United States District Court, D. New Jersey
BRIAN J. ALOIA, Plaintiff,
DISCOVER FINANCIAL SERVICES and RETRO FITNESS OF HOBOKEN, Defendants.
OPINION AND ORDER
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 Brian Aloia's (“Aloia”)
unopposed motion to remand (ECF No. 10). Decided without oral
argument pursuant to Local Rule 78, for the reasons set forth
below, the Court recommends that the motion be
signed up for a gym membership at Defendant Retro Fitness of
Hoboken (“Retro”). ECF No. 1-2 (Compl.) ¶
11. He paid for the membership with a credit card from
Defendant Discover Financial Services (“Discover,
” and with Retro, “Defendants”).
Id. ¶¶ 10, 23. Aloia was under the
impression that he could cancel is Retro membership at any
time. Id. ¶¶ 11 (describing Aloia's
contract as “month-to-month”), 15-18.
notified Retro on August 29, 2017 that he was canceling his
Retro membership. Compl. ¶ 21. Retro nonetheless billed
Aloia's Discover card the next day. Id. ¶
23. After being charged again in November 2017, Aloia
contacted Retro's owner, who stated that Aloia could not
cancel his Retro membership and that he would continue
billing the Discover card. Id. ¶¶ 28-31.
Retro ultimately charged Aloia $1, 229.55. Id.
disputed the charges with Discover, who initially posted a
credit of $1, 229.55 to his account but then withdrew it.
Compl. ¶¶ 36-38. He continued disputing the charges
with Discover, to no avail. Id. ¶¶ 37-38.
Around that time, Defendants “placed inaccurate and
negative information about the alleged debt on
Plaintiff's credit report, ” and according to Aloia
they continue to do so. Id. ¶¶ 42, 56.
Aloia's credit score has fallen from 839 to approximately
700. Id. ¶¶ 43, 57. Defendants have also
applied interest and penalties to Aloia's discover card
as a result of the alleged unpaid debt, so his charges have
increased to $1, 499.56. Id. ¶ 59. Aloia
continues to dispute the debt; Discover still demands
payment. Id. ¶¶ 41, 59.
sued Defendants in New Jersey Superior Court on January 8,
2019, bringing five claims: (1) violation of the Fair Credit
Reporting Act (“FCRA”) against Discover; (2)
consumer fraud under 15 U.S.C. § 1692c(a), et
seq., against both Defendants; (3) violation of the New
Jersey Consumer Fraud Act (“NJCFA”) against
Retro; (4) breach of contract against Discover; and (5)
breach of contract against Retro. See Compl.
Discover removed the case to this Court, ECF No. 1, and
settled all claims against it, ECF Nos. 6-8. Aloia
voluntarily dismissed Count 2, leaving only Counts 3 and 5.
ECF Nos. 9, 11. He then moved to remand. ECF No. 10. Retro
did not oppose.
U.S.C. § 1447 provides that when “it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.” On a motion to remand, the
removing party has the burden of establishing that
jurisdiction exists. Boyer v. Snap-On Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990), cert. denied 498
U.S. 1085 (1991). Removal statutes “are to be strictly
construed against removal, and all doubts resolved in favor
of remand.” Id. at 111 (citations and
the remanding party, bears the burden of establishing that
jurisdiction exists. Boyer, 913 F.2d at 111.
Discover is no longer a party, though, having settled all
claims against it. ECF Nos. 6-8. The other defendant, Retro,
has not opposed Aloia's motion.
Retro opposed, this Court would not have subject matter
jurisdiction over the action. Discover removed the case based
on federal question jurisdiction under 28 U.S.C. § 1331.
ECF No. 1. At the time of removal, Aloia maintained two
federal claims against Defendants: consumer fraud and
violation of the FCRA. Compl. at 7-9. Discover settled the
FCRA count, ECF No. 8, and Aloia dismissed the consumer fraud
one, ECF No. 11. No. federal causes of action remain, so the
Court does not have federal question jurisdiction. See
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)
(explaining that “federal jurisdiction exists only when
a federal question is presented on the face of the
plaintiff's properly pleaded complaint”).
Additionally, Retro has not argued that the Court has
diversity jurisdiction. The Court thus does not have subject
matter jurisdiction over Aloia's suit.
reasons set forth above and because this Court lacks subject
matter jurisdiction, the Court recommends that Aloia's
unopposed motion to remand (ECF No. 10) be GRANTED, and that
the case ...