United States District Court, D. New Jersey
HAROLD M. HOFFMAN, Plaintiff,
PHARMACARE U.S. INC., Defendant.
REPORT & RECOMMENDATION
MATTER comes before the Court on a motion by pro
se Plaintiff Harold M. Hoffman (“Plaintiff')
to remand this matter to New Jersey Superior Court, Bergen
County, Law Division [ECF No. 5]. Defendant Pharmacare U.S.
Inc. (“Defendant”) opposes Plaintiff's motion
[ECF No. 6]. Pursuant to Local Civil Rule 72.1(a)(2), the
Honorable Claire C. Cecchi, U.S.D.J., referred the present
Motion to the Undersigned for Report and Recommendation.
Having considered that parties' written submissions
pursuant to Federal Rule of Civil Procedure 78, for good
cause shown and for the reasons set forth herein, it is
respectfully recommended that Plaintiff's motion to
remand be GRANTED.
filed the instant putative class action in the Superior Court
of New Jersey, Bergen County, Law Division, on April 17, 2017
alleging, inter alia, various violations of the New
Jersey Consumer Fraud Act, N.J.S.A. 56:8-2
(“NJCFA”) and common law fraud in connection with
Defendant's product, Sambucol Cold & Flu Relief
(“Sambucol”). See Complaint, ECF No. 1-1
(“Compl.”). Plaintiff's proposed class
consists of “all New Jersey purchasers of Sambucol, who
purchased Defendant's product during the one year period
preceding the filing of this suit.” Compl. at p. 8.
forth in the Complaint, Plaintiff alleges that he purchased
Sambucol, an over-the-counter homeopathic product in tablet
form, in January of 2017, for the purchase price of $14.99.
Id. at ¶ 1. According to Plaintiff, while
Sambucol claims to be a homeopathic formulation effective in,
and to be used for, the prevention, cure, mitigation, and
therapeutic treatment of cold, flu, muscle ache, headache,
fever, chills, dry throat and cough, the tablet contains
“nothing at all . . . therapeutic for the foregoing
conditions and/or symptoms.” Id. at p. 1-2.
Plaintiff further asserts that Defendant's false claims
regarding the efficacy of Sambucol “were calculated and
designed to lead members of the class to believe that
Sambucol was a lawful, appropriate therapy for
disease.” Id. at p. 6. The Complaint seeks the
following: (1) compensatory damages; (2) treble and other
statutory damages under NJCFA; (3) punitive damages; and (4)
attorney's fees and costs.
18, 2017, Defendant removed the action to this Court pursuant
to 28 U.S.C §1441, citing this Court's federal
diversity jurisdiction under 28 U.S.C § 1332(a).
See Notice of Removal, ECF No. 1
(“NOR”). Although Plaintiff's Complaint does
not contain a specified amount of damages, Defendant contends
that removal is proper because the parties are diverse and
because the amount in controversy exceeds $75, 000. See
id. On May 26, 2017, Plaintiff filed the instant motion
to remand this matter asserting that the amount in
controversy does not exceed the jurisdictional threshold of
$75, 000. See ECF No. 5.
action brought in state court may be removed by the defendant
to a federal district court if the district court has
original jurisdiction over the claim. 28 U.S.C. §
1441(a); see also Samuel-Bassett v. Kia Motors Am.,
357 F.3d 392, 398 (3rd Cir. 2004). Federal district courts
have original jurisdiction on the basis of diversity of
citizenship where: (1) the matter in controversy exceeds the
sum or value of $75, 000; and (2) there is diversity of
citizenship between each plaintiff and each defendant in the
case. See, e.g., Kaufman v. Allstate N.J. Ins. Co.,
561 F.3d 144, 148 (3d Cir. 2009) (citing 28 U.S.C. §
1332(a)(1)). Under § 1332(a)(1), “the party
asserting federal jurisdiction in a removal case bears the
burden of showing, at all stages of the litigation, that the
case is properly before the federal court.”
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir.
