BRAHAMSHA v. SUPERCELL OY
OPINION. Signed by Judge Freda L. Wolfson on 7/17/2017. (seb)
**NOT FOR PUBLICATION**
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALAN BRAHAMSHA, individually and
on behalf of all others similarly situated,
Civ. No. 16-8440
SUPERCELL OY, a Finnish limited
This matter comes before the Court upon the motion (ECF No. 16) of Defendant
Supercell OY (“Defendant”) to dismiss the Complaint of Plaintiff Alan Brahamsha (“Plaintiff”)
for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), and, in the alternative, for lack of
subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), on the ground that Plaintiff lacks
Article III standing; and upon the motion of Plaintiff to remand this matter back to the Superior
Court of New Jersey and award attorney’s fees, pursuant to 28 U.S.C. § 1447(c) (ECF No. 29).
Each motion is opposed (ECF Nos. 35, 36, respectively). The substance of Plaintiff’s motion to
remand is coextensive with its opposition to Defendant’s motion to dismiss under Rule 12(b)(1),
namely that were the Court to find, as Defendant argues, that Plaintiff lacks Article III standing
to sue and that the Court therefore lacks subject matter jurisdiction over the Complaint, the
appropriate remedy is remand to the state court, not dismissal. The Court issues the following
opinion based upon the written submissions of the parties, without oral argument, pursuant to
Fed. R. Civ. P. 78(b). For the reasons stated herein, the Court, fulfilling its independent
obligation to examine its own jurisdiction including the jurisdictional element of standing, finds
(i) that Plaintiff lacks Article III standing to bring his claims before this Court, (ii) that this Court
therefore lacks subject matter jurisdiction over the Complaint, and (iii) that this matter must
therefore be remanded to the Superior Court of New Jersey. Consistent with these findings,
Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) is denied as moot, its motion under
Fed. R. Civ. P. 12(b)(6) is denied without prejudice, and Plaintiff’s cross motion to remand is
denied as moot. Further, the Court denies Plaintiff’s motion for attorney’s fees.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
This matter pertains to a contract for the use of a mobile game, which Plaintiff alleges
violates the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”).
Plaintiff’s relevant allegations are as follows: Plaintiff purchased a mobile game from Defendant.
In order to use the game, Plaintiff had to agree to Defendant’s Terms of Service, which were
presented in a take-it-or-leave-it format. The Terms of Service purport to bind consumers to
“irrevocably waive all rights to seek injunctive or other equitable relief.” (Compl. at 7, ECF No.
1). Furthermore, the Terms of Service state:
Supercell shall not be liable to you for any indirect, incidental, consequential,
special, punitive or other similar damages . . . arising out of or relating in any way
to these terms of service or the service itself, whether based on contract, tort or
other legal theory . . . . Supercell shall not be liable to you for more than the
amount you have paid to Supercell . . . in the six (6) months immediately
preceding the date on which you first assert a claim. . . . [I]f you have not paid
anything . . . during such time period, your sole remedy (and Supercell’s
exclusive liability) for any dispute with Supercell is to stop using the service and
to cancel your account.
(Id. at 8). The Terms of Service state that some of their disclaimers and limitations may not
apply in some jurisdictions. They do not specify which terms do or do not apply in any
particular jurisdiction, including the State of New Jersey. (Id. at 9).
Plaintiff brought this matter as a class action in the Superior Court of New Jersey,
Monmouth County, seeking damages under the TCCWNA. (ECF No. 1-1); N.J.S.A. § 56:12-17
(where there is a violation of the TCCWNA, the statute provides “for a civil penalty of not less
than $100.00 or for actual damages, or both at the election of the consumer, together with
reasonable attorney’s fees and court costs.”). Defendant removed the case to this Court on
November 11, 2016, invoking the Court’s diversity jurisdiction under the Class Action Fairness
Act (“CAFA”). (ECF No. 1). On December 2, 2016, Defendant moved to dismiss this action for
failure to state a claim (Fed. R. Civ. P. 12(b)(6)) and, in the alternative, for lack of subject matter
jurisdiction (Fed. R. Civ. P. 12(b)(1)) on the ground that Plaintiff lacks Article III standing to sue
in federal court. (ECF No. 16). Plaintiff opposed Defendant’s motion, and, on December 15,
2016, moved to remand and for an award of attorney’s fees under 28 U.S.C. § 1447(c). (ECF
No. 29). These motions are presently before the Court.
