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LAUCHHEIMER v. GULF OIL

April 27, 1998

DAVID LAUCHHEIMER, Plaintiff,
v.
GULF OIL, a limited partnership, Defendant.



The opinion of the court was delivered by: CHESLER

OPINION

 CHESLER, MAGISTRATE JUDGE

 I. INTRODUCTION

 This matter comes before the Court on the motion of Plaintiff, David Lauchheimer, to remand the above captioned action to the New Jersey Superior Court, Law Division, Bergen County. Plaintiff's motion was referred to the undersigned by the Honorable John C. Lifland, U.S.D.J. Oral argument was heard on March 9, 1998. For the reasons set forth below, Plaintiff's motion will be granted.

 II. BACKGROUND

 Plaintiff filed this action on behalf of himself and all others similarly situated for monetary damages and injunctive relief allegedly arising from Defendant's culpable conduct under the New Jersey Consumer fraud Act (the "Act"). See Complaint P 1; N.J.S.A. 56:8-1 et seq. (West Supp. 1997). Plaintiff alleges that, in an effort to induce prospective customers to purchase Gulf Oil gasoline, Defendant launched an advertising campaign that encouraged customers to obtain a "Gulf MasterCard" (the "Card"). Complaint P 14. Through their various methods of advertising, Defendant promised consumers using the Card a four percent (4%) discount on the price of all gasoline products purchased. *fn1" Id. P 15. In response to this advertising campaign, Plaintiff obtained a Card and purchased gasoline and other related products from Defendant. Id. P 2.

 In his Complaint, Plaintiff alleges that Defendant misled both himself and other class members by misrepresenting the facts surrounding the Card's discount. Plaintiff claims that although a 4% discount is advertised, the holders of the Card do not actually receive a full 4% discount as advertised and expected. Id. P 16. Plaintiff's Complaint insists that consumers do not receive a "discount" on gasoline purchases but actually receive a "credit" for the future purchase of gasoline at a Gulf station. Id. P 17.

 Plaintiff's complaint continues, however, and alleges that even in months where a cardholder has a credit due, the credit may not be applied to the actual purchase of gasoline. Plaintiff contends that when computing the credit due to the cardholder for a subsequent month, any previous unused credit is first deducted from the cardholder's current balance. Accordingly, it is the cardholder's balance, not the amount purchased that the 4% is applied to.

 On August 5, 1997, Plaintiff filed this class action suit on behalf of himself and all other similarly situated New Jersey residents *fn2" in the New Jersey Superior Court, Law Division, Bergen County. See Kaufmann Aff. Ex. A. Plaintiff is seeking equitable relief pursuant to the Act in the form of an injunction restraining defendant from continuing the allegedly deceptive advertising practice. See complaint PP 20-24. Additionally, Plaintiff is seeking monetary damages in an amount equal to the difference between 4% of the gasoline purchases and the actual discount or credit provided. Id. PP 25-28. Finally, Plaintiff seeks treble damages as permitted under the Act and reasonable attorney's fees. *fn3"

 On September 19, 1997, Defendant filed a Notice of Removal, pursuant to 28 U.S.C. § 1441(a), with the Clerk of the Court. Defendant alleged that this court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and 28 U.S.C. § 1367(a). On October 24, 1997, Defendant filed its answer to the Complaint denying Plaintiff's allegations. Plaintiff thereafter filed its motion to remand this action on February 5, 1998.

 III. DISCUSSION

 Plaintiff argues that removal to federal court was improper because this Court lacks the necessary subject matter jurisdiction to adjudicate this action. Defendant, however, argues that there is federal subject matter jurisdiction because the parties are from different states and the amount-in-controversy, exclusive of interest and costs, is in excess of $ 75,000. Each argument will be discussed in turn.

 A. Removal and Remand

 Civil actions filed in a state court can generally be removed to a federal court in that state if the district courts of the United States have original jurisdiction *fn4" See 28 U.S.C. § 1441 (1992). The notice of removal of a civil action must be filed within thirty days after the defendant receives, through service or otherwise, a copy of the pleading that sets forth a removable claim. 28 U.S.C. § 1446(b). Once removed, however, a case may be remanded to the state court if the court determines that it lacks adequate federal subject matter jurisdiction or if the notice of removal was untimely. *fn5" See 28 U.S.C. § 1447(c) (1992); Brown v. Francis, 33 V.I. 385, 75 F.3d 860, 864 (3d Cir. 1996); Rosebud Holdings, LLC v. Burks, F. Supp. , , 1998 U.S. Dist. LEXIS 2634 (D.N.J. 1998), 1998 WL 97796, at *1; Independent Mach. Co. v. International Tray Pads & Packaging, Inc., 991 F. Supp. 687 (D.N.J. 1998), 1998 WL 35002, at *2.

 When faced with a motion to remand, the party who removed the action has the responsibility of establishing the propriety of removal. Battoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991); Steel Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1012 n.6 (3d Cir. 1987), cert. dismissed, 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988); Bishop v. General Motors Corp., 925 F. Supp. 294, 297 (D.N.J. 1996); Rosebud Holdings, F. Supp. at , 1998 WL 97796 at *1; Independent Mach., F. Supp. at , 1988 WL 35002 at *2 Removal is statutory right and, therefore, must be constructed in favor of the ...


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