1

[10-6243 (15); 11-914 (2, 5); 11-946 (2, 6); 11-954 (2, 6); 

11-956 (2, 6)]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

:

RESOLUTION MANAGEMENT :

CONSULTANTS, INC., and :

JEFFREY B. KOZEK, : Civil Action No.

: 10-6243 (RMB/AMD)

PlaintiffS, :

:

v. :

:

TERRENCE J. HICKEY and :

T. PATRICK BROYHILL, :

:

Defendants. :

:

 : 

:

:

RESOLUTION MANAGEMENT : Civil Action No.

CONSULTANTS, INC., : 11-914 (RMB/JS)

:

Plaintiff, :

:

v. :

:

T. PATRICK BROYHILL, :

:

Defendant. :

:

___________________________________:

:

JEFFREY B. KOZEK, : Civil Action No.

: 11-946 (RMB/JS)

Plaintiff, :

:

v. :

:

T. PATRICK BROYHILL, :

:

Defendant. :

___________________________________:

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 1 of 20 PageID: 563
2

 

:

:

JEFFREY B. KOZEK : Civil Action No.

: 11-954 (RMB/JS)

Plaintiff, :

:

v. :

:

TERRENCE J. HICKEY, :

:

Defendant. :

:

___________________________________:

:

:

RESOLUTION MANAGEMENT : Civil Action No.

CONSULTANTS, INC., : 11-956 (RMB/JS)

:

Plaintiff, :

:

v. :

: MEMORANDUM ORDER

TERRENCE J. HICKEY, :

:

Defendant. :

:

___________________________________:

Currently pending before the Court are nine motions in five 

separate but closely related civil actions. In the interest of 

judicial economy and efficiency, the Court considers these motions

together and issues this Order in each of the five cases.

The first motion was brought in Civil Action Number 10-6243 (the 

“Original Action”) by the defendants, Terrence J. Hickey and T. 

Patrick Broyhill, to vacate the plaintiffs’ voluntary dismissal of

the complaint under Federal Rule of Civil Procedure 41(a)(1)(A)(i). 

After filing the notice of dismissal, the plaintiffs in the Original 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 2 of 20 PageID: 564
3

Action - Resolution Management Consultants, Inc. (“RMC”) and its 

owner, Jeffrey B. Kozek (collectively the “Plaintiffs”) – each filed 

separate complaints against Hickey and Broyhill in state court. The 

defendants removed the complaints to federal court, alleging 

diversity jurisdiction under 28 U.S.C. § 1332(a). This resulted in 

four separate but related actions before this Court. [Civil Action 

Nos. 11-914, 11-946, 11-954, 11-956 (the “Related Actions”).] Hickey 

and Broyhill (the “Defendants”) then filed motions to dismiss for lack 

of jurisdiction in each of their respective cases. RMC and Kozek 

opposed the motions to dismiss and filed motions to remand, alleging 

that the defendant failed to show to a legal certainty the requisite 

amount in controversy. The Court will first address the motions to 

remand as it affects this Court’s jurisdiction over the 

above-captioned matters. For the following reasons, the Court denies 

Defendants’ motion to vacate the notice of dismissal in the Original 

Action and grants the motions to remand in the Related Actions. The 

Court therefore does not reach Defendants’ motions to dismiss, which 

will be denied as moot.

BACKGROUND

On September 27, 2010, Plaintiffs initiated the Original Action 

with the filing of a complaint in the Superior Court of New Jersey, 

Burlington County. The complaint alleged malicious prosecution and 

civil conspiracy, arising from an employment dispute which led to 

litigation in South Carolina state court. Hickey and Broyhill, former 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 3 of 20 PageID: 565
4

RMC employees, had sued Plaintiffs for the same torts of malicious 

prosecution and civil conspiracy now alleged against them.1

Plaintiffs opposed Defendants’ motion to dismiss and filed a 

motion to remand on the grounds that Defendants had failed to 

demonstrate the requisite amount in controversy. [Dkt. Ent. 4.] 

Before these motions were fully briefed, Plaintiffs filed a notice 

of voluntary dismissal pursuant to Federal Rule of Civil Procedure 

41(a)(1)(A)(i), which permits a plaintiff to dismiss an action 

without a court order where the opposing party has not yet filed an 

answer or a motion for summary judgment. The Clerk of Court 

accordingly closed this case. Defendants subsequently filed the 

instant motion to vacate dismissal and restore the case to the docket. 