In his motion to remand, Plaintiff does not advance separate, affirmative arguments
compelling remand to the state court. Plaintiff does not, for example, concede that the Court
lacks subject matter jurisdiction due to Plaintiff’s lack of standing. Instead, he incorporates his
arguments raised in opposition to Defendant’s motion to dismiss under Rule 12(b)(1) and asserts
that, given Defendant’s position that Plaintiff lacks Article III standing, such that this Court has
no subject matter jurisdiction over the case, Defendant lacked a reasonable basis to remove the
case to federal court in the first instance. Plaintiff argues that were the Court to agree with
Defendant that it lacks subject matter jurisdiction, § 1447(c) would require remand to the state
court rather than dismissal. Accordingly, the outcome of Plaintiff’s “motion” to remand is
determined by the Court’s standing analysis on Defendant’s motion to dismiss under Rule
12(b)(1). The Court will thus consider the parties’ arguments in both sets of briefing concerning
that analysis. Moreover, the Court would be required to evaluate Plaintiff’s Article III standing to
sue even if the parties had failed to raise it in their motions because “[t]he federal courts are
under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the
most important of [the jurisdictional] doctrines.’” United States v. Hays, 515 U.S. 737, 742
(1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230–231 (1990)) (alterations in original).
I therefore consider the parties’ motions in tandem, focusing on the essential inquiry of Article
STANDARD OF REVIEW
A civil action brought in state court may be removed by 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 (i.e., the aggregated claims of the individual class members) exceeds the sum or
value of $5,000,000, exclusive of interest and costs, (2) any member of a class of plaintiffs is a
citizen of a state different from any defendant, and (3) the class has at least 100 members. 28
U.S.C. § 1332(d)(2)(A), (d)(5)(B), (d)(6); Standard Fire Ins. Co. v. Knowles, ___ U.S. ____, 133
S. Ct. 1345, 1348 (2013); Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358 (3d Cir. 2015).
“A party asserting federal jurisdiction in a removal case bears the burden of showing 'that the
case is properly before the federal court.”' Judon v. Travelers Prop. Cas. Co. of Am., 773 F.3d
495, 500 (3d Cir. 2014) (quoting Frederico v. Home Depot, 507 F.3d 188, 193 (3rd Cir. 2007));
see also Morgan v. Gay, 471 F.3d 469, 473 (3rd Cir. 2006), cert. denied, 552 U.S. 940 (2007). If
at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case must be remanded to state court. 28 U.S.C. § 1447(c). Any doubts must be
resolved in favor of remand. Samuel-Bassett, 357 F.3d at 403.
“[A] defendant's notice of removal need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating
Co., LLC v. Owens, ___U.S.____, 135 S. Ct. 547, 554 (2014). “Thus, the grounds for removal
should be made in ‘a short plain statement,’ just as required of pleadings under Fed. R. Civ. P.
8(a).” Grace v. T.G.I. Fridays, Inc., No. 14-7233, 2015 U.S. Dist. LEXIS 97408, at *8-9, 2015
WL 4523639 (D.N.J. July 27, 2015) (citing Dart Cherokee, 135 S. Ct. at 553). No evidentiary
support is required, and the Court should accept a defendant's allegations unless they are
contested by the plaintiff or questioned by the Court. See Dart Cherokee, 135 S. Ct. at 553.
When the sufficiency of the jurisdictional allegations in a notice of removal is challenged, the
parties must submit proofs for the court to decide, by a preponderance of the evidence, whether
the jurisdictional requirements are satisfied. See id. at 554.
A. Article III Standing
Defendants allege that this Court has jurisdiction pursuant to the CAFA. (ECF No. 1,
Notice of Removal). However, in its motion to dismiss, Defendant argued, inter alia, that
Plaintiff had not suffered an actual injury or harm and therefore lacked Article III standing to
bring his claim; where Plaintiff lacks standing, the Court lacks subject matter jurisdiction and the
matter must be dismissed for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (ECF No.
