CLD-007 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3225

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JAY L. THOMAS,

Appellant

v.

NORTHEASTERN UNIVERSITY

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Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civil No. 2-11-cv-03905)

District Judge: Honorable William J. Martini

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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)

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OPINION OF THE COURT

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PER CURIAM

Appellant Jay Thomas, proceeding pro se, appeals an order of the United States 

District Court for the District of New Jersey dismissing his complaint against 
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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 that 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 Northeastern 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 his 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 District 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). “The sum claimed by the plaintiff controls if the 

claim is apparently made in good faith. It must appear to a legal certainty that the claim 
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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). 

The 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 had 

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. Lightning Lube, 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 confidence 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). We have found no

authority supporting the conclusion that Northeastern owed Thomas a fiduciary duty 
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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 discretion in declining to exercise any 

supplemental jurisdiction that may have been available. See 28 U.S.C. § 1367(c)(3).1

Accordingly, 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, Neiderhiser 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 Court. See Thomas v. Nova 

Southeastern Univ., D.N.J. Civ. No. 11-cv-02089. In addition, any opportunity to amend 

the complaint before dismissal would have been futile. See Grayson v. Mayview, 293 

F.3d 103, 111 (3d Cir. 2002). After filing his appeal, Thomas 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.