SACCHI v. ABC FINANCIAL SERVICES, INC. et al

Filing 10

OPINION filed. Signed by Judge Freda L. Wolfson on 8/18/2014. (mmh)

**NOT FOR PUBLICATION**

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
JOHN SACCHI,
:
:
Plaintiff,
:
:
v.
:
:
ABC FINANCIAL SERVICES, INC., et al., :
:
Defendants.
:
____________________________________:

Civ. No. 14-1196 (FLW)

OPINION

WOLFSON, United States District Judge:
Defendants ABC Financial Services, Inc. (“ABC Financial”), Paul W. Schaller, James A.
Bottin, and Robert Whisnant (collectively, “Individual Defendants”) (together with ABC
Financial, “Defendants”) removed Plaintiff John Sacchi’s (“Plaintiff”) state court Complaint to
this Court, and now move to dismiss all claims against them. In opposition, Plaintiff contends that
this Court lacks subject matter jurisdiction over the lawsuit, and seeks remand to state court. For
the reasons set forth below, this Court finds that subject matter jurisdiction does not exist, and
remands Plaintiff’s Complaint to state court.
I.

BACKGROUND
This matter arises out of a membership agreement between Plaintiff, a New Jersey resident

and senior citizen, 1 and Retro Fitness of West Long Branch (“Health Club”), a health and fitness
club located in Monmouth County, New Jersey. Compl. ¶¶ 1, 16. On June 4, 2009, Plaintiff

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As defined by the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2.2 et seq.
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executed a membership agreement with the Health Club to enroll as a monthly dues member under
the Health Club’s automatic renewal program.

Id. at ¶¶ 16-20; see also Def. Br., Ex. B

(Membership Agreement). Under the terms of the agreement, Plaintiff’s membership would
automatically renew each month; however, the membership (i.e. the automatic renewals) could be
terminated at any time by Plaintiff providing 60-days written notice of cancellation to the Health
Club’s billing company, ABC Financial. Compl. ¶¶ 17-18, 20. Furthermore, the agreement
authorized ABC Financial to make recurring monthly charges to Plaintiff’s credit card in the
amount of $19.99 for his monthly membership dues, to be processed on the third day of each
month. Id. at ¶¶ 17-18.
On May 16, 2013, Plaintiff provided written notice of cancellation to ABC Financial. Id.
at ¶ 21. Although the terms of the contract dictate that Plaintiff’s membership terminated on July
15, 2014, ABC Financial processed charges on July 3 for a full month’s dues, effectively billing
Plaintiff for membership dues through August 2, 2013. Id. at ¶¶ 22-25. Subsequently, Plaintiff
filed the instant Complaint in the Superior Court of New Jersey, Monmouth County, Law Division,
asserting, on behalf of “himself and all persons similarly situated,” claims against Defendants
based on the allegation that he was charged membership dues in violation of the terms of his
agreement. Id. at ¶¶ 20-26; see also Def. Br., 1. Plaintiff’s Complaint alleges five related causes
of action: (1) conversion, (2) fraud, (3) breach of contract, (4) breach of contractual duty to thirdparty beneficiary, and (5) violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2.2 et
seq. (“NJCFA”). Compl., 7-11.

Shortly thereafter, on February 24, 2014, Defendants timely

removed the Complaint to the United States District Court for the District of New Jersey on the
basis of diversity of citizenship pursuant to 28 U.S.C § 1332(a)(1). Defendants then filed (i) a
motion to dismiss all counts pursuant to Fed. R. Civ. P. 12(b)(2) & (6), and (ii) a motion for

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sanctions pursuant to Fed. R. Civ. P. 11. Plaintiff opposes both motions solely on the basis that
this Court lacks subject matter jurisdiction over the Complaint, arguing that, as a putative class
action, the jurisdictional requirements of the Class Action Fairness Act (“CAFA”), see 28 U.S.C.
§ 1332(d)(2), must be met, and that Defendants have failed to make such a showing with respect
to Plaintiff’s Complaint.
II.