Defendants removed the complaint in the Original Action to this Court, 

alleging diversity jurisdiction. [Civil No. 10-6243, Dkt. Ent. 1.] 

Defendants subsequently moved to dismiss the complaint for lack of 

personal jurisdiction, improper venue, or, alternatively, to 

transfer venue. [Dkt. Ent. 2.] 

 

1 Although Broyhill and Hickey’s separate claims were brought together in one 

lawsuit, the South Carolina Court of Common Pleas bifurcated the claims for trial. 

Hickey’s claims went to trial first in January 2010. At the close of Hickey’s case, 

the court directed a verdict, dismissing with prejudice all claims by Hickey against 

Kozek (and two other RMC principals) along with Hickey’s conspiracy claim against 

RMC. At the conclusion of his trial, a jury awarded Hickey a verdict against RMC 

for malicious prosecution in the amount of $5,691.38 in compensatory damages, the 

exact amount of unreimbursed attorney’s fees that Hickey had claimed. Broyhill’s 

claims were tried separately before a second jury. At the conclusion of Broyhill’s 

case, as it had done in Hickey’s case, the court directed a verdict, dismissing 

with prejudice all claims by Broyhill against the RMC principals along with 

Broyhill’s conspiracy claim against RMC. In stark contrast to Hickey’s verdict, 

the jury awarded Broyhill a verdict against RMC in the amount of $291,000, 

consisting of $140,000 in compensatory damages and $151,000 in punitive damages. 

Hickey and Broyhill appealed the dismissal of their malicious prosecution claims 

against the individual defendants and the civil conspiracy claim against RMC. RMC 

appealed the verdicts against it. The appeals are still pending. (Pl.’s Br. 3-4.)

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 4 of 20 PageID: 566
5

[Dkt. Ent. 15.] 

Subsequently, RMC and Kozek each filed two separate lawsuits in 

the Superior Court of New Jersey, Burlington County, against Hickey 

and Broyhill, respectively. Each complaint again alleged malicious 

prosecution and civil conspiracy. This time, however, each complaint 

limited the amount in controversy to “a total amount not to exceed 

$75,000.” Nevertheless, the defendant in each case again removed the 

complaint to this Court, asserting diversity jurisdiction pursuant 

to 28 U.S.C. § 1332(a), and then moved to dismiss for lack of 

jurisdiction. The plaintiff in each case again moved to remand, 

arguing that the court lacked federal subject matter jurisdiction, 

because the defendant had failed to prove to a legal certainty that 

the amount in controversy exceeds $75,000. These motions are now ripe 

for adjudication.

DISCUSSION

A. Motion to Vacate Plaintiffs’ Notice of Voluntary Dismissal

Plaintiffs voluntarily dismissed the complaint in the Original 

Action pursuant to Rule 41(a)(1)(A)(i), which permits a plaintiff to 

dismiss an action without a court order by filing “a notice of 

dismissal before the opposing party serves either an answer or a 

motion for summary judgment.” Id. (emphasis added).

Defendants concede that they neither filed an answer nor a motion 

for summary judgment prior to Plaintiffs’ voluntary dismissal. They 

argue instead that their motion to dismiss should be treated as the 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 5 of 20 PageID: 567
6

equivalent of a motion for summary judgment in light of the record 

that has been compiled in the briefing of the remand and 

dismissal/transfer motions. They also argue that letting Plaintiffs 

voluntarily dismiss the complaint would allow them to improperly 

manipulate this Court in order to defeat federal subject matter 

jurisdiction. (Defs.’ Moving Br. 7.) 

Plaintiffs respond that Defendants’ argument runs contrary to 

the express language of Rule 41 and the binding case law that 

interprets it. (Opp. Br. 1.) They argue, correctly, that the filing 

of a notice of voluntary dismissal automatically dismisses the 

complaint, and a motion to dismiss under Rule 12 does not make such 

a notice untimely. They contend that this rule is “especially true” 

here, where the plaintiffs filed the notice of dismissal before the 

Court even ruled on the defendants’ motion to dismiss and thus the 

Court never considered the merits of the complaint and did not hear 

any testimony. Id. (citing In re Bath & Kitchen Fixtures Antitrust 

Litig., 535 F.3d 161, 165-66 (3d Cir. 2008)). 

