reasonable reading of the value of the rights being litigated." Id.6
A reasonable reading of the value of Bishop's claim compels the conclusion that it is worth less than $ 50,000. Depending on the particular model, a 1992 Oldsmobile Cutlass Supreme has a (loan) value ranging from $ 7,075 to $ 12,200, according to the N.A.D.A. Official Used Car Guide, April 1996. We will assume that the value of the car has been reduced by $ 5,000 due to the cost of repairs and the diminution in value arising from public disclosure of the defect.
Tripling this figure under the Consumer Fraud Act, N.J.S.A. 56:8-19, provides a total award of only $ 15,000.
b. Attorneys' Fees and Punitive Damages
Defendant argues that the $ 35,000.01 difference can be made up by a combination of attorneys' fees and punitive damages. The Third Circuit has insisted that courts look critically at claims where punitive damages or attorneys' fees constitute the bulk of the amount in controversy. Spellman v. Meridian Bank, 1995 U.S. App. LEXIS 37149, 1995 WL 764548, at *9 (3d Cir. Dec. 29, 1995).
A trial judge has broad discretion with respect to setting both attorneys' fees and punitive damages. Cox v. Sears Roebuck & Co., 138 N.J. 2, 24, 647 A.2d 454 (1994) (remanding to trial judge to calculate appropriate and reasonable attorneys' fees); Security Alum. Wind. Mfg. Corp. v. Lehman Assoc. Inc., 108 N.J. Super. 137, 260 A.2d 248 (N.J. Super A.D. 1970) (punitive damages); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 2, at 14 (5th ed. 1984) ("it is always within the discretion of the jury or trial judge to withhold [punitive damages]"). No conceivable exercise of this discretion would result in punitive damages and attorneys' fees that would exceed the $ 35,000.01 required to meet the jurisdictional minimum.
With respect to attorneys' fees Judge Dalzell held, in a case with the same underlying facts, that attorneys' fees could not rise to the level required to meet the jurisdictional amount. Neff v. General Motors Corp., 163 F.R.D. 478 (E.D. Pa. 1995) (commended by the Third Circuit in Spellman v. Meridian Bank, F.3d , 1995 U.S. App. LEXIS 37149, 1995 WL 76548 at *10 (3d Cir. Dec. 29, 1995) for its "excellent discussion of the removal issue"). "To do so," explained Judge Dalzell, "would be to reward overlawyering of the case." Id. at 484. As Judge Dalzell sensibly remarked, "this is merely a case about allegedly defective automotive brakes, nothing more." Id.
In determining how to calculate the attorneys' fees attributable to Bishop, we must first consider whether to analyze such fees in terms of a class action or as an individual suit brought by plaintiff, in his own behalf. Judge Dalzell's analysis in Neff seems to have implicitly assumed the latter. Id. at 484. However, in Spellman, which was decided after Neff, the Third Circuit held that in calculating the amount in controversy in a putative class action "attorneys' fees must be distributed across the class or across the claimants." Id. at *9. Bishop is entitled only to his pro rata share of attorneys' fees as a class member, an insignificant number in a class numbering over 3,000,000.
The same reasoning may also be applied to the issue of punitive damages. Under the New Jersey Consumer Fraud Act an award of treble damages is mandatory if plaintiff proves both an unlawful practice under the Act and a resulting ascertainable loss. N.J.S.A. 56:8-19; Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994). Although the treble damages award already contains a substantial punitive component beyond the amount needed to compensate for actual harm, Neveroski v. Blair, 358 A.2d 473, 482, 141 N.J. Super. 365 (A.D. 1976), such an award may not bar plaintiff from receiving additional common law punitive damages. Wildstein v. Tru Motors, Inc., 227 N.J. Super. 331, 335, 547 A.2d 340 (L.D. 1988).