STANDARD OF REVIEW
A civil action brought in state court may be removed by the defendant or the defendants,

to a federal district court if the district court has original jurisdiction over the claim. 28 U.S.C. §
1441(a); see also Samuel-Bassett v. Kia Motors Am., 357 F.3d 392, 398 (3rd Cir. 2004). Federal
district courts have original jurisdiction on the basis of diversity of citizenship where, (1) the matter
in controversy exceeds the sum or value of $75,000, and (2) there is diversity of citizenship
between each plaintiff and each defendant in the case. See, e.g., Kaufman v. Allstate N.J. Ins. Co.,
561 F.3d 144, 148 (3rd Cir. 2009) (citing 28 U.S.C. § 1332(a)(1)). Alternatively, pursuant to
CAFA, federal district courts have original jurisdiction over class actions where, (1) the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and (2) any
member of a class of plaintiffs is a citizen of a state different from any defendant. 28 U.S.C. §
1332(d)(2)(A). Under either § 1332(a)(1) or CAFA, “the party asserting federal jurisdiction in a
removal case bears the burden of showing, at all stages of the litigation, that the case is properly
before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3rd Cir. 2007) (citing
Samuel-Bassett, 357 F.3d at 396); Morgan v. Gay, 471 F.3d 469, 473 (3rd Cir. 2006). Any doubts
must be resolved in favor of remand. Samuel-Basset, 357 F.3d at 403.
Finally, where a plaintiff’s complaint does not expressly limit the amount in controversy
to an amount lower than the jurisdictional requirement, and where, as here, the jurisdictional

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dispute is based solely on the plaintiff’s complaint, the case must be remanded only if “from the
face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount
claimed.” Frederico, 507 F.3d at 194 (emphasis added) (quoting St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 289 (1938)).
III.

DISCUSSION
Defendants assert that removal is proper under § 1332(a)(1), alleging that the complete

diversity requirement is satisfied because Plaintiff is a citizen of the state of New Jersey and
Defendants are citizens of the state of Arkansas; this is not disputed. Def. Notice of Removal, ¶¶
26-27. Furthermore, Defendants contend that the amount in controversy “exceeds $75,000
according to a reasonable reading of the Plaintiff’s Complaint,” noting that Plaintiff seeks
compensatory, treble, and punitive damages, as well as attorneys’ fees. Id. at ¶ 28. In opposition,
Plaintiff does not address whether his individual claim exceeds $75,000, and instead asserts that
this court lacks subject matter jurisdiction over his claim because CAFA governs and restricts
diversity jurisdiction over putative class actions, such as Plaintiff’s, to those that seek more than
five million dollars in damages. Pl. Opp., 2. In light of this, Plaintiff contends that Defendants
failed to show that Plaintiff’s Complaint seeks more than five million dollars in in damages, and
thus have failed to show that jurisdiction exists over his Complaint. Furthermore, Plaintiff rejects
the applicability of § 1332(a), arguing that § 1332(a) uniquely applies to non-class action matters.
In response, Defendants argue that §1332(a) and CAFA provide alternative bases for establishing
subject matter jurisdiction over a putative class action. Def. Rep. Br., 2.
Plaintiff has not identified, and the Court has not found, any precedent in support of the
proposition that § 1332(a) is inapplicable to putative class action lawsuits, or that CAFA restricts
the federal judiciary’s subject matter jurisdiction of diversity-based putative class actions to those