2007) (citing Samuel-Bassett, 357 F.3d at 396);
Morgan v. Gay, 471 F.3d 469, 473 (3d Cir. 2006). Any
doubts must be resolved in favor of remand.
Samuel-Basset, 357 F.3d at 403.
parties do not dispute that complete diversity exists.
Plaintiff is a citizen of New Jersey and Defendant is a
corporate entity incorporated in Delaware with its principal
place of business in California. Accordingly, because the
Court is satisfied that there is complete diversity between
the parties, subject matter jurisdiction turns on whether the
amount in controversy exceeds $75, 000.
Third Circuit has provided a ‘roadmap' for
evaluating whether a case removed from state court should be
remanded because the amount in controversy does not exceed
$75, 000.” Venuto v. Atlantis Motor Grp., LLC,
No. CV173363RBKKMW, 2017 WL 4570283, at *2 (D.N.J. Oct. 13,
2017) (citing Frederico, 507 F.3d at 196). First, if
the parties dispute jurisdictional facts, the party carrying
the burden of proof must establish federal jurisdiction by a
preponderance of the evidence. Frederico, 507 F.3d
at 194 (citing McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178 (1936)). Even if jurisdictional
facts are not expressly in dispute, a “court may still
insist that the jurisdictional facts be established or the
case be dismissed, and for that purpose the court may demand
that the party alleging jurisdiction justify his allegations
by a preponderance of the evidence.” McNutt,
298 U.S. at 189.
if jurisdictional facts are not in dispute, or the court is
satisfied with the sufficiency of the jurisdictional proof,
the analysis turns to whether the jurisdictional amount is
met with “legal certainty.” Frederico,
507 F.3d at 196. The legal certainty test has two alternative
strands. Id. If the complaint “specifically
avers that the amount sought is less than the jurisdictional
minimum, ” a defendant “seeking removal must
prove to a legal certainty that [the] plaintiff can recover
the jurisdictional amount.” Id. at 196-97
(relying on Morgan, 471 F.3d at 469). A plaintiff is
entitled to this deferential standard only if the complaint
“specifically (and not impliedly) and precisely (and
not inferentially) states that the amount sought” shall
not exceed the jurisdictional minimum. Id. at 196.
Alternatively, if the “plaintiff has not specifically
averred in the complaint that the amount in controversy is
less than the jurisdictional minimum, ” then “the
case must be remanded if it appears to a legal certainty that
the plaintiff cannot recover the jurisdictional
amount.” Id. at 197 (emphasis in original)
(relying on Samuel-Bassett, 357 F.3d at 392).
the parties disagree as to the burden of proof required in
evaluating whether the amount in controversy has been met,
with Plaintiff arguing that a preponderance of the evidence
standard should apply, and Defendant arguing that the legal
certainty standard applies, the parties do not dispute the
jurisdictional facts and Plaintiff's Complaint does not
explicitly limit his claims to an amount less than $75, 000.
Accordingly, because the jurisdictional facts are not in
dispute and because Plaintiff has not limited damages below
the jurisdictional threshold, this matter must be remanded if
it appears to a “legal certainty” that Plaintiff
cannot recover the requisite jurisdictional amount.
Frederico, 507 F.3d at 197. Determining whether it
is legally certain that Plaintiff's claims do not seek
recovery in excess of $75, 000 requires an analysis of the
recoverable damages under the claims set forth in the
Complaint. Although not quantified, Plaintiff's Complaint
seeks relief in the following categories: (1) compensatory
damages; (2) treble and other statutory damages under the
NJCFA; (3) punitive damages; and (4) attorney's fees and
alleges that he suffered $14.99 in actual damages, while also
seeking statutory treble damages pursuant to Defendant's
alleged violation of the NJCFA. A private party may state a
claim under the NJCFA if he or she can demonstrate
ascertainable loss caused by a defendant's violation of
the statute. See N.J.S.A. 56:8-19; Thiedmann v.
Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005).
Because Plaintiff has alleged an ascertainable loss of
approximately $14.99, the statute further requires courts to
award plaintiffs threefold the actual ...