In In re Bath & Kitchen Fixtures, the Third Circuit Court of 

Appeals set forth three key aspects of Rule 41(a)(1)(A)(i), which

control this analysis:

First, a filing under the Rule is a notice, not a motion. 

Its effect is automatic: the defendant does not file a 

response, and no order of the district court is needed to 

end the action. Second, the notice results in a dismissal 

without prejudice (unless it states otherwise), as long as 

the plaintiff has never dismissed an action based on or 

including the same claim in a prior case. Third, the 

defendant has only two options for cutting off the 

plaintiff’s right to end the case by notice: serving on the 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 6 of 20 PageID: 568
7

plaintiff an answer or a motion for summary judgment.

535 F.3d at 165 (reversing order vacating notice of voluntary 

dismissal and remanding to trial court with instructions to dismiss 

action without prejudice). Accordingly, Rule 41(a)(1)(A)(i) creates

a bright-line test that limits the plaintiff’s right of dismissal to 

the early stages of litigation; this “simplifies the court’s task by 

telling it whether a suit has reached the point of no return. If the 

defendant has served either an answer or a summary judgment motion 

it has; if the defendant has served neither, it has not.” Id. at 165 

(citing Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065 (3d Cir. 

1987) (quoting Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 

(7th Cir. 1983)). The Third Circuit stressed:

Up to the “point of no return,” dismissal is automatic and 

immediate - the right of a plaintiff is “unfettered.” A 

timely notice of voluntary dismissal invites no response 

from the district court and permits no interference by it. 

A proper notice deprives the district court of jurisdiction 

to decide the merits of the case.

In re Bath & Kitchen Fixtures, 535 F.3d at 165-66 (internal citations 

omitted).

Here, Defendants filed a motion to dismiss under Rules 12(b)(2) 

and (3) and, in the alternative, a motion to transfer venue under 28 

U.S.C. § 1404(a). This is not an answer or a motion for summary 

judgment, and the Court never converted it into such. Thus, 

Defendants’ motion to dismiss did not terminate Plaintiffs’ right to 

dismiss by notice. Id. at 166 (“Only when a motion filed under Fed. 

R. Civ. P. 12(b)(6) is converted by the district court into a motion 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 7 of 20 PageID: 569
8

for summary judgment does it bar voluntary dismissal.”). Under the 

unambiguous language of Rule 41(a)(1)(A)(i) and the binding case law 

interpreting it, such a motion to dismiss does not interfere in any 

way with a plaintiff’s right to voluntarily dismiss a claim. Id.; 

Manze, 817 F.2d at 1066 (rejecting defendant’s argument that motion 

to dismiss was “equivalent” to motion for summary judgment and thus 

should have barred plaintiff’s dismissal by notice). Accordingly, 

Plaintiffs’ notice of dismissal was proper and automatically 

dismissed this case.

Defendants nevertheless urge the Court to vacate Plaintiffs’ 

notice of dismissal, relying solely on an outdated case from another 

circuit that was based upon a unique procedural history not present 

in this case. (Defs.’ Moving Br. 2, 6-7 (citing Harvey Aluminum, Inc. 

v. Am. Cyanamid Co., 203 F.2d 105 (2d Cir. 1953), cert. den’d, 345 

U.S. 964 (1953) (preliminary injunction motion treated as answer or 

motion for summary judgment for purposes of dismissal rule).) In 

Harvey Aluminum, the Second Circuit reversed the trial court’s order 

denying the defendant’s motion to vacate the plaintiff’s notice of 

voluntary dismissal. In that case, the plaintiff had filed its notice 

under Rule 41, following a lengthy preliminary injunction hearing on 

the merits of the plaintiff’s claims. Id. at 107-08. The Second 

Circuit concluded that the preliminary injunction proceedings had 

progressed to such an advanced stage that a notice of dismissal at 

that point was improper. Id. The Second Circuit stressed that the 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 8 of 20 PageID: 570
9

preliminary injunction hearing had required several days of argument 

and testimony, yielding a record of some 420 pages, and the district 

court had already squarely addressed the merits of the case. Id.

