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LAUCHHEIMER v. GULF OIL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


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 non-removing party. Id. Any doubts about the existence of federal jurisdiction must be resolved in favor of remand. Battoff, 977 F.2d at 851; Boyer, 913 F.2d at 111; Bishop, 925 F. Supp. at 297.

 B. Federal Jurisdiction

 Jurisdiction in this matter is predicated upon diversity of citizenship. See Notice of Removal PP 5-12. Federal jurisdiction based on diversity of citizenship has two requirements. First, no plaintiff in the action can be a citizen of the same state as any of the defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978). Second, the "amount in controversy," exclusive of interest and costs, must exceed $ 75,000. 28 U.S.C. § 1332 (Supp. 1998); Independent Mach., F. Supp. at , 1998 WL 35002 at *2. There is no question that the parties in this case are diverse. *fn6" Therefore, this court's inquiry into the satisfaction of 28 U.S.C. § 1332 is based solely on the amount in controversy.

 1. Amount in Controversy Generally

 The party who invokes the jurisdiction of the federal courts carries the burden of demonstrating that court's jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995). Courts will generally accept a party's good faith allegation of the amount in controversy, but if it is challenged by either the opposing party or the court, the party seeking the assistance of the federal court must provide sufficient evidence to justify its claims. Id.

 Generally, the amount claimed in the plaintiff's complaint is controlling and is deemed to be the entire amount in controversy. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S. Ct. 586, 589-90, 82 L. Ed. 845 (1938). Specifically, when federal subject matter jurisdiction is based on diversity of citizenship, the amount in controversy must be determined from an examination of the complaint at the time it was filed. Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573, 6 L. Ed. 2d 890 (1960). This is not true, however, if upon the face of the pleadings or other proof submitted, it "appears to a legal certainty that the claim is really for less." St. Paul Mercury Indem. Co., 303 U.S. at 288-89, 58 S. Ct. at 589-90, 82 L. Ed. at 845. It is then up to the plaintiff to refute the implication that jurisdiction is lacking. Gibbs v. Buck, 307 U.S. 66, 59 S. Ct. 725, 83 L. Ed. 1111 (1939); Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971); Independent Mach., F. Supp. at , 1998 WL 35002 at *3; Associated Bus. Tel. Sys. Corp. v. Danihels, 829 F. Supp. 707, 709-10 (D.N.J. 1993).

 Where a case has been removed, however, the amount in controversy is generally gleaned from the plaintiff's complaint. Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993); Independent Mach., F. Supp. at , 1998 WL 35002 at *3; see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095-97 (11th Cir. 1994) (recognizing that federal removal jurisdiction is determined by the amount of damages a plaintiff seeks); Wilson v. Belin, 20 F.3d 644, 651 n.8 (5th Cir.) (noting that the amount in controversy was determined by the plaintiff's pleadings and papers), cert. denied, 513 U.S. 930, 115 S. Ct. 322, 130 L. Ed. 2d 282 (1994); Marcel v. Pool, 5 F.3d 81, 84 (5th Cir. 1993) (same); Shaw v. Dow Brands, 994 F.2d 364, 366 (7th Cir. 1993) ("the amount in controversy [is determined] by merely looking at plaintiff's state court complaint"). The possibility that the plaintiff may "ask for or recover more after removal is not sufficient to support jurisdiction." Burns, 31 F.3d at 1097 n.13; Asociacion Nacional de Pescadores v. Dow Quimica, 988 F.2d 559, 564-65 (5th Cir.), reh'g denied, 5 F.3d 530 (5th Cir. 1993), cert. denied sub nom. Dow Chemical Co. v. Asociacion Nacional de Pescadores, 510 U.S. 1041, 114 S. Ct. 685, 126 L. Ed. 2d 653 (1994); Opelika Nursing Home v. Richardson, 448 F.2d 658, 664 (5th Cir. 1971). If the complaint is ambiguous as to the damages asserted, the court may consider subsequent documentation. Angus, 989 F.2d at 145. The plaintiff's complaint, however, is generally still controlling. Id.; Independent Mach., F. Supp. at , 1998 WL 35002 at *3.

