The opinion of the court was delivered by: Honorable Madeline Cox Arleo
REPORT AND RECOMMENDATION
THIS MATTER comes before the Court upon the motion of plaintiff, Jeffrey Sidoti and the proposed class ("Plaintiff"), to remand this civil action against Housewares America, Inc. ("Housewares"), to the Superior Court of New Jersey (Docket Entry No. 9). Housewares opposes the motion. District Judge Wigenton referred the remand motion to me for Report and Recommendation.
This Court held oral argument on May 25, 2010, requested supplemental briefing, and reserved ruling from the bench. This written opinion supplements the transcript of the May 25, 2010, hearing, pursuant to LOCAL CIVIL RULE 52.1. Having considered the parties' submissions, for good cause shown, and for the reasons set forth on the record and herein, the Court respectfully recommends that Plaintiff's motion to remand be GRANTED.
On June 26, 2009, Plaintiff filed a complaint in state court on behalf of himself and a proposed class of individuals who allegedly have been the victims of consumer fraud in violation of the New Jersey Consumer Fraud Act, N.J. STAT. ANN. § 56:8-1, et seq.; and New Jersey Common law. Plaintiff's class action complaint arises out of Housewares' and Evert-Fresh, Inc.'s ("Evert-Fresh") allegedly false and misleading advertising of Debbie Meyer Green Bags ("Green Bags"), by claiming that the product was designed to significantly extend the life of fruits, vegetables and flowers. According to Plaintiff, both Housewares and Evert-Fresh are the registered trademark owners and distributors of the Debbie Meyer brand of Green Bags. Plaintiff alleges that both Houswares and Evert-Fresh made the misrepresentations without possessing the requisite scientific evidence to substantiate their claims about their product. Relying on these alleged misstatements, Plaintiff and the proposed class members purchased the Green Bags to their detriment. Plaintiff alleges that the amount of individual out-of-pocket damages for each potential class member is approximately $19.95.
On January 6, 2010, a summons was issued for Housewares. (Apr. 5, 2010 Declaration of Franklyn Hernandez, Jr. ("Hernandez Decl.") at Exh. 2). On January 11, 2010, the summons and complaint were served on Housewares. (Mar. 19, 2010 Declaration of Michael Langan ("3/19/10 Langan Decl.") at ¶ 3, Exh. A; Apr. 12, 2010 Declaration of Michael Langan ("4/12/10 Langan Decl.") at ¶ 3, Exh. A). On January 14, 2010, Plaintiff filed proof of service as to Housewares with the Clerk of the Superior Court. (4/12/10 Langan Decl. at Exh. A). On January 15, 2010, the Superior Court sua sponte issued an Order, dismissing Evert-Fresh from the action for failure to prosecute. (Langan 4/12/10 Langan Decl. at Exh. A; Jan. 15, 2010 Order of Judge Diane Pincus).*fn1
On February 17, 2010, Housewares, a New Jersey corporation, removed the state action pursuant to 28 U.S.C. §§ 1441 and 1453. In its removal petition, Housewares asserts that this Court has subject matter jurisdiction over this action. According to Housewares, diversity of citizenship exists, under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), because at least one proposed class member and Evert-Fresh are citizens of different states. It is undisputed that Plaintiff and all of the proposed class members are citizens of New Jersey while Evert-Fresh is a citizen of Texas. Thus, according to Housewares, CAFA's minimum diversity requirement has been satisfied under 28 U.S.C. § 1332(d)(2)(A).
Housewares relies on Plaintiff's allegations in his Complaint to establish that the amount in controversy exceeds the $5,000,000 jurisdictional amount, exclusive of interest and costs. Housewares further claims that it timely removed the action, within thirty days of the receipt of the Summons and Complaint pursuant to 28 U.S.C. § 1446.
On March 19, 2010, Plaintiff filed the pending motion to remand the case to the Superior Court of New Jersey pursuant to 28 U.S.C. § 1447.
A. Legal Standard for a Motion To Remand
As a preliminary matter, under CAFA, a district court has original subject matter jurisdiction of any civil action where minimal diversity is established and the aggregated amount in controversy exceeds $5,000,000, exclusive of interests and costs. 28 U.S.C. § 1332(d)(2). Specifically, section 1332(d)(2)(A)-(C) provides that minimal diversity of citizenship is demonstrated in a class action in which:
(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;
(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or
(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen ...