The opinion of the court was delivered by: MARY COOPER, District Judge
The plaintiffs brought this action in state court to recover
civil penalties and for a permanent injunction under the New
Jersey Consumer Fraud Act ("NJCFA") and regulations promulgated
thereunder. (Compl., at 2-12.) The defendant Blockbuster, Inc.
("BBI"), which is a Delaware corporation with its principal place
of business in Texas removed the action to this Court under (i)
28 U.S.C. § ("Section") 1332(a)(1), and (ii) the Class Action Fairness Act, Sections 1332(d)(1)(B) and (2)(A). (Rmvl.
Not., at 2-6.)*fn1
The plaintiffs move to remand the action and for an award of
costs and expenses incurred from the removal. The Court, under
Federal Rule of Civil Procedure ("Rule") 78, will decide the
motion without oral hearing and on the papers. The Court will
grant only the part of the motion seeking remand.
BBI is "engaged in the retail rental and/or sale of merchandise
to consumers in th[e] State [of New Jersey] and elsewhere
including, but not limited to, DVDs, VHS tapes and video and
computer games." (Compl., at 3; see Ans., at 2.) The plaintiffs
(1) Peter C. Harvey, Attorney General of the State of New
Jersey, and (2) Jeffrey C. Burstein, Acting Director of the New
Jersey Division of Consumer Affairs brought this action in New
Jersey Superior Court, Mercer County. (Compl., at 1-2.) They
allege that BBI violated the NJCFA by "[f]ailing to clearly and
conspicuously disclose the terms of `The End of Late Fees' [or]
`No More Late Fees' policy in its advertisements, in-store
signage and through store personnel." (Id. at 9.)
BBI removed the action under Section 1332(a)(1) and Sections
1332(d)(1)(B) and (2)(A). The plaintiffs move: (1) to remand, arguing that jurisdiction is lacking under (a) Section 1332(d)
since this is not a class action, and (b) all of Section 1332
since the action lacks diversity of citizenship; and, (2) for an
award of costs and expenses incurred from the removal pursuant to
Section 1447(c). (Pl. Br., at 4-6.)*fn2
BBI argues in opposition that this is a class action and
there is jurisdiction under Section 1332(d) because: (1) the
plaintiffs are acting in a representative capacity; and, (2)
Congress rejected an amendment creating an exception for
consumer-fraud actions brought by attorneys general even though
Section 1332(d) excludes actions wherein a state official is the
primary defendant, see 28 U.S.C. § 1332(d)(5)(A) and thus
intended to treat this type of action as a class action. (Def.
Br., at 1-6.) BBI also argues that the New Jersey citizenship of
the named plaintiffs and unnamed New Jersey citizens benefiting
from any relief awarded should be considered for the purposes of
determining jurisdiction under Section 1332. (Id. at 10;
5-13-05 Def. Letter, at 1-2.) DISCUSSION
I. Section 1332(a)(1); Sections 1332(d)(1)(B) & (2)(A)
The Court has jurisdiction under Section 1332(a)(1) "of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States." An action is not properly
removed thereunder unless there is "complete diversity" between
each plaintiff and each defendant. CGB Occ. Therapy v. RHA
Health Servs., 357 F.3d 375, 381 n. 6 (3d Cir. 2004).
B. Sections 1332(d)(1)(B) & (2)(A)
The Court has jurisdiction under Section 1332(d), in relevant
part, "of any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of interest and
costs, and is a class action in which any member of a class of
plaintiffs is a citizen of a State different from any defendant."
28 U.S.C. § 1332(d)(2)(A). A "class action" is defined as a
"civil action filed under [R]ule 23 . . . or similar State
statute or rule of judicial procedure authorizing an action to be
brought by 1 or more representative persons as a class action."
28 U.S.C. § 1332(d)(1)(B). Thus, an action is not properly
removed thereunder unless (1) it meets the definition of a class
action, and (2) there is "minimal diversity" of citizenship.
Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805, 806 (7th Cir. 2005). See S.Rep. No. 109-14, at 28 (2005) (using
phrase "balanced diversity").*fn3
C. Burden Of Demonstrating Propriety Of Removal
A defendant removing an action generally bears the initial
burden of demonstrating that an action should not be remanded to
state court. Dev. Fin. Corp. v. Alpha Hous. & Health Care,
54 F.3d 156, 158 (3d Cir. 1995). But it appears that the party
opposing removal under Section 1332(d) bears the initial burden
of demonstrating that an action should be remanded. See S.Rep.
109-14, at 42-44. See also 151 Cong.Rec. H723-01, at H727 ...