 Meeting the amount in controversy in a class action suit is somewhat different. First, plaintiffs cannot aggregate their individual claims in order to meet the jurisdiction dollar amount in controversy. Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S. Ct. 505, 512, 38 L. Ed. 2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 338, 22 L. Ed. 2d 319, 89 S. Ct. 1053, 1057, reh'g denied, 394 U.S. 1025, 89 S. Ct. 1622, 23 L. Ed. 2d 50 (1969); In re Corestates Trust Fee Litigation, 39 F.3d 61, 64 (3d Cir. 1994). Accordingly at least one class member is required to meet the federal jurisdictional amount. *fn7" Zahn, 414 U.S. at 301, 94 S. Ct. at 512; Snyder, 394 U.S. at 338, 89 S. Ct. at 1057; In re Corestates, 39 F.3d at 64.

 2. Defendant's Computation of the Amount in Controversy

 Defendant concedes that there is no realistic possibility that either the named Plaintiff or any class member could receive more than a few dollars in compensatory damages. Nevertheless, Defendant argues that the amount in controversy exceeds $ 75,000 under three different computations. First, Defendant asserts that attributing the total amount of the class attorney's fees to every member of the class will fulfill the jurisdictional amount requirement. Second, Defendant argues that attributing the total amount of the potential punitive damages to every member of the class will satisfy the requirement. Finally, Defendant contends that attributing attorneys fees awarded pursuant to the Act to the named plaintiff and extending supplemental jurisdiction to the claims of class members who failed to satisfy the jurisdictional amount satisfies the amount in controversy requirement. Plaintiff disagrees with each of Defendant's arguments and contends that the jurisdictional minimum is not satisfied. Each of Defendant's arguments will be discussed in turn.

 a. Total Attorney's Fees Attributed to Each Class Member

 Defendant makes the argument that attorney's fees should be considered a unitary amount in controversy above the jurisdictional minimum provided for in 28 U.S.C. § 1332. In support of this argument, Defendant cites to a recent Northern District of Florida case in which the court held that a claim for attorney's fees in a class action suit should be considered in aggregate to determine the amount in controversy. Howard v. Globe Life Ins. Co., 973 F. Supp. 1412, 1419-21 (N.D. Fla. 1996).

 In Howard, the plaintiffs brought a class action suit that alleged violations of certain Florida statutes prohibiting sales of credit life insurance in amounts greater than those necessary to pay off the balance of certain loans. Id. at 1414. The defendants removed the action to federal court based on diversity of citizenship jurisdiction. Id. The plaintiffs filed a motion to remand the case to state court based on the contention that the amount in controversy requirement was not satisfied. Id. The defendants argued that the amount in controversy was satisfied by, inter alia, the plaintiffs' potential attorney's fee award called for by the Florida statute at issue. Id. The court, persuaded by the plaintiffs' argument regarding attorney's fees, held that in these types of class actions attorney's fees should be considered in the aggregate and not distributed pro rata. Id. at 1420.

 Although Howard supports Defendant's argument that the amount in controversy requirement has been satisfied in the case at bar, this Court finds its reasoning unpersuasive. In fact, this Court agrees with the line of cases holding that attorney's fees cannot be aggregated when determining the amount in controversy in a class action. See, e.g., Bishop v. General Motors Corp., 925 F. Supp. 294, 299 (D.N.J. 1996); Neff v. General Motors Corp., 163 F.R.D. 478 (E.D. Pa. 1995); see also Michael A. Baldassare, Pandora's Box or Treasure Chest?: Circuit Courts Face 28 U.S.C. § 1367's Effect on Multi-Plaintiff Diversity Actions, 27 SETON HALL L. REV. 1497, 1534 (1997) (discussing the dichotomy in federal court decisions with regards to the aggregation of attorney's fees when calculating the amount in controversy). In Bishop, for example, the court was faced with a class action suit filed by a car owner seeking damages due to economic harm allegedly caused by the defendant manufacturer's failure to disclose a brake defect. Bishop, 925 F. Supp. at 297. In determining that attorney's fees may not be aggregated to meet the jurisdictional minimum, the Bishop court expressly stated that fees are to be distributed pro rata "across the class or across the claimants." Id. at 300. *fn8"