The decision in Harvey Aluminum is easily distinguishable from 

the case at bar. Here, Defendants’ motion sought to dismiss the

complaint for lack of personal jurisdiction and improper venue before

reaching the merits of the claims. The Court had not heard oral 

argument or testimony on any matter related to this case and had not 

yet considered Defendants’ motion, which was not yet ripe for 

adjudication. Thus, the proceedings in this case never approached the 

advanced stage of the Harvey Aluminum case, and the matter required 

minimal investment of this Court’s time and resources. Accordingly, 

Harvey Aluminum is inapplicable to the facts and procedural history 

of this case.

Moreover, the Third Circuit has expressly noted that Harvey 

Aluminum has been “criticized for blurring the Rule’s ‘bright-line’ 

timing test, and it has been distinguished when appropriate.” In re 

Bath & Kitchen Fixtures, 535 F.3d at 167, n.10. The Third Circuit 

acknowledged the potential unfairness of this bright-line rule, 

noting that it “may permit a strategic advantage for a plaintiff: if 

prospects for prevailing on the merits appear dim, the plaintiff can 

obtain a dismissal without prejudice after imposing high costs on 

defendants and judges.” Id. at 166. The Court concluded, however, that

“Rule 41 provided for only two responses - answer and motion for 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 9 of 20 PageID: 571
10

summary judgment - as points of no return. It would be improper to 

graft a new category onto the literal text of the Rule.” Id. (internal 

quotations and citations omitted). Accordingly, this Court has no 

basis to vacate Plaintiffs’ timely notice of dismissal. Defendants’ 

motion to vacate this dismissal is therefore denied.

B. Motions to Remand

Jurisdiction based on diversity exists if the amount in 

controversy exceeds $75,000 and the suit is between citizens of 

different states. 28 U.S.C. § 1332(a)(1). Since Defendants seek to 

bring the Related Actions before this Court, they bear the burden of

proving that subject matter jurisdiction pursuant to § 1332 is proper. 

Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); 

Samuel-Bassett v. Kia Motors America, Inc., 357 F.3d 392, 398 (3d Cir. 

2004). Factual questions or disputes involving the amount in 

controversy are to be resolved by the Court under the preponderance 

of the evidence standard. Frederico, 507 F.3d at 194 (under the 

Supreme Court’s McNutt standard, the party alleging jurisdiction must 

“justify his allegation by a preponderance of evidence.”) (citing 

McNutt v. General Motors Acceptance Corp. Of Indiana, 298 U.S. 178 

(1936)); see also Samuel Bassett, 357 F.3d at 398. In other words, 

a defendant seeking removal must prove to a reasonable probability 

that jurisdiction exists. 

Where the relevant facts as to the amount in controversy are not 

in dispute or findings have been made, the Court must then apply the 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 10 of 20 PageID: 572
11

legal certainty test established in St. Paul Mercury Indemnity 

Company v. Red Cab Company, 303 U.S. 283 (1938). Frederico, 507 F.3d 

at 194. Under the Red Cab test, “a case must be dismissed or remanded 

if it appears to a legal certainty that the plaintiff cannot recover 

more than the jurisdictional amount of $75,000.” Id. at 195 (emphasis 

added) (internal citation and quotations omitted). Where the 

plaintiff has strategically limited its claim to avoid federal 

jurisdiction, as RMC and Kozek have done here, the burden shifts to 

the removing party to show to a legal certainty that the amount in 

controversy exceeds the statutory threshold. Frederico, 507 F.3d at 

196 (explaining Morgan v. Gay, 471 F.3d 469 (3d Cir. 2006)).

Clearly then, before this Court can engage in the above 

jurisdictional analysis, it must have all the necessary facts to do 

so. Initially, the Court’s determination of the amount in controversy 

in a removal case “begins with a reading of the complaint filed in 

the state court.” Samuel-Bassett v. Kia Motors America, Inc., 357 F.3d 

392, 398 (3d Cir. 2004). However, a plaintiff’s pleadings are not 

dispositive under the legal certainty test; even where a plaintiff 

has limited her claims below the jurisdictional amount, the Court must 

still inquire into whether the “actual monetary demands in the 

aggregate exceed the threshold.” Morgan, 471 F.3d at 474-75. As part 

of this inquiry, the Court also examines the defendant’s notice of 

removal. Id. at 474; Frederico, 507 F.3d at 197 (“[T]o determine 

whether the minimum jurisdictional amount has been met in a diversity 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 11 of 20 PageID: 573
12

case removed to a district court, a defendant’s notice of removal 

serves the same function as the complaint would if filed in the 

district court.” (internal citations omitted)).