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that seek more than five million dollars in damages. Pl. Opp., 2. To the contrary, the Supreme
Court has explained that Congress enacted CAFA in order to loosen the requirements for diversity
jurisdiction over certain class actions, noting that CAFA was passed in light of concerns that
“certain requirements of diversity jurisdiction . . . had functioned to keep cases of national
importance in state courts rather than federal courts.” Mississippi ex rel. Hood v. AU Optronics
Corp., 134 S.Ct. 736, 740 (2014). In that connection, Wright & Miller’s Federal Practice and
Procedure explicitly describes CAFA as expanding rather than diminishing the scope of diversity
jurisdiction. 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3728 (4th
ed.) (“Insofar as [CAFA] creates original jurisdiction over cases that previously were beyond
federal diversity subject-matter jurisdiction, the Act enlarges the universe of cases that may be
removed pursuant to 28 U.S.C.A. § 1441.” (Emphasis added.)).
Indeed, in Shah v. Hyatt Corp., 425 F. App’x 121 (3rd Cir. 2011), the Third Circuit
affirmed the District Court’s holding that a defendant properly established subject matter
jurisdiction over the plaintiff’s individual claims pursuant to § 1332(a)—even though the case
itself was a putative class action that did not meet CAFA’s jurisdictional requirements—and thus
implicitly rejected the same argument Plaintiff here makes. Id. at 121, 124-25. Put differently,
Shah demonstrates that a putative class action may be removed as to the named plaintiff if
§ 1332(a) is satisfied, regardless of whether CAFA’s requirements are also satisfied.
In light of the forgoing authority, I conclude that CAFA does not limit the scope of
traditional diversity jurisdiction pursuant to § 1332(a), but rather relaxes the complete diversity
rule in in the context of certain class actions. 2 Thus, contrary to Plaintiff’s arguments, it is evident
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For these reasons, Plaintiff’s reliance on Erie Ins. Exch. v. Erie Indem., 722 F.3d 154, 158
(3rd Cir. 2013), is misplaced. The principle dispute in Erie was whether the case constituted a
“class action” under CAFA. Erie 722 F.3d at 158; see also 28 U.S.C. § 1332(d)(1)(B) (defining
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that § 1332(a) and CAFA constitute separate bases for removal of class action matters. Because
Defendants removed this case on the basis of diversity jurisdiction pursuant to § 1332(a), the
proper inquiry is whether Defendants established that the requirements of complete diversity and
an amount-in-controversy exceeding $75,000 are satisfied.
To that end, although Plaintiff has not contested Defendants’ assertion that the
requirements of complete diversity and amount-in-controversy exceeding $75,000 are satisfied,
the Court has an independent obligation to determine whether it has subject matter jurisdiction.
Kaufman, 561 F.3d at 151 (citing Samuel-Bassett, 357 F.3d at 395); see also Golden ex rel. Golden
v. Golden, 382 F.3d 348, 354 (3rd Cir. 2004) (“The federal courts themselves, of course, have a
continuing obligation to investigate their jurisdiction over the matters before them.”). I evaluate
jurisdiction by reviewing the allegations in the Complaint and notice of removal. Kaufman, 561
F.3d at 151; Frederico, 507 F.3d at 197 (“[T]o determine whether the minimum jurisdictional
amount has been met in a diversity case removed to district court, a defendant’s notice of removal
serves the same function as the complaint would if filed in the district court.”).
Regarding diversity of citizenship, Defendants assert that complete diversity exists as
Plaintiff is a citizen of the State of New Jersey and all Defendants are citizens of the State of
Arkansas. Notice of Removal ¶ 27. These allegations are consistent with Plaintiff’s Complaint,
and Plaintiff did not object to or offer evidence to dispute these allegations. Thus, based on the
assertions of both parties, complete diversity exists. Therefore, the inquiry now turns to the
principle issue of whether the amount in controversy exceeds the $75,000 threshold required by §
1332(a).