 Likewise, the Neff court dealt with a lawsuit brought by vehicle owners against the automobile manufacturer for economic loss resulting from allegedly defective brakes. Neff, 163 F.R.D. at 479-80. The parties in that case agreed that the named plaintiffs suffered actual damages of, at the most, $ 3,700. Id. at 483-84. The court noted that even if it chose to treble the damages pursuant to the applicable statute, the defendant could only justify jurisdiction by claiming that each plaintiff was entitled to approximately $ 40,000 in attorney's fees *fn9" Id. at 484. The court stated that "it is hard to conceive how a $ 10,000 claim, already statutorily trebled, could support a reasonable attorney's fee of $ 40,000." Id. In concluding that attorney's fees are to be apportioned pro rata, the court noted that it "would never award in attorney fees an amount that is over thirteen times the amount of actual damages or four times the amount of statutorily (and hypothetically) trebled damages." Id. According to the Neff court, "to do so would be to reward overlawyering of the case." Id.

 The Court finds both of these cases to be persuasive in their analysis. First, adopting this rule is appropriate because it is consistent with the policy of constructing removal statutes narrowly. 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); Bishop, 925 F. Supp. at 297. Second, the case at bar is very similar to Neff, where the court refused to allow the amount in controversy to be satisfied by a potentially excessive award of fees. Likewise, the present case deals with a class of credit cardholders who, if successful, will receive very small compensatory damages even if trebled under the Act. Accordingly, the court would have to award in excess of $ 70,000 in fees to even come close to satisfying the jurisdictional minimum. This figure seems excessive for a case where the damages are so small.

 Finally, this court will not aggregate a small amount of attorney's fees that potentially would be awarded to each member of the class so that each member will satisfy the amount in controversy. The better approach is to allocate to each Plaintiff, for jurisdictional purposes only, his or her individual and pro rata share as a class member of the total attorney's fees. See Bishop, 925 F. Supp. at 301. Because the named Plaintiff brought this action on behalf of " many tens of thousands of [class] members," the total award of attorney's fees in this matter would have to exceed $ 700,000,000.00 ($ 70,000 multiplied by 10,000 class members) if it were to be used to satisfy the jurisdictional minimum. After considering the facts submitted by both parties, I can say to a certainty that attorney's fees in such an amount would never be awarded.

 b. Total Punitive Damages Attributed to Each Class Member

 Defendant next argues that the total amount of potential punitive damages should be attributed to each member of the class. By doing so, each and every class member will independently satisfy the jurisdictional requirement. In support of this contention, Defendant cites to Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996) and Allen v. R&H Oil & Gas Co., 63 F.3d 1326 (5th Cir.), reh'g denied, 70 F.3d 26 (5th Cir. 1995). Tapscott dealt with a lawsuit filed by a class of consumers who had purchased automobile service contracts from the defendant. The Eleventh Circuit focussed on the nature of punitive damages under Alabama law in order to reach its conclusions. 77 F.3d at 1359. In doing so, the court concluded that punitive damages sought due to alleged statutory violations in the sale of the automobile service contracts may be considered in the aggregate for jurisdictional purposes.Id.

 Allen was a case involving a class of plaintiffs who allegedly suffered damages as a result of an oil and gas well explosion. In its opinion in Allen, the Fifth Circuit stated that punitive damages are "undivided claims of right with a potentially separable award." Allen, 63 F.3d at 1334. In reaching its decision, the court, considered whether the issue in the case created one right of recovery in the plaintiffs and whether the defendant had any interest in the apportionment of an award among the plaintiffs. Id. at 1331. Accordingly, the court held that a punitive damage award under Mississippi law could be aggregated to satisfy the jurisdictional amount. Id. at 1334.