As with attorneys' fees, Bishop's claim for punitive damages may be valued either, (i) from the perspective of an individual plaintiff suing on his own behalf or (ii) based on Bishop's potential recovery as a class member. Although not expressed in so many words, GM would have us consider Bishop as an individual litigant. Under this approach, we would evaluate Bishop's claim independently and determine whether punitive damages could rise to $ 35,000.01 (or less, after deducting attorneys' fees) were he an individual plaintiff. GM's enormous net worth, a factor that must be considered by a New Jersey jury in awarding punitive damages,
the absence of a requirement that punitive damages be proportionate to compensatory damages,
and the probability that legal fees in the context of an individual suit would total many thousands of dollars, make the $ 50,000 threshold seem possible, if still highly improbable.
We hold, however, that the better approach is to allocate to Bishop for jurisdictional purposes only his individual share as a class member of a single punitive damage award. Bishop would be required to establish a pro rata share of punitive damages equal to $ 35,000.01. Assuming that Bishop's pro rata share of punitive damages is comparable to that of the other class members, the total punitive damages award in this case would have to be $ 105,000,030,000.00. (Three million multiplied by $ 35,000.01.) Notwithstanding GM's size, such an award would be patently absurd and legally unsustainable.
We have chosen to value Bishop's punitive damages on a pro rata basis. Although Bishop might have gained a larger award by proceeding independently, as he would be entitled to keep any punitive damages award for himself, he has chosen for other reasons to proceed as a class representative. Therefore, the "reasonable value" of his award is what he would receive if he prevailed in the present litigation. Because the present litigation is in fact a putative class action,
any award that Bishop might receive would necessarily have to be divided among the three million class members.
Spellman's reasoning with respect to attorneys' fees is also instructive. Judge Roth held that "attorneys' fees must be distributed across the class" rather than being credited entirely to the jurisdictional account of the named plaintiff. Spellman, 1995 U.S. App. LEXIS 37149, 1995 WL 764548, at *9. (The Fifth Circuit reached the opposite conclusion in Abbott Laboratories, 51 F.3d at 526, which was cited but apparently rejected by the Spellman court.) Other than the Tapscott reasoning, which we have already rejected, we can see no reason why punitive damages should be treated differently from attorneys' fees in this respect.
The reasoning set forth in the Eleventh Circuit's recent decision in Tapscott presents the only new argument for jurisdiction over a case which is similar to those dispatched to state court by other judges in this Circuit.
As we explained earlier, however, we are not convinced that the reasoning of Tapscott with respect to treating punitive damages as "common and undivided" is sound, or that either the Third Circuit or the Supreme Court is likely to adopt it.
Moreover, we are reluctant to embrace a novel theory of jurisdiction absent clear guidance from the Third Circuit or the Supreme Court. To do so would be to risk infecting the case with reversible error that might taint it all the way to the Supreme Court. While GM might not find this prospect unappealing, it is distinctly distasteful to the plaintiffs and the Court. We have the utmost confidence that the New Jersey courts will provide GM with a fair hearing, the result of which will not be subject to challenge on jurisdictional grounds.
Defendant has requested that we certify any decision of remand to the Third Circuit pursuant to 28 U.S.C § 1292(b), which states that a district judge may, when faced with a controversial issue of law whose resolution will advance the litigation, certify an interlocutory appeal to "the Court of Appeals which would have jurisdiction of an appeal of such action." Under 28 U.S.C. § 1447(d), "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." The Third Circuit therefore does not have jurisdiction to hear an appeal, and we do not have the power to certify an interlocutory appeal. In re Bear River Drainage Dist., 267 F.2d 849 (10th Cir. 1959); see also Wright & Miller, 14A, Federal Practice and Procedure, § 3740 (2d ed. 1985).
We hold that Peter Bishop cannot meet the amount in controversy requirement for subject matter jurisdiction, and we decline to follow Tapscott's ill-founded argument that punitive damages may be treated as a "common and undivided interest." In accordance with Boyer's directive that "all doubts should be resolved in favor of remand," 913 F.2d at 111, we will therefore, pursuant to 28 U.S.C. § 1447(c), grant plaintiff's motion to remand to the Superior Court of New Jersey, Burlington County, Law Division.
JOSEPH E. IRENAS
Dated: April 29, 1996