the term “class action” within the scope of CAFA). Erie makes no mention of § 1332(a), let alone
the notion that CAFA supersedes § 1332(a) as the sole basis for diversity jurisdiction over class
actions.
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Plaintiff’s Complaint does not expressly limit his claims to an amount less than $75,000,
and the parties do not dispute the relevant facts; thus, the “legal certainty” test must be applied,
meaning that the amount in controversy is satisfied unless the court is convinced to a legal certainty
that Plaintiff’s claims could not exceed $75,000. Frederico, 507 F.3d at 197. Although not
quantified, Plaintiff’s Complaint seeks relief in the form of: (1) compensatory damages; (2) treble
and other statutory damages as permitted under the NJCFA; (3) punitive damages; (4) attorneys’
fees and costs; and (5) any other relief deemed just and proper by the court. I now consider these
requested damages to determine whether it appears to a legal certainty that Plaintiff could not
recover more than $75,000.
In the present case, Plaintiff alleges that he suffered approximately $10 in actual damages,
while also seeking treble damages and statutory penalties pursuant to Defendants’ alleged
violations of the NJCFA. A private party may state a claim under the NJCFA if he or she can
demonstrate an ascertainable loss caused by a defendants’ violation of the statute. N.J.S.A. 56:819; Thiedmann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005). Because Plaintiff has
alleged an ascertainable loss of about $10, the statute further requires courts to award plaintiffs
threefold the actual damages resulting from a violation, which in this case, would increase
Plaintiff’s potential award to approximately $30. N.J.S.A. 56:8-19.
Plaintiff also avers in his NJCFA claim that ABC Financial is liable for enhanced damages
under the statute’s “additional penalties” provision for violations causing injuries to senior citizens
and/or disabled persons, such as Plaintiff. See N.J.S.A. 56:8-14.3. While this provision provides
for civil penalties of up to $30,000 to punish defendants for certain unlawful conduct directed
towards senior citizens and/or disabled persons, these penalties are not available under a private
causes of action but may only be sought by the Attorney General. See Weinberg v. Sprint Corp.,

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173 N.J. 233, 247-50. 3 Plaintiff, as a private individual, is limited to the treble damages provided
by N.J.S.A. 56:8-19. Therefore, with regard to compensatory and statutory damages, Plaintiff’s
claims total, at most, approximately $30.
I turn next to Plaintiff’s request for punitive damages, attorneys’ fees, and related costs.
Claims for punitive damages may be aggregated with claims for compensatory damages in
determining whether the requisite amount in controversy is satisfied only where they are available
as a matter of state substantive law. Golden, 382 F.3d at 355. Similarly, potential attorneys’ fees
must also be considered in calculating the amount in controversy where they are provided for by
state statute. Suber v. Chrysler Corp., 104 F.3d 578, 585 (3rd Cir. 1997). Where, as here, punitive
damages and attorneys’ fees would need to represent the bulk of any possible recovery to satisfy
the amount in controversy requirement, I subject those claims to particularly close scrutiny. See
Packard v. Provident Nat. Bank, 994 F.2d 1039, 1046 (3rd Cir. 1993); Penn v. Wal-Mart Stores,
Inc., 116 F.Supp.2d 557, 569.
Under New Jersey law, punitive damages are governed by the Punitive Damages Act, N.J.
Stat. Ann. § 2A:15-5.09, et. seq. (“NJPDA”), which provides that:
[t]o recover punitive damages, the plaintiff must demonstrate by clear and
convincing evidence that the harm suffered was the result of defendant’s acts or
omissions, and such acts or omissions were actuated by actual malice or
accompanied by a wanton and willful disregard of persons who foreseeably might
be harmed by those acts or omissions. This burden of proof may not be satisfied by
proof of any degree of negligence including gross negligence.

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The New Jersey Supreme Court has explained that the damages and penalties available to
private individuals are limited to those provided in N.J.S.A. 56:8-19. Weinberg v. Sprint Corp.,
173 N.J. 233, 250 (N.J. 2002). Thus, the enhanced penalties pursuant to N.J.S.A. 56:8-14.3 may
only be sought by the Attorney General, and are unavailable in private claims. See N.J.S.A. 56:83.1 (stating that the Attorney General is granted authority to hold hearings on alleged violations,
and assess penalties to the extent of his statutory authority).
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Vibra-Tech Engineers, Inc. v. Kavalek, 849 F. Supp. 2d 462, 500 (D.N.J. 2012) (citing Pavlova v.
Mint Mgmt. Corp., 375 N.J. Super. 405 (App. Div. 2005)). Actual malice is defined as “an
intentional wrongdoing in the sense of an evil-minded act;” wanton and willful disregard is defined
as “a deliberate act or omission with knowledge of a high degree of probability of harm to another
and reckless indifference to the consequences of such act or omission.” N.J. Stat. Ann. § 2A:155.09.
As pled in the Complaint, Plaintiff could not recover punitive damages under New Jersey
law for any of his claims. First, with respect to Plaintiff’s contract claims, where the essence of a
cause of action is limited to a breach of a commercial contract, and absent exceptional
circumstances concerning a special relationship between the parties, punitive damages are
inappropriate regardless of the conduct constituting the breach. Sandler v. Lawn-A-Mat Chemical
& Equipment Corp., 141 N.J. Super 437, 449 (App. Div. 1976). It is clear that Plaintiff’s claims
arise from a boilerplate membership agreement executed between himself and the Health Club.
Moreover, absent from Plaintiff’s Complaint are any allegations showing a special relationship
between Plaintiff and the other parties. Accordingly, Plaintiff would be unable to recover punitive
damages in connection with his claims for breach of contract, or for breach of contractual duty to
a third-party beneficiary.
Turning to Plaintiff’s common-law tort claims for fraud and conversion, although such
causes of action may, under different circumstances, support punitive damages under New Jersey
law, here, Plaintiff fails to allege the requisite intent and culpability necessary to justify such an
award. An award of punitive damages requires “a showing of culpability in excess of that needed
to state the bare bones elements of the underlying tort.” Lo Bosco v. Kure Engineering Ltd., 891
F. Supp. 1020, 1034 (D.N.J. 1995) (citing W. Page Keeton, et al., Prosser and Keaton on Torts §