 While both Allen and Tapscott lend support to Defendant's argument that the amount in controversy requirement has been satisfied in the case at bar, this Court agrees with the line of cases which hold that punitive damages cannot be aggregated to satisfy the jurisdictional minimum. See Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1430 (2d Cir. 1997); Anthony v. Security Pac. Fin. Servs., Inc., 75 F.3d 311, 315 (7th Cir. 1996); Green v. H&R Block, Inc., 981 F. Supp. 951, 955 (D. Md. 1997); Amundson & Assoc. Art Studio, Ltd. v. National Council on Compensation Ins., Inc., 977 F. Supp. 1116, 1127 (D. Kan. 1997); Johnson v. Gerber Prod. Co., 949 F. Supp. 327, 329 (E.D. Pa. 1996); Haisch v. Allstate Ins. Co., 942 F. Supp. 1245, 1250 (D. Ariz. 1996); Bishop, 925 F. Supp. at 298. First, as in the attorney's fee context discussed above, adopting this rule is proper because it is consistent with the policy of construing removal statutes narrowly. Battoff, 977 F.2d at 851; Boyer, 913 F.2d at 111; Bishop, 925 F. Supp. at 297.

 Second, the holdings of both Snyder and Zahn proscribe the aggregation of punitive damages unless a prior determination has been made that the underlying claim asserts a single title or right. Gilman, 104 F.3d at 1430 (citing Zahn, 414 U.S. at 294, 94 S. Ct. at 508). Cases that deal with such indivisible res are those involving an estate, a piece of real property, or an insurance policy. Biship, 925 F. Supp. at 298. The case at bar does not involve any such common or undivided interest because each individual class member could have filed suit for compensatory and punitive damages without affecting the rights of any other class member. The putative class in the instant case did not use to enforce common and undivided interests. To putative class in the instant case did the potential award of punitive damages without establishing this prerequistte "'would eviscerate the holdings of Snyder and Zahn and would run counter to the strict construction of the amount-in-controversy requirement those cases mandate.'" Gilaman, 104 F.3d at 1431 (citing Visintine v. Saab Auto., A.B., 891 F. Supp. 496, 499 (E.D. Mo. 1995)); see also Weinberg v. Sprint Corp., 165 F.R.D. 431, 442 (D.N.J. 1996).

 Finally, it would be inconsistent for this Court to hold that aggregation of punitive damages is permitted to satisfy the amount in controversy requirement when the Third Circuit has previously held that attorney's fees may not be aggregated to meet the jurisdictional minimum. See Bishop, 925 F. Supp. at 299; see also supra note 6 and accompanying text. It is reasonable to construe the Third Circuit's case law as not being restricted to merely attorney's fees "but for the broader proposition that class members, whose 'claims fall short [of the amount in controversy requirement] cannot satisfy the requirement by aggregation of claims.'" Haisch, 942 F. Supp. at 1251 (quoting Goldberg v. CPC Int'l, Inc., 678 F.2d 1365, 1367 (9th Cir.), cert. denied, 459 U.S. 945, 103 S. Ct. 259, 74 L. Ed. 2d 202 (1982)). This Court believes that this reasoning is sound with respect to punitive damages and concludes that the aggregation of the class members' potential punitive damages claims for the purpose of establishing diversity of citizenship jurisdiction is not permitted. *fn10"

 Because the Plaintiffs' claims for punitive damages in this case are not a single right but have been brought together in this class action for convenience sake, the Court will not aggregate potential punitive damage award to each member of the class so that each member satisfies the jurisdictional minimum. As this Court stated in its discussion regarding attorney's fees, supra, the best approach is to allocate to each Plaintiff, for jurisdictional purposes only, his or her individual share as class member of a single punitive damage award. See Bishop, 925 F. Supp. at 301. Because the named Plaintiff brought this action on behalf of "many tens of thousand of [class] members," the total punitive damage award in this matter would have to surpass $ 700,000,000.00 ($ 70,000 multiplied by a minimum of 10,000 class members) if it were to be used to satisfy the amount in controversy. This Court is cetain that, despite the size of Gulf Oil, "such an award would be patently absurd and lgally unsustainable." Id. Accordingly, the punitive damage awards for all class members will not be aggregated to satisfy the amount in controversy requirement.