16, at 12–15). In his motion to remand, Plaintiff argues that Defendant undercuts its basis for
removal by making this standing-jurisdiction argument; because the removing party bears the
burden of establishing jurisdiction, the matter therefore should be remanded. (ECF No. 29, Mot.
to Remand). Plaintiff does not address whether this Court has jurisdiction pursuant to the
“[S]tanding is a question of subject matter jurisdiction.” Petroleos Mexicanos
Refinancion v. M/T KING, A (Ex-Tbilisi), 377 F.3d 329, 224 (3d Cir. 2004). Article III of the
Constitution limits the judicial power of federal courts to “cases or controversies” between
parties. Lance v. Coffman, 549 U.S. 437, 439 (2007); U.S. CONST. art. III, § 2. “Standing to
sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). “The standing inquiry . . . focuse[s] on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.”
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 360 (3d Cir. 2014) (quoting Davis v. FEC,
554 U.S. 724, 734 (2008)) (alterations original). Because standing is a “threshold jurisdictional
requirement,” this Court has an obligation independent of the parties’ motions to ensure that it is
present before the matter may proceed in federal court. Interfaith Cmty. Org. v. Honeywell Int'l,
Inc., 399 F.3d 248, 254 (3d Cir. 2005) (quotation omitted). To satisfy Article III’s standing
requirements, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, as revised (May 24, 2016).
Where a plaintiff lacks Article III standing, the federal court lacks subject matter
jurisdiction and the matter must be remanded to state court. Wheeler v. Travelers Ins. Co., 22
F.3d 534, 540 (3d Cir. 1994); Giordano v. Wachovia Securities, LLC, 2006 WL 2177036, at *5
(D.N.J. July 31, 2006); 28 U.S.C. § 1447(c). Remand is not a discretionary decision on the part
of the Court; it is mandatory under 28 U.S.C. § 1447(c) even if remanding the case to state court
may be futile. See Bromwell v. Michigan Mutual Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997).
In this case, Defendant argues in its motion to dismiss (ECF No. 16, at 12–15) and its
opposition to Plaintiff’s motion to remand (see ECF No. 36, at 4) that Plaintiff lacks Article III
standing because Plaintiff has not alleged an injury-in-fact, identifying in its Complaint only
alleged statutory violations by Defendant without any allegations concerning the harm suffered
as a result by Plaintiff and by the proposed class. The Court agrees.
To allege injury-in-fact, “a plaintiff must claim the invasion of a concrete and
particularized legally protected interest resulting in harm that is actual or imminent, not
conjectural or hypothetical.” Nickelodeon, 827 F.3d at 272 (quoting Finkelman, 810 F.3d at 193)
(internal quotations omitted). In the context of a statutory violation, allegations of a “bare
procedural violation [under the statute], divorced from any concrete [or substantive] harm”
cannot satisfy the injury-in-fact requirement. Spokeo, 136 S. Ct. at 1549 (citing Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation . . . is insufficient to create Article III
standing”)). Stated differently, not every “bare” violation of a right granted by a statute is
inherently injurious. Rather, such a violation must result in a “concrete” harm. That requirement
remains in circumstances where a statute “purports to authorize [a] person to sue to vindicate [a
statutory procedural] right.” Id.; Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“It is settled that
Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue
to a plaintiff who would not otherwise have standing”).
Applying Spokeo, Courts in this district have persuasively found that where a plaintiff
alleges violations of the TCCWNA but not actual, particular harm to him or herself, the plaintiff
lacks Article III standing. Rubin v. J. Crew Grp., Inc., 2017 WL 1170854, at *5 (D.N.J. Mar. 29,
2017); Hecht v. Hertz Corp., 2016 WL 6139911, at *7 (D.N.J. Oct. 20, 2016), appeal dismissed
sub nom. DAVID HECHT v. HERTZ CORP (Nov. 22, 2016). In Rubin, for example, the plaintiff
alleged that the defendant’s Terms of Service violated the TCCWNA by shielding defendant
from liability to which is was mandatorily subjected by New Jersey law, thereby denying rights,
responsibilities, and remedies under the New Jersey Punitive Damages Act, the New Jersey
Consumer Fraud Act, TCCWNA, and other statutes, and failing to clarify whether limitations of
liability apply in New Jersey or not. Rubin, 2017 WL 1170854, at *6. This Court found,
[Plaintiff had not alleged] any underlying injuries that Plaintiff has suffered as a
result of purchasing Defendant’s merchandise or using the J Crew Website.
