Brahamsha v. Oy

ALAN BRAHAMSHA, individually andon behalf of all others similarly situated, Plaintiff, v. SUPERCELL OY, a Finnish limited company, Defendant.

Civ. No. 16-8440

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

July 17, 2017

**NOT FOR PUBLICATION**

OPINION

WOLFSON, U.S.D.J.

This matter comes before the Court upon the motion (ECF No. 16) of Defendant Supercell OY ("Defendant") to dismiss the Complaint of Plaintiff Alan Brahamsha ("Plaintiff") for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), and, in the alternative, for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), on the ground that Plaintiff lacks Article III standing; and upon the motion of Plaintiff to remand this matter back to the Superior Court of New Jersey and award attorney's fees, pursuant to 28 U.S.C. § 1447(c) (ECF No. 29). Each motion is opposed (ECF Nos. 35, 36, respectively). The substance of Plaintiff's motion to remand is coextensive with its opposition to Defendant's motion to dismiss under Rule 12(b)(1), namely that were the Court to find, as Defendant argues, that Plaintiff lacks Article III standing to sue and that the Court therefore lacks subject matter jurisdiction over the Complaint, the appropriate remedy is remand to the state court, not dismissal. The Court issues the following opinion based upon the written submissions of the parties, without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons stated herein, the Court, fulfilling its independent obligation to examine its own jurisdiction including the jurisdictional element of standing, finds (i) that Plaintiff lacks Article III standing to bring his claims before this Court, (ii) that this Court therefore lacks subject matter jurisdiction over the Complaint, and (iii) that this matter must therefore be remanded to the Superior Court of New Jersey. Consistent with these findings, Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) is denied as moot, its motion under Fed. R. Civ. P. 12(b)(6) is denied without prejudice, and Plaintiff's cross motion to remand is denied as moot. Further, the Court denies Plaintiff's motion for attorney's fees.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

This matter pertains to a contract for the use of a mobile game, which Plaintiff alleges violates the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act ("TCCWNA"). Plaintiff's relevant allegations are as follows: Plaintiff purchased a mobile game from Defendant. In order to use the game, Plaintiff had to agree to Defendant's Terms of Service, which were presented in a take-it-or-leave-it format. The Terms of Service purport to bind consumers to "irrevocably waive all rights to seek injunctive or other equitable relief." (Compl. at 7, ECF No. 1). Furthermore, the Terms of Service state:

Supercell shall not be liable to you for any indirect, incidental, consequential, special, punitive or other similar damages . . . arising out of or relating in any way to these terms of service or the service itself, whether based on contract, tort or other legal theory . . . . Supercell shall not be liable to you for more than the amount you have paid to Supercell . . . in the six (6) months immediately preceding the date on which you first assert a claim. . . . [I]f you have not paid anything . . . during such time period, your sole remedy (and Supercell's exclusive liability) for any dispute with Supercell is to stop using the service and to cancel your account.

(Id. at 8). The Terms of Service state that some of their disclaimers and limitations may not apply in some jurisdictions. They do not specify which terms do or do not apply in any particular jurisdiction, including the State of New Jersey. (Id. at 9).

Plaintiff brought this matter as a class action in the Superior Court of New Jersey, Monmouth County, seeking damages under the TCCWNA. (ECF No. 1-1); N.J.S.A. § 56:12-17 (where there is a violation of the TCCWNA, the statute provides "for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney's fees and court costs."). Defendant removed the case to this Court on November 11, 2016, invoking the Court's diversity jurisdiction under the Class Action Fairness Act ("CAFA"). (ECF No. 1). On December 2, 2016, Defendant moved to dismiss this action for failure to state a claim (Fed. R. Civ. P. 12(b)(6)) and, in the alternative, for lack of subject matter jurisdiction (Fed. R. Civ. P. 12(b)(1)) on the ground that Plaintiff lacks Article III standing to sue in federal court. (ECF No. 16). Plaintiff opposed Defendant's motion, and, on December 15, 2016, moved to remand and for an award of attorney's fees under 28 U.S.C. § 1447(c). (ECF No. 29). These motions are presently before the Court.