 c. Total Attorney's Fees Attributed to Named Plaintiff

 Defendant's third and final argument is that this Court should attribute the attorney's fees that would be awarded under the New Jersy Consumer Fraud Act *fn11" to the named Plaintiff and then extend supplemental jurisdiction, under 28 U.S.C. § 1367, *fn12" to the claims of class members who have failed to satisfy the jurisdictional amount in controversy. Defendant contends that once the named Plaintiff has been assigned the total amount of attorney's fees for the case, he will meeet the amount in controversy requirement, and there will be federal jurisdiction over the remainder of the class under § 1367(a). Defendant's argument fails in this instance primarily for the reasons outlined above.

 Under Defendant's theory, as long as the named Plaintiff satisfies the $ 75,000 amount in controversy requirement, federal supplemental jurisdiction would exist as to the remainder of the class members regardless of whether their claims met the jurisdictional minimum. *fn13" The Court has already established, however, that attorney's fees, whether granted pursuant to a federal or state statute, and punitive damages cannot be aggregated so as to satisfy the jurisdictional minimum. Bishop, 925 F. Supp. at 299. It is clear, however, that both attorney's fees and punitive damages may be added pro rata into calculating a named plaintiff's amount in controversy. See Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 202, 54 S. Ct. 133, 78 L. Ed. 267 (1933); Neff, 163 F.R.D. at 483. Accordingly, the named Plaintiff would need to meet the jurisdictional minimum of $ 75,000 through his own compensatory damages (trebled), his own share of attorney's fees, and his own share of punitive damages in order for this Court to have subject matter jurisdiction over the claims of any class member who did not individually meet the amount in controversy requirement.

 It is mathematically impossible for the named Plaintiff to have an amount in controversy that exceeds $ 75,000. First, the named Plaintiff's compensatory damages are extremely low. As stated above, Plaintiff's Complaint is based on the allegation that he and other New Jersey card holders did not receive the entire amount of the promised 4% discount on gasoline purchased. In order to meet the $ 75,000 minimum on compensatory damages alone, Plaintiff would have to had purchased $ 1,875,000 gallons in gasoline. Additionally, the named Plaintiff has submitted an affidavit in which he claims his compensatory damages equal less than $ 100. Accordingly, even if trebled, the named Plaintiff's compensatory damages equal less than $ 300.

 Second, for Plaintiff's pro rata portion of the attorney's fees or punitive damages to individually meet the amount in controversy requirement, the total amount awarded to the class members for either of these would have to equal $ 750,000,000. It is preposterous to think that any award of either attorney's fees or punitive damages would ever reach such a level. Additionally, for the amount in controversy to be satisfied by a combination of the named Plaintiff's compensatory damages, attorney's fees, and punitive damages, the combined total of attorney's fees and punitive damages would have to equal approximately $ 747,000,000. This figure is as outrageous as the first and this Court cannot imagine awarding such amounts in a case that deals with rebates owed on gasoline purchases. Accordingly, Defendant has failed to meet its burden of establishing that the named Plaintiff meets the minimum jurisdictional amount for this Court to have original jurisdiction over the action under 28 U.S.C. § 1332.

 IV. CONCLUSION

 For the reasons set forth above, Plaintiff's motion to remand the above captioned action to the New Jersey Superior Court, Law Division, Bergen County, will be granted. An appropriate order will issue.

 DATED : April 27th, 1998.

 STANLEY R. CHESLER, U.S.M.J.

 ORDER

 CHESLER, MAGISTRATE JUDGE

 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; and consistent with this Court's opinion of even date;

 IT IS, is therefore, on his 27th day of April, 1998, hereby

 ORDERED that Plaintiff's motion to remand the above captioned action to the New Jersey Superior Court, Law Division, Bergen County, be and hereby is GRANTED.

 STANLEY R. CHESLER, U.S.M.J.


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