Plaintiff merely alleges that she has made purchases from the Website. In fact,
Plaintiff does not even aver that she viewed or relied on the Terms and Conditions
that are alleged to be violative of the TCCWNA. . . . Therefore, there is no
indication that Plaintiff had a claim against Defendant which the Terms and
Conditions prevented her from bringing.
Id. “[W]ithout an underlying concrete harm, a plaintiff may not base his/her complaint solely on
allegations of wrongdoing predicated on TCCWNA violations.” Id. at *5.
Similarly, in Hecht, the plaintiff complained that the defendant’s website neglected to
identify whether New Jersey is one of the jurisdictions where an exception applies to the
website’s general provision that price, rate and availability of products or services are subject to
change without notice. Hecht v. Hertz Corp., 2016 WL 6139911, at *4. Relying on Spokeo, the
court found that the plaintiff failed to allege any concrete harm sufficient to meet Article III
standing. Rather, among other reasons, the court explained that the plaintiff’s purported injuries
were merely bare statutory violations, because he did not allege whether any of the website’s
provisions were in fact unenforceable or invalid in New Jersey. Id. at *7. The court stressed that
“there can be no concrete harm resulting from a situation where a [p]laintiff did not know
whether the provisions were ‘void, unenforceable or inapplicable to reservations made by New
Jersey citizens,’ but these provisions ultimately were enforceable, i.e., [p]laintiff was able to
access the full panoply of benefits offered.” Id.
In this case, Plaintiff alleges that Defendant’s Terms of Service “improperly (i) limit the
legal rights of consumers to seek redress (e.g., for intentional or reckless harms) in violation of
Section 15… and (ii) state in a general, non-particularized fashion that its terms are void,
inapplicable, or unenforceable in some jurisdictions without specifying their applicability in New
Jersey in violation of Section 16…” (ECF No. 35, at 7). Plaintiff argues, “Defendant’s Terms of
Service include provisions that violate the clearly established legal rights Plaintiff and the
members of the Class, including the right to seek redress for intentional harms. Defendant’s
Terms of Service also abdicate its own clearly established legal responsibilities as a seller,
including its responsibility to specify how its disclaimers, which it claims are inapplicable in
some jurisdictions, specifically apply in New Jersey.” (Compl. ¶ 54, ECF No. 1-1). Plaintiff has
not alleged any concrete or particular harm that he has suffered as a result of these purported
“violations” of the TCCWNA. (Id.; see also Compl. ¶¶ 25–35, ECF No. 1-1).
Specifically, the Complaint alleges that New Jersey consumers were harmed by being left
“without meaningful guidance as to their specific rights under [Defendants’] Terms of Service
agreement and applicable law.” Id. at ¶ 34. As to Plaintiff in particular, the Complaint alleges
that Plaintiff registered for Defendant’s game product subject to the Terms of Service and made
in-game purchases subject to the Terms of Service, which contained the allegedly unlawful
provisions. Id. at ¶¶ 38-41. There are no allegations that Plaintiff ever relied to his detriment on
Defendant’s Terms of Service, or that he was unlawfully prevented from pursuing an action
against Defendants by the Terms of Service. Moreover, although Plaintiff alleges that he was
required to click a button signifying his agreement to the Terms of Service, id. at ¶ 38, the
Complaint fails to allege that Plaintiff actually viewed or read the Terms of Service containing
the allegedly unlawful provisions. Accordingly, mere allegations of violations of the TCCWNA
in Defendant’s Terms of Service are insufficient to support Article III standing in the absence of
some injury to Plaintiff as a result of those violations. Rubin, 2017 WL 1170854, at *5; Hecht,