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2 at 9 (5th ed. 1984)); see also id. (“Fraud, standing alone, without some additional aggravating
element, will not sustain a claim for punitive damages.” (Citing Jugan v. Friedman, 275 N.J.
Super. 566, 572 (App. Div. 1994).)). Indeed, as noted above, punitive damages are available under
New Jersey law in conversion and fraud claims only if the plaintiff demonstrates that the defendant
acted with the level of culpability required by the NJPDA. Onyiuke v. Cheap Tickets, Inc., No.
09-CV-891, 2009 WL 5218064 at *3 (D.N.J. Dec. 31 2009) (citations omitted). However, the
Complaint merely sets forth a barebones claim of fraud, without any additional element, such as
malice. Similarly, with respect to his conversion claim, Plaintiff merely alleges that ABC
Financial acted “deliberately, knowingly, and wrongfully,” and pleads no facts showing or
supporting a plausible inference that ABC Financials may have engaged in type of conduct that
constitutes an “evil-minded act” or “knowledge of a high probability of harm.” Because Plaintiff
fails to allege malice or wanton recklessness with respect to either of his common law tort claims,
Plaintiff cannot recover punitive damages. See Gruber v. Xactis Corp., Civ. No. L-8044-07, 2013
WL 4746529, at *4 (App. Div. Sept. 5, 2013) (“‘To be subject to liability for punitive damages, a
defendant’s conduct must be willfully and wantonly reckless or malicious.’” (Quoting Gennari v.
Weichert Co. Realtors, 148 N.J. 582, 610-11 (1997).)).
For the same reasons, Plaintiff would be unable to obtain punitive damages for his NJCFA
claim. Under the NJCFA, “like the common law causes of action discussed above, to support an
award of punitive damages, a plaintiff must establish that the defendant’s unlawful conduct rises
to the level of culpability required by the NJPDA.” Boyes v. Greenwich Boat Works, Inc., 27 F.
Supp. 2d 543, 549 (D.N.J. 1998). Although Plaintiff’s Complaint avers that ABC Financial made
deliberate false representations in the cancellation provision of the Membership Agreement,
Plaintiff fails to provide any facts showing, or giving rise to the inference, that Defendants acted

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with “actual malice” or “wanton or reckless disregard.” Therefore, since Plaintiff has not
adequately pled a basis to recover punitive damages from Defendants on any of his claims, he
instead is limited to the aforementioned compensatory and statutory damages totaling
approximately $30.
Because I find to a legal certainty that Plaintiff may not recover punitive damages on his
claims as pled, the requisite amount in controversy may only be satisfied if potential attorneys’
fees and costs, aggregated with $30 of compensatory and statutory damages, would satisfy the
requisite $75,000 amount in controversy.

