Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HARVEY v. BLOCKBUSTER

August 8, 2005.

PETER C. HARVEY, Attorney General of State of New Jersey, and JEFFREY C. BURSTEIN, Acting Director of New Jersey Division of Consumer Affairs, Plaintiffs,
v.
BLOCKBUSTER, INC., Defendant.



The opinion of the court was delivered by: MARY COOPER, District Judge

MEMORANDUM OPINION

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.

  BACKGROUND

  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)

  A. Section 1332(a)(1)

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.