In his motion to remand, Plaintiff does not advance separate, affirmative arguments compelling remand to the state court. Plaintiff does not, for example, concede that the Court lacks subject matter jurisdiction due to Plaintiff's lack of standing. Instead, he incorporates his arguments raised in opposition to Defendant's motion to dismiss under Rule 12(b)(1) and asserts that, given Defendant's position that Plaintiff lacks Article III standing, such that this Court has no subject matter jurisdiction over the case, Defendant lacked a reasonable basis to remove the case to federal court in the first instance. Plaintiff argues that were the Court to agree with Defendant that it lacks subject matter jurisdiction, § 1447(c) would require remand to the state court rather than dismissal. Accordingly, the outcome of Plaintiff's "motion" to remand is determined by the Court's standing analysis on Defendant's motion to dismiss under Rule 12(b)(1). The Court will thus consider the parties' arguments in both sets of briefing concerningthat analysis. Moreover, the Court would be required to evaluate Plaintiff's Article III standing to sue even if the parties had failed to raise it in their motions because "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.'" United States v. Hays, 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-231 (1990)) (alterations in original). I therefore consider the parties' motions in tandem, focusing on the essential inquiry of Article III standing.

STANDARD OF REVIEW

A civil action brought in state court may be removed by defendants 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 (3rd Cir. 2009) (citing 28 U.S.C. § 1332(a)(1)). Alternatively, pursuant to CAFA, federal district courts have original jurisdiction over class actions where (1) the matter in controversy (i.e., the aggregated claims of the individual class members) exceeds the sum or value of $5,000,000, exclusive of interest and costs, (2) any member of a class of plaintiffs is a citizen of a state different from any defendant, and (3) the class has at least 100 members. 28 U.S.C. § 1332(d)(2)(A), (d)(5)(B), (d)(6); Standard Fire Ins. Co. v. Knowles, ___ U.S. ___, 133 S. Ct. 1345, 1348 (2013); Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358 (3d Cir. 2015). "A party asserting federal jurisdiction in a removal case bears the burden of showing 'that the case is properly before the federal court."' Judon v. Travelers Prop. Cas. Co. of Am., 773 F.3d495, 500 (3d Cir. 2014) (quoting Frederico v. Home Depot, 507 F.3d 188, 193 (3rd Cir. 2007)); see also Morgan v. Gay, 471 F.3d 469, 473 (3rd Cir. 2006), cert. denied, 552 U.S. 940 (2007). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded to state court. 28 U.S.C. § 1447(c). Any doubts must be resolved in favor of remand. Samuel-Bassett, 357 F.3d at 403.

"[A] defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co., LLC v. Owens, ___U.S.___, 135 S. Ct. 547, 554 (2014). "Thus, the grounds for removal should be made in 'a short plain statement,' just as required of pleadings under Fed. R. Civ. P. 8(a)." Grace v. T.G.I. Fridays, Inc., No. 14-7233, 2015 U.S. Dist. LEXIS 97408, at *8-9, 2015 WL 4523639 (D.N.J. July 27, 2015) (citing Dart Cherokee, 135 S. Ct. at 553). No evidentiary support is required, and the Court should accept a defendant's allegations unless they are contested by the plaintiff or questioned by the Court. See Dart Cherokee, 135 S. Ct. at 553. When the sufficiency of the jurisdictional allegations in a notice of removal is challenged, the parties must submit proofs for the court to decide, by a preponderance of the evidence, whether the jurisdictional requirements are satisfied. See id. at 554.

ANALYSIS

A. Article III Standing

Defendants allege that this Court has jurisdiction pursuant to the CAFA. (ECF No. 1, Notice of Removal). However, in its motion to dismiss, Defendant argued, inter alia, that Plaintiff had not suffered an actual injury or harm and therefore lacked Article III standing to bring his claim; where Plaintiff lacks standing, the Court lacks subject matter jurisdiction and the matter must be dismissed for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (ECF No.16, at 12-15). In his motion to remand, Plaintiff argues that Defendant undercuts its basis for removal by making this standing-jurisdiction argument;...