GREENLEY v. TOMS RIVER KIA

Filing 15

OPINION. Signed by Judge Anne E. Thompson on 2/14/2017. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH P. GREENLEY, JR.,
Civ. No. 16-4454
Plaintiff,
OPINION
v.
TOMS RIVER KIA,
Defendant.
THOMPSON, U.S.D.J.
This matter comes before the Court upon the motion to dismiss for lack of subject matter
jurisdiction brought by Defendant Toms River Kia (“Defendant”). (ECF No. 10). Plaintiff
Joseph P. Greenley, Jr. (“Plaintiff”) opposes. (ECF No. 12). The Court has issued the Opinion
below based upon the written submissions of the parties and without oral argument pursuant to
Federal Rule of Civil Procedure 78(b). For the reasons stated herein, Defendant’s motion to
dismiss will be granted.
BACKGROUND
Plaintiff’s allegations are as follows: Plaintiff purchased a 2013 Kia Optima from
Defendant. During the course of that negotiation and sale, Defendant made affirmative
misrepresentations and material omissions about Defendant’s title to the vehicle, Defendant’s
ability to convey title to the vehicle, the collision history of the vehicle, and appropriate taxes
and fees related to the sale and registration of the vehicle. As a result, Plaintiff paid an inflated
price for the vehicle and did not have proper title to the vehicle for over a month.

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Plaintiff filed a Complaint alleging common law fraud and violation of the New Jersey
Consumer Fraud Act. Plaintiff alleged that he was induced to sign the contracts because of these
misrepresentations and that he could recover:
•
•
•
•
•

Actual and compensatory damages in the amount of the sale price of the vehicle;
Treble damages;
Punitive damages;
Attorney fees and costs; and
Such other and further relief as the Court shall deem just and proper.

(Compl. at 6–7, ECF No. 1).
Defendant moved to dismiss the case for failure to allege an amount in controversy in
excess of $75,000. This motion is presently before the Court.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a Defendant may move at any time to
dismiss the Complaint for lack of subject matter jurisdiction on either facial or factual grounds.
Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). In analyzing a facial challenge,
a court “must consider only the allegations of the complaint and documents attached thereto, in
the light most favorable to the plaintiff.” Id. (citing Mortensen, 549 F.2d at 891). In considering
a factual challenge, however, a court “may consider evidence outside of the pleadings.” Id.
(citing Mortensen, 549 F.2d at 891). Regardless of the type of challenge, the plaintiff bears the
“burden of proving that the court has subject matter jurisdiction.” Cottrell v. Heritages Dairy
Stores, Inc., 2010 WL 3908567, at *2 (D.N.J. Sep. 30, 2010) (citing Mortensen, 549 F.2d at
891).
Federal Rule of Civil Procedure 8(a) requires a plaintiff in a federal action to set forth a
“short and plain statement of the grounds upon which the court’s jurisdiction depends.” Fed. R.

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Civ. P. 8(a). There are two traditional bases for subject matter jurisdiction in federal court:
federal question jurisdiction and diversity jurisdiction. City of Newark v. Lawson, 346 F. App’x
761, 763 (3d Cir. 2009). Federal question jurisdiction applies to those civil actions “arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; U.S. Express
Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002). This type of jurisdiction exists only if a
federal question is presented on the face of the complaint. Club Comanche, Inc. v. Gov’t of V.I .,
278 F.3d 250, 259 (3d Cir. 2002) (citation omitted). Diversity jurisdiction applies to “civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interests and costs, and is between— (1) citizens of different States...” U.S.C. § 1332(a). Under
the generally applicable rule requiring “complete diversity,” no plaintiff may be a citizen of the
same state as any defendant. Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 148 (3d Cir. 2009)
(citing 28 U.S.C. § 1332(a)(1) and Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806)); see also
Pierro v. Kugel, 386 F. App’x 308, 309 (3d Cir. 2010) (stating that diversity jurisdiction requires
that “every plaintiff be diverse from each defendant”). In reviewing a motion to dismiss for lack
of subject matter jurisdiction, the sum claimed by the plaintiff controls if the claim is apparently
made in good faith unless it appears to a legal certainty that the claim is truly for less than the
jurisdictional amount. Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir. 1997).
ANALYSIS
Defendant brings a facial challenge that Plaintiff failed to allege an amount in
controversy in excess of $75,000. (Def.’s Br., ECF No. 10-5).
In his Complaint, Plaintiff alleges two claims: common law fraud and violations of the
New Jersey Consumer Fraud Act (CFA). For CFA claims, a plaintiff may be compensated for
actual damages, may receive treble damages if the plaintiff demonstrates ascertainable loss from

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an unlawful practice under the CFA, and may be awarded attorneys’ fees and costs. N.J.S.A.
56:8–19; see also 50 N.J. Prac., Business L. Deskbook § 18:18 (2016-2017 ed.). The defendant
may also be subject to civil penalties up to $10,000 for a first violation and up to $20,000 for
subsequent offenses. Id. Treble damages include the actual damages; they are not in addition to
actual damages. Treble damages are a type of punitive damages.
For a common law fraud claim, punitive damages may be available if the Defendant
acted in a way that was malicious, wantonly reckless, “evil-minded,” vindictive, or showed a
“wholly wanton disregard for the rights of others.” Walter v. Holiday Inns, Inc., 784 F. Supp.
1159, 1180–81 (D.N.J. 1992).
In his Complaint, Plaintiff claims:
•
•
•
•
•

Actual and compensatory damages in the amount of the sale price of the vehicle;
Treble damages;
Punitive damages;
Attorney fees and costs; and
Such other and further relief as the Court shall deem just and proper.

(Compl. at 6–7, ECF No. 1). However, the facts presented in the Complaint do not allege that he
actually lost the entire cost of the vehicle. Rather, he alleges that he suffered the diminished
value of the vehicle because it had been in an undisclosed collision ($6,537) and the loss of use
of the vehicle from June 6 to July 8, 2016. (See Compl. ¶ 14–16, ECF No. 1; Pl.’s Opp’n, ECF
No. 12). Therefore, Plaintiff could obtain treble damages in the amount of $19,611 for the
diminished value of the vehicle. That amount includes the actual damages. Plaintiff does not
present an estimate of the cost of the loss of use of the vehicle for one month. Therefore, he has
not alleged an ascertainable loss for this amount, which would qualify for treble damages.
Plaintiff has not alleged malice or vindictiveness that could qualify for additional punitive
damages pursuant to the common law fraud claim. Thus, Plaintiff has only alleged $19,611 in

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possible damages, plus attorneys’ fees. Reasonable attorney’s fees in a case such as this, with an
alleged $6,537 in actual damages, cannot be assumed to amount to $55,389.01. Therefore,
Plaintiff has not alleged an amount in controversy exceeding $75,000.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss will be granted and the
Complaint dismissed. A corresponding order will follow.

Date: 2/14/17

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

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