2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-13-2012

Thomas v. Nova Southeastern University

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3224

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Recommended Citation

"Thomas v. Nova Southeastern University" (2012). 2012 Decisions. Paper 1296.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1296
1

CLD-006 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3224

___________

JAY L. THOMAS,

Appellant

v.

NOVA SOUTHEASTERN UNIVERSITY;

JOHN DOES 1-10; XYZ CORP 1-10

(hereafter collectively the defendants)

____________________________________

Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civil No. 2-11-cv-02089)

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: March 13, 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 New Jersey dismissing his complaint against Nova 
2

Southeastern University. For the reasons that follow, we will affirm the judgment of the 

District Court.

Thomas alleged in his complaint that he was an online student at Nova 

Southeastern University for approximately ten days. Thomas stated that his enrollment 

agreement with Nova Southeastern provided for a tuition cost of $6,215.00, which was 

payable in the form of a student loan. Thomas further averred that, under the enrollment 

agreement, students shall receive a prorated refund of half the cost of tuition in the event 

of a withdrawal before the end of the sixth week of classes. Thomas stated that Nova 

Southeastern did not refund half the cost of his tuition, returned his loan proceeds to the 

lender, and charged him tuition in the amount of $7,768.75. Thomas brought claims 

against Nova Southeastern for breach of contract and violation of the Higher Education 

Act, 20 U.S.C. § 1070 et seq.

Nova Southeastern filed a motion to dismiss the complaint. Thomas then sought 

leave to file an amended complaint, in which he omitted his claim of a Higher Education 

Act violation and added a claim of breach of fiduciary duty.1

 1

Nova Southeastern initially filed a motion to dismiss the original complaint. In 

response, Thomas sought leave to file an amended complaint but failed to file his 

proposed complaint in District Court. Nova Southeastern, who had been served a copy of 

the proposed complaint, moved to dismiss it out of an abundance of caution. Thomas 

then sought leave to file another amended complaint, which he filed. The District Court 

considered the original complaint and the proposed amended complaint filed with the 

court.

 The District Court agreed 

with Nova Southeastern that Thomas failed to state a claim for breach of fiduciary duty 

and dismissed his remaining claim for lack of subject matter jurisdiction because Thomas 
3

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 

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 Thomas claimed that he was owed half his

tuition cost plus collection costs for a total of $4,551.25 in compensatory damages for 

breach of contract. Although he 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).2

 

 Thus, Thomas’ breach of contract claim does 

not satisfy the amount in controversy requirement for diversity jurisdiction.

2

The parties do not dispute the application of New Jersey law to Thomas’ claims.
4

Thomas also brought a claim for breach of fiduciary duty, for which punitive 

damages may be recovered under state law, but the District Court granted Nova 

Southeastern’s motion to dismiss this claim pursuant to Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim upon which relief may be granted. The District Court 

explained that Thomas and Nova Southeastern 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). Thomas has not cited, nor have we 

found, any authority supporting the conclusion that Nova Southeastern owed Thomas a

fiduciary duty under the circumstances of this case. Thus, this claim was properly 

dismissed.

The District Court correctly noted there is no basis for federal question 

jurisdiction. Thomas had initially claimed a violation of the Higher Education Act, but, 

as Thomas recognizes, he no longer seeks to pursue this claim. 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).

Accordingly, because this appeal does not raise a substantial question, we will 

affirm the order of the District Court.3

 3

Thomas’ motion to withdraw his appeal in order to file an amended complaint in District 

Court is denied. Our decision does not preclude Thomas from seeking relief from the 

judgment pursuant to Federal Rule of Civil Procedure 60(b) in order to amend his 

complaint.