Under the NJCFA, a plaintiff who suffers “any

ascertainable loss of money” as a result of unlawful conduct under the act shall be awarded
threefold the actual damages sustained, as well as “reasonable attorneys’ fees, filing fees and
reasonable costs of suit.” N.J.S.A. § 56:8-19. Because Plaintiff alleges that he suffered a loss of
money due to Defendants’ violation of the NJCFA, attorneys’ fees would be available to Plaintiff
under the statute, and must be considered in determining whether the amount in controversy
requirement is satisfied.

Nonetheless, even under the legal certainty test, “a claim for an

unspecified amount of attorneys’ fees does not necessarily satisfy the jurisdictional minimum.”
Zanger v. Bank of America, N.A., Civ. No. 10-CV-2480, 2010 WL 3910142 at *4 (D.N.J. Oct. 1,
2010); see Frederico, 507 F.3d at 199. Indeed, to satisfy the jurisdictional minimum, this Court
would have to award a preposterously high amount of attorneys’ fees and costs in connection with
a nominal amount of compensatory damages of $30—which is inconsistent with the purpose of
the amount in controversy requirement. See Packard, 994 F.2d at 1044-45 (explaining that amount
in controversy requirement “must be narrowly construed so as to not frustrate” congressional intent
to “keep the diversity caseload of the federal courts under some medium of control”). Moreover,
courts have routinely rejected the argument that a plaintiff could meet the amount in controversy

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by relying primarily on the award of of attorneys’ fees, rather than compensatory damages. E.g.,
Lauchheimer v. Gulf Oil, 6 F. Supp. 2d 339, 346 (D.N.J. 1998) (holding that amount in controversy
could not be satisfied by potentially excessive award of attorneys’ fees where plaintiff, if
successful, would receive very small compensatory damages); Flail v. Travelers Companies, Civ.
No. 98-CV-1254, 1998 WL 709296 at *3 (E.D. Pa. Oct. 6, 1998) (finding to a legal certainty that
amount in controversy could not exceed $75,000 by aggregating potential attorneys’ fees where
compensatory damages could not exceed $5,000); Cohen v. Gerber Products Co., Civ. No. 96CV-3071, 1996 WL 593720 at *5 (E.D. Pa. Oct. 21, 1996) (finding to a legal certainty that amount
in controversy could not exceed $50,000 where plaintiff could recover up to $4,000 in
compensatory damages, and amount in controversy could only be satisfied by awarding at up to
$46,000 in attorneys’ fees). I am therefore satisfied, to a legal certainty, that even taking into
consideration an award of attorneys’ fees, Plaintiff could not recover more than $75,000.
In sum, because I find to a legal certainty that Plaintiff’s claims cannot exceed $75,000,
Defendants have failed to carry their burden of establishing that the instant lawsuit satisfies the
requisite amount in controversy for this Court to have subject matter jurisdiction under 28 U.S.C.
1332(a). Lacking such jurisdiction, I must remand the instant lawsuit to state court.
Lastly, I note that, in connection with the request to remand, Plaintiff asserts that he is
entitled to attorneys’ fees and related costs pursuant to 28 U.S.C. § 1447(c). I deny Plaintiff’s
request, finding that Defendants’ removal of the Complaint was reasonable, based on a reading of
the Complaint and the lenient standard applicable to determining whether Plaintiff’s claims
satisfied the requisite amount in controversy; therefore, an award fees and costs is not warranted
under the the circumstances of this case. Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005) (“[T]he standard for awarding fees should turn on the reasonableness of the removal.

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Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should be denied.”). I also note that Defendants filed a
motion for sanctions pursuant to Fed. R. Civ. P. 11, based on their contention that Plaintiff’s claims
against Defendants are wholly frivolous. Because this Court lacks subject matter jurisdiction over
Plaintiff’s Complaint, and because I do not reach the issue of whether Plaintiff has any viable
claims against Defendants, Defendant’s Rule 11 motion for sanctions is denied as moot.
CONCLUSION
For the foregoing reasons, this Court determines that subject matter over Plaintiff’s
Complaint is lacking, and accordingly remands this action to state court. Plaintiff’s request for an
award for attorneys’ fees and costs is denied, as is Defendants’ motion for Rule 11 sanctions.
An Order will be entered consistent with this Opinion.

Date: August 18, 2014

/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

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