United States District Court, D. New Jersey
REPORT & RECOMMENDATION
L. WALDOR UNITED STATES MAGISTRATE JUDGE
matter comes before the Court by way of referral from The
Honorable Esther Salas to issue a report and recommendation
regarding Plaintiff Joseph Rakofsky's Motion to Remand.
(“Motion, ” ECF No. 4). The Court declined to
hear oral argument pursuant to Rule 78 and as set forth more
fully below, the Court recommends the Motion to Remand and
the Motion for Attorney's Fees be
first filed this action in Hudson County Superior Court of
New Jersey on March 11, 2019, alleging state law claims of
fraud, negligence, breach of contract, tortious interference
with business contracts, unjust enrichment, negligent
infliction of emotional distress, intentional infliction of
emotional distress and violations of New Jersey's
Consumer Fraud Act against the Defendant. (Opposition to
Plaintiff's Motion to Remand, ECF No. 7 at 2). The
following facts are taken from Plaintiff's Complaint.
Plaintiff purchased a health insurance policy from Defendant
with a relative, who was ill. (Compl. ¶ 3).
Subsequently, Plaintiff opened a joint bank account will his
ill relative at Bank of America to provide funds for required
medical and day-to-day services that Plaintiff's relative
required in order to survive. (Compl ¶¶ 4, 5).
Plaintiff provided Defendant permission to deduct its
premiums automatically and thereafter, Defendant deducted
premiums from the aforementioned account and continued to do
so despite being duly informed Plaintiff's relative had
died. (Compl. ¶¶ 6, 7, 9, 10).
about March 8, 2019, Plaintiff communicated with Defendant
and stated that they must stop charging Plaintiff's bank
account and immediately refund Plaintiff the money improperly
deducted from Plaintiff's bank account. (Compl.
¶¶ 12, 13). An agent for Defendant allegedly stated
that it would continue to charge Plaintiff premiums despite
knowing Plaintiffs relative had died and despite
Plaintiff's demands that Defendant stop withdrawing from
the account. (Compl. ¶¶ 14, 15). Plaintiff now
alleges mental anguish and traumatic emotional injury as a
result of United's alleged intentional and fraudulent
conduct, which have left him unable to work as an attorney
and earn income for the next 30 years. (Compl. ¶¶
29, 37, 41, 46, 51, 55, 61, 68, 69). He also alleges that he
requires physical rehabilitation and psychological treatment
for the rest of his life. (Id.) In addition,
Plaintiff is seeking punitive damages against United as well
as treble damages and statutory reimbursement of his
attorney's fees. (Opposition to Plaintiff's Motion to
Remand (“Opp.”), ECF No. 7 at 2).
April 11, 2019, Defendant removed this action to this Court
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.
(Notice of Removal, ECF No. 1). Defendant's basis for
removal was diversity of citizenship. Plaintiff is a citizen
and resident of the State of New Jersey. (Compl.
¶ 1). Defendant is incorporated under the laws of the
State of Minnesota, with its principal place of business in
the State of Minnesota. (Notice of Removal ¶5). Because
this case was originally filed in state court, Plaintiff did
not assert an amount in his Complaint, however Defendant
asserts the nature of the claims and relief sought exceeds
$75, 000 exclusive of interest and costs and therefore is
properly before federal court. (Id. ¶6).
April 19, 2019, Plaintiff filed this motion to remand.
Defendant filed their Opposition to Plaintiff's Motion to
Remand on May 20, 2019. On June 2, 2019, Plaintiff filed a
Reply. (ECF No. 9).
federal removal statute provides, “any civil action
brought in a state court of which the district courts of the
United States have original jurisdiction, may be removed . .
. to the district courts of the United States for the
district and division embracing the place where such action
is pending.” 28 U.S.C. § 1441. The federal removal
statute should be “strictly construed against
removal… [and] all doubts should be resolved in favor
of remand.” DeJoseph v. Cont'l Airlines,
Inc., 18 F.Supp.3d 595, 597 (D.N.J. 2014). There is a
“presump[tion] that federal courts lack jurisdiction
unless the contrary appears affirmatively from the
record.” Id. at 598 (quoting Renne v.
Geary, 501 U.S. 312, 316 (1991)).
district courts have jurisdiction over all civil actions
between citizens of different states where the amount of
controversy exceeds $75, 000. 28 U.S.C. §1332. Section
1441(b)(2) provides that “[a] civil action otherwise
removable solely on the basis of the [diversity jurisdiction]
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which the action is brought.” 28 U.S.C.
§1441(b)(2). The defendant seeking removal has the
burden of proving that diversity jurisdiction exists.
McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936); Samuel-Bassett v. KIA Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004). However, when a
complaint fails to demand a specific amount of damages, the
court must perform its own “independent appraisal of
the value of the claim.” Angus v. Shiley,
Inc., 989 F.2d 142, 146 (3d Cir. 1993).
parties do not dispute that Plaintiff and Defendant are
citizens of different states. At issue is whether the amount
in controversy can be met. Defendant claims that if Plaintiff
can substantiate his allegations, the jurisdictional
threshold will be met by the alleged lost wages alone. (Opp.
at 5). Plaintiff argues that Defendant's removal was
improper because Plaintiff does not assert any particular
amount in controversy in his Complaint and the nature of the
state law claims and state law relief against United does not
exceed $75, 000. (Motion at ¶ 20). Moreover, Plaintiff
asserts that any doubt as to the amount in controversy must
be resolved in favor of remand. (Id. (citing
Morgan v. Gay, 471 F.3d 469, 473 (3d Cir. 2006)).
appropriate analysis for whether the amount in controversy
meets the jurisdictional threshold is set forth in
Frederico v. Home Depot, 507 F.3d 188 (3d.
Cir.2007). In Frederico, the Third Circuit clarified
that where a plaintiff has not specifically alleged an amount
in controversy that is less than the jurisdictional minimum,
Samuel-Bassett v. KIA Am., Inc., 357 F.3d 392 (3d
Cir. 2004) applies. Frederico, 507 F.3d at 197.
Under Samuel-Bassett, a court must first determine
whether there are disputes over factual matters relevant to
establishing jurisdiction. Frederico, 507 F.3d at
194. Where no factual disputes exist, as is the case here,
the court should adhere to the “legal certainty”
test established by the Supreme Court in St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct.
586, 82 L.Ed. 845 (1938). Frederico, 507 F.3d at
194, 197. Under the Red Cab legal certainty test, a
case should be dismissed or remanded only when the
“challenger to subject matter jurisdiction” can
prove to a legal certainty that the amount in controversy
“could not exceed the statutory threshold.”
Id. at 195
alleges mental anguish and traumatic emotional injury as well
as the need for physical rehabilitation and psychological
treatment for the rest of his life. (Compl. ¶ ¶ 29,
37, 41, 46, 51, 55, 61, 68, 69). Specifically, Plaintiff
alleges that the mental anguish has been so terrible that he
is unable to sleep, which has resulted in physical pain and
an inability to participate in the majority of his daily
activities. (Compl. ¶ 29). Plaintiff further alleges
that because he suffered physical pain, mental anguish, and
traumatic emotional injury as a result of ...