2016 WL 6139911, at *7.
Therefore, the Court lacks subject matter jurisdiction over this case, and it is remanded to
the Superior Court of New Jersey for further proceedings. Bromwell, 115 F.3d at 213–14 (“Once
the district court determined that it lacked subject-matter jurisdiction over the . . . claim, the
district court was obligated to remand the matter to the state court under the express language of
B. Plaintiff’s Motion for Attorney’s Fees and Costs
Plaintiff argues that he should be awarded attorney’s fees and costs related to the removal
of his case and the subsequent motions to dismiss and remand because Defendant removed this
case from state court by invoking the Court’s federal subject matter jurisdiction and then filed a
motion seeking dismissal on the basis that this Court lacked subject matter jurisdiction. Plaintiff
contends that Defendant’s removal and subsequent motion are inconsistent and indicate that
Defendant lacked a reasonable basis for removal in the first instance.
Section 1447(c) states that “[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C.A. § 1447(c). Whether to award costs and attorney fees is “left to the court’s discretion, to
be exercised based on the nature of the removal and the nature of the remand.” Commentary to §
1447(c); see also Mints v. Educational Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996) (holding
that district courts have “broad discretion and may be flexible in determining whether to require
the payment of fees under section 1447(c)”). “[T]he standard for awarding fees should turn on
the reasonableness of the removal. 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.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Under this standard, an
award of fees is appropriate where the defendant’s removal petition, “if not frivolous, [is] at best
insubstantial.” Mints, 99 F.3d at 1261.
In this case, Defendant removed from state court on the basis of CAFA jurisdiction.
Defendant was required only to set forth the grounds for removal in a short, plain statement, just
as required of pleadings under Fed. R. Civ. P. 8(a). Dart Cherokee, 135 S. Ct. at 553. In its
Notice of Removal, Defendant set forth the jurisdictional basis under CAFA for this Court to
hear Plaintiff’s claims; asserting that the Complaint concerns a covered class action, a class
consisting of more than 100 members, complete diversity of the parties, and an amount in
controversy exceeding the $5,000,000 threshold. ECF No. 1, ¶¶ 10-13. Plaintiff does not contest
Defendant’s CAFA basis for removal, so the Court accepts Defendant’s allegations as true,
without the need for evidentiary support. See Dart Cherokee, 135 S. Ct. at 553. Accordingly,
looking to Defendant’s CAFA allegations, Defendant possessed an objectively reasonable basis
for removal of this case before this Court.
Instead of challenging Defendant’s basis under CAFA, Plaintiff, relying heavily on the
decision of the Northern District of Illinois in Mocek v. Allsaints USA Ltd., 220 F. Supp. 3d 910
(N.D. Ill. 2016), contends that because Defendant removed under CAFA, but then promptly
moved to dismiss under Fed. R. Civ. P. 12(b)(1) for Plaintiff’s failure to plead Article III
standing, post-Spokeo, thereby defeating federal subject matter jurisdiction, Defendant
necessarily lacked a reasonable basis for the original removal. In Mocek, the defendant removed
a class action brought under the Fair and Accurate Credit Transactions Act (“FACTA”), and then
promptly moved to dismiss the class action complaint for lack of Article III standing under
Spokeo. The plaintiff cross moved to remand. The district court, observing that the parties agreed
that the Court lacked federal subject matter jurisdiction, but merely disagreed as to whether this
was because Plaintiff lacked Article III standing, granted the plaintiff’s motion to remand and
denied the defendant’s motion to dismiss as moot. The district court granted plaintiff fees under
§ 1447(c), finding that defendant’s removal and immediate Rule 12(b)(1) motion unnecessarily
prolonged the proceedings and showed that the defendant lacked an objectively reasonable basis
for seeking removal. The district court held that “it should have been obvious to defendant, based
on well-settled law, that with no party asking for the merits of plaintiff's claim to be decided in
federal court, and both sides arguing against federal jurisdiction, the only possible outcome was
for the case to end up right back where it started: in state court.” Mocek v. Allsaints USA Ltd.,
220 F. Supp. 3d 910, 914–15 (N.D. Ill. 2016). The defendant in Mocek argued that due to the
“unsettled” nature of Article III standing in the context of class actions predicated on statutory
violations after Spokeo, id. at 913, removal and defendant’s prompt Rule 12(b)(1) motion could
only expedite proceedings, even in the event the case were remanded to state court, id. at 914.
