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Hoffman v. Pharmacare U.S. Inc.

United States District Court, D. New Jersey

December 14, 2017

HAROLD M. HOFFMAN, Plaintiff,
v.
PHARMACARE U.S. INC., Defendant.

          REPORT & RECOMMENDATION

          CLARK, MAGISTRATE JUDGE

         THIS 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.

         I. BACKGROUND

         Plaintiff 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”).[1] 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.

         As set 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.

         On May 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.

         II. LEGAL STANDARD

         A civil 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.

         The 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.

         “The 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.

         Second, 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).

         III. DISCUSSION

         Although 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 costs.

         Plaintiff 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 ...


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