CLD

- 007 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3225

___________ JAY L. THOMAS , Appellant

v. NORTHEASTERN UNIVERSITY

____________________________________ Appeal from the United States District C ourt for the District of New Jersey ( D.N.J. Civil No. 2

- 11

- cv - 03905 ) District Judge: Honorable William J. Martini

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 6, 2011 Before: RENDELL, HARDIMAN and ROTH, Circuit Judges (Opinion filed : January 10, 2012 )

_________ OPINION OF THE COURT

_________ PER CURIAM Appellant Jay Thomas, proceeding pro se , appeals an order of the United States District Court for the District of N ew Jersey dismissing his complaint against2 Northeastern University . For the reasons that follow, we will affirm the order of the District Court. Thomas alleged in his complaint that he was an online student at Northeastern University . Thomas averred tha t he and Northeastern entered into a contract , which appears to have addressed the financial aid Thomas would receive towards the cost of tuition. Thomas subsequently withdrew from his courses. Documents attached to Thomas’ complaint reflect that Northea stern notified Thomas that he had an overdue balance of $2,591.00 and that a failure to pay his balance would result in the placement of his account with a collection agency, which would add collection costs in the amount of $863.67. Thomas did not pay hi s balance and a collection agency sent him a bill in the amount of $3454.67. Thomas brought claims against Northeastern for breach of contract and breach of a fiduciary duty owed “to calculate aid once [he] droped[sic] his classes

. ” Compl. at 4. The Dis trict Court reviewed Thomas’ complaint pursuant to 28 U.S.C. § 1915(e) and dismissed it , concluding that he failed to state claim for breach of fiduciary duty and that his remaining claim did not satisfy the amount in controversy requirement for diversity jurisdiction

. This appeal followed. The federal district courts have original diversity jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1). “T he sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim3 is really for less than the jurisdictional amount to justify dismissal.” Dardovitch v. Haltzman , 190 F.3d 125, 135 (3d Cir. 1999) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U.S. 283, 288

- 89 (1938)). Whether a claim is for less than the jurisdictional amount depends on what damages a plaintiff could recover under state law.
See Packard v. Provident Nat’l Bank , 994 F.2d 1039, 1046 (3d Cir. 1993) (considering whether punitive damages were recoverable under state law to determine if amount in controversy requirement was met).
T he District Court explained that the attachments to the complaint showed that the amount of compensatory damages at issue was at most $3,454.67 and that Thomas ha d not alleged facts supporting his claim for damages for emotional distress

. Although Thomas also claimed punitive damages, such damages are not recoverable under New Jersey law for breach of contract. Light ning L ube, Inc. v. Witco Corp. , 4 F.3d 1153, 1194 (3d Cir. 1993). Thus, Thomas’ breach of contract claim does not satisfy the amount in controversy requirement for diversity jurisdiction. Thomas also brought a claim for breach of fiduciary duty, for which punitive damages are recoverable under state law, but the District Court held that Thomas did not state a claim for such a breach because he and Northeastern do not have the requisite relationship of trust and confidenc e that gives rise to a fiduciary duty under New Jersey law. See F.G. v. MacDonell , 696 A.2d 697, 703

- 04 (N.J. 1997). W e have found no authority supporting the conclusion that No rtheastern owed Thomas a fiduciary duty4 under the circumstances of this case. Thus, this claim was properly dismissed pursuant to 28 U.S.C. § 1915(e)(2). The District Court also acted within its discreti on in declining to exercise any supplemental jurisdiction that may have been available. See 28 U.S.C. § 1367(c)(3). 1 According ly, because this appeal does not raise a substantial question, we will affirm the order of the District Court.

1 Although the District Court should give notice and an opportunity to be heard before dismissing a complaint for lack of jurisdiction, Neiderhis er v. Borough of Berwick , 840 F.2d 213, 216 n.6 (3d Cir. 1988), we find no impropriety here because, at the time Thomas filed his complaint, he was litigating the same jurisdictional issue in connection with a similar complaint he had filed in District Cou rt. See Thomas v. Nova Southeastern Univ. , D.N.J. Civ. No. 11

- cv - 02089. In addition, any opportunity to amend the complaint before dismiss al would have been futile. See Grayson v. Mayview , 293 F.3d 103, 111 (3d Cir. 2002). After filing his appeal, Thom as filed a motion in District Court for leave to amend his complaint. Thomas’ proposed amended complaint includes additional averments related to his breach of fiduciary duty claim, but these averments do not show a fiduciary relationship.