The District of Illinois rejected this argument, finding that the uncertainty in the law could only
weigh in favor of remand and that the federal court’s role was not to offer opinions to expedite
issues in state court. I respectfully disagree with the district court’s analysis.
Firstly, the district court in Mocek did not focus on the appropriate threshold question of
whether Defendant possessed an objectively reasonable basis for the removal, instead looking to
whether the defendant should have anticipated that once removed under CAFA, subject matter
jurisdiction would subsequently be defeated by the lack of standing. Secondly, although, as
observed above, the courts in this district have recently held that remand is appropriate in
TCCWNA class action complaints similar to that brought by Plaintiff, the analysis of whether
Plaintiff has actually pleaded injury sufficient to meet the requirements of Article III is specific
to the factual allegations raised in each complaint. Additionally, the Third Circuit has not yet had
the opportunity to craft any controlling precedent governing this question. In these
circumstances, I do not find it to be incumbent upon Defendant, after having been hailed into
state court, to anticipate how this Court would rule on a Rule 12(b)(1) motion in a currently
developing area of law, post-Spokeo, which applies a complaint-specific factual analysis. If, for
example, this Court were to find that Plaintiff did plead actual injury, then the case would have
proceeded in federal court because Plaintiff has not contested this Court’s subject matter
jurisdiction under CAFA. Because Defendant could not ask the state court to render an advisory
opinion as to whether Plaintiff’s pleadings satisfied Article III, post-Spokeo, the only way for
Defendant to have its claims heard in the federal courts, as it is admittedly entitled to do under
CAFA, without conceding actual injury, was to act as it did and remove first and then move to
dismiss under Rule 12(b)(1). Accordingly, absent any controlling precedent rendering the basis
for Defendant’s removal “frivolous” or “insubstantial,” this Court finds that Defendant
articulated an objectively reasonable basis for removal under CAFA. See First Am. Title Ins.
Corp. v. JP Morgan Chase & Co., 384 F. App'x 64, 68 (3d Cir. 2010) (affirming an award of
attorney’s fees where defendant removed on two bases precluded by the “clearly established
Third Circuit law[,]” rendering the basis for removal “at best insubstantial.”). No “unusual
circumstances” otherwise warranting an award of attorneys’ fees are present here. Martin, 546
U.S. at 141.
C. Defendant’s Motion to Dismiss
In finding that Plaintiff lacks Article III standing to pursue his claim in federal court and,
therefore, that this Court lacks subject matter jurisdiction over this action, this Court need not
reach other issues raised Defendant’s motion to dismiss. See Bromwell, 115 F.3d at 213–14.
Furthermore, as noted above, it is well-established that “[l]ack of subject matter jurisdiction does
not extinguish a removed state court case; section 1447(c) only requires the district court to
remand it to state court.” Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745,
751 (3d Cir. 1993). Accordingly, Defendant’s motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) is denied as moot, and its motion under Rule 12(b)(6) is denied without prejudice.
D. Plaintiff’s Motion to Remand
Because the Court, in the fulfillment of its independent obligation to determine its subject
matter jurisdiction, and in its consideration of the arguments of the parties on Defendant’s
motion to dismiss under Rule 12(b)(1), has already determined that § 1447(c) compels remand in
this case, Plaintiff’s separate “motion” to remand, recapitulating his arguments in opposition to
Defendant’s motion, is denied as moot — the requested relief having already been granted.
For the foregoing reasons, the Court will remand this case to the Superior Court of New
Jersey, and deny Defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) as moot,
deny Defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) without prejudice, deny
Plaintiff’s motion to remand as moot, and deny Plaintiff’s motion for attorney’s fees. A
corresponding order will follow.
Date: July 17, 2017
/s/ Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
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