parties that they had fourteen days to file and serve any objections to the
R&R pursuant to Local Civil Rule 72.1(c)(2). (Id. at 3). Plaintiff filed a timely objection on
January 27, 2013. (D.E. No. 21, Pl.’s Objection to Report & Recommendation of Magistrate
Judge Mannion (“Pl. Obj.”)). On February 11, 2013, Defendant Nutraceutical Corporation filed
a response to Plaintiff’s objection. (D.E. No. 22, Def.’s Resp. to Pl.’s Obj. (“Def.’s Resp.”)).
Judge Mannion provided a thorough factual background in his R&R, and this Court need
not repeat it. (R&R 2-3).
Plaintiff’s only objection to the R&R is that there are no class claims in this litigation to
aggregate to meet the Class Action Fairness Act’s (“CAFA”) jurisdictional threshold minimum
of $5 million. (Pl. Obj. 2). Plaintiff sets forth the exact same argument that was considered and
dismissed by Magistrate Judge Mannion. The Court disagrees with Plaintiff and finds Judge
Mannion’s analysis sound and well-reasoned.
In his objection, Plaintiff contends that this action is not certifiable as a class action
because Plaintiff is pro se and, thus, cannot serve a dual role as class counsel and class
representative. (Id.). This obstacle, according to Plaintiff, makes class certification a “legal
impossibility,” which prevents aggregation of class claims. (Id.). As a result, Plaintiff can only
recover for his personal damages, totaling “[$]60, at best,” as opposed to damages for all class

members. 1 (Id. at 3). Because the damages do not reach CAFA’s monetary threshold of $5
million, Plaintiff contends that this Court is without subject matter jurisdiction, and that the case
must be remanded to state court. (Id.).
The Court is not persuaded by Plaintiff’s arguments. Plaintiff bears the burden of
showing with a legal certainty that “the plaintiff cannot recover the jurisdictional amount.”
Frederico v. Home Depot, 507 F.3d 188, 197 (3d Cir. 2007) (emphasis in original). Therefore, it
was Plaintiff’s burden to demonstrate that the amount in controversy could not exceed the
jurisdictional threshold of $5 million. Plaintiff failed to show that the class was not certifiable
and that the class claims could not be aggregated. The Court is not persuaded by Plaintiff’s
argument that his dual role as class representative and class counsel would prevent class
certification. Further, there is no legal authority to support the proposition that a party’s dual
role in a matter should negate federal jurisdiction under CAFA. The Court agrees with Judge
Mannion’s reasoning that the obstacle of Plaintiff’s dual capacity could be remedied by adding
new counsel or substituting Plaintiff with new counsel to represent the class. The Court is not
“foisting” new counsel, as Plaintiff contends, but merely suggesting that it is a possibility.
Additionally, Plaintiff’s own Complaint alleges that: “[P]laintiff brings this suit as a class
action and in [sic] behalf of others similarly situated . . . [t]he proposed Class consists of all
nationwide purchasers of [Defendant’s product] for the six years period preceding the filing of
this suit.” (D.E. No. 1, Pl.’s Compl. ¶ 26). Further, Plaintiff alleges that “[t]his action has been
brought and may properly be maintained as a class action pursuant to New Jersey Rule 4:32.”
(Id. ¶ 27). The class of plaintiffs is, in fact, so large, that “joinder of all members is
impracticable.” (Id.). The class comprises of “thousands of consumers throughout the United
States.” (Id.).
Significantly, Plaintiff initially contemplated the instant matter as a class action.
Therefore, it is puzzling that Plaintiff now argues that class certification presents a “legal
impossibility.” (Pl. Obj. 2). The Court also notes that Plaintiff has not yet filed a motion for
class certification. Plaintiff, in effect, asks this Court to make a determination of impossibility of
class certification, 2 but the Court is unable to do so at this time. Moreover, the Court cannot give
merit to Plaintiff’s statement that both Defendant and Judge Mannion agreed that the class
certification was impossible. (Id.). Defendant, in fact, argued that class certification was
possible. (D.E. No. 19, Def.’s Ltr. Br. in Opp. to Pl.’s Mot. to Remand). Likewise, Judge
Mannion was clear in his R&R that Plaintiff could remedy the obstacle of class representation by
obtaining new counsel. (R&R 12).
1

This controversy involves a product with a market value of approximately $20. (Pl. Obj. at 1). Plaintiff’s treble
damages bring the amount of controversy up to $60. (Id.).
2
Plaintiff argues that the Court can decide if the class is non-certifiable at this moment, citing Clark v. McDonald’s
Corp., 213 F.R.D. 198, 205 n.3 (D.N.J. 2003) (stating that “[a] defendant may move to strike class action
allegations prior to discovery in those rare cases where the complaint itself demonstrates that the requirements for
maintaining a class action cannot be met.”) (emphasis added). However, that dictum is not relevant to the present
case because it is Plaintiff, rather than Defendant, that moves to strike class action allegations. Even if the dictum
were applicable, Clark is still distinguishable because Plaintiff’s Complaint contemplates the matter as a class
action.
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In sum, Plaintiff failed to bear his burden of demonstrating that the class could not be
certified. Here, class certification is not “legally impossible.” Rather, it is possible, and the very
direction contemplated by Plaintiff in the Complaint. (See D.E. No. 1, Pl.’s Compl. ¶ 26, 27).
At best, Plaintiff’s failure to pursue the matter as a class action could be attributed to Plaintiff’s
exercise of his own discretion, rather than to legal impossibility. Class members could
potentially recover damages in excess of $5 million. 3 Thus, the Court has jurisdiction over this
case under CAFA.
The Court has considered Plaintiff’s objection, as well as Magistrate Judge Mannion’s
R&R, and for the reasons stated therein,
IT IS on this 8th day of March 2013,
ORDERED that the R&R of Magistrate Judge Mannion is adopted as the conclusions of
law of this Court; and it is further
ORDERED that Plaintiff’s motion to remand is DENIED.

SO ORDERED.
s/Esther Salas
Esther Salas, U.S.D.J.

3

The Court adopts Judge Mannion’s computation of damages and finds them sound. (See R&R 9-10).
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