Here, the complaint in each of the Related Actions contains an 

ad damnum clause, limiting damages to “a total amount not to exceed 

$75,000.” In their notices of removal, the defendants do not dispute

that a plaintiff may limit her claims to an amount below the 

jurisdictional minimum, and that when this occurs, the removing 

defendant must show to a legal certainty that the amount in 

controversy exceeds the statutory threshold. Instead, Defendants 

argue that the amount in controversy exceeds $75,000 because the 

Plaintiffs improperly splintered the Original Action into four 

separate actions merely to avoid federal subject matter jurisdiction. 

They contend that this was an act of bad faith, and thus this Court 

should disregard such splintering when determining diversity 

jurisdiction. (Opp. Br. 10-11.) 

Defendants further argue that each plaintiff has improperly 

splintered its claims against Hickey and Broyhill who are jointly and 

severally liable,2

 

2 Black’s Law Dictionary defines “joint and several liability” as the following:

and thus the damages alleged against each must be 

aggregated to determine the true amount in controversy. (Opp. Br. 7, 

12 (citing Jewel v. Grain Dealers Mutual Ins. Co., 290 F.2d 11 (5th 

Liability that may be apportioned either among two or more parties or to only 

one or a few select members of the group, at the adversary’s discretion. Thus, 

each liable party is individually responsible for the entire obligation, but 

a paying party may have a right of contribution and indemnity from nonpaying 

parties.

Black’s Law Dictionary 933 (9th ed. 2009).

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 12 of 20 PageID: 574
13

Cir. 1961); Golden v. Golden, 382 F.3d 348, 355 (3d Cir. 2004); Freeman

v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th Cir. 2008)). 

Defendants reason that because each of the complaints seeks damages 

“not to exceed $75,000” from both Hickey and Broyhill separately, when 

aggregated, each plaintiff asserts claims against both defendants for 

an amount “not to exceed” $150,000. They contend that this aggregate 

amount exceeds the jurisdictional threshold of $75,000.3

The Court finds these arguments unpersuasive. As an initial 

matter, Defendants ignore the well-settled principle that a plaintiff 

is master of her complaint and may avoid federal subject matter 

jurisdiction if she is willing to limit her damages. Morgan v. Gay, 

471 F.3d 469, 474 (3d Cir. 2006) (citing St. Paul Mercury Indem. Co. 

v. Red Car Co., 303 U.S. 283, 294 (1938) (“If [the plaintiff] does 

not desire to try his case in the federal court he may resort to the 

expedient of suing for less than the jurisdictional amount, and though 

he would be justly entitled to more, the defendant cannot remove.”). 

Moreover, the plaintiff “is in the best position to know how much his 

claim is worth, and we deem a plaintiff’s request for damages to have 

been made in good faith.” Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 

(7th Cir. 1993); Faracchao v. Harrah’s Entm’t, Inc., Civ. Action No. 

06-1364, 2006 WL 2096076, *1 (D.N.J. Jul. 27, 2006) (citing Shaw).

(Opp. Br. 

11, 14.)

 

3 Defendants erroneously argue that Plaintiffs “have each plead damages not to 

exceed $75,000 from Hickey and Broyhill on each of the two causes of action[.]” 

(Opp. Br. 11 (emphasis added).) Each complaint states, however, that the plaintiff 

seeks a “total amount not to exceed $75,000”, clearly for both the malicious 

prosecution and civil conspiracy claims. (See Compl., Ntc. Rmvl. Ex. 3.) The Court 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 13 of 20 PageID: 575
14

Although Defendants have accused Plaintiffs of bad faith by pleading 

damages below the jurisdictional amount despite knowing the claim is 

worth more, Defendants have provided no evidence to support this 

allegation. Thus, it appears RMC and Kozek have properly limited their 

respective damages in order to avoid federal jurisdiction.

Furthermore, Defendants have pointed to no case law, which would 

require the Court to consolidate these actions and aggregate 

Plaintiffs’ claims in order to reach the requisite amount in 

controversy.4 Even if Hickey and Broyhill were jointly and severally

liable, as Defendants contend, this fact does not require Kozek or 

RMC to sue them together in a single cause of action.5

 

thus rejects this portion of Defendants’ aggregation argument.

See, e.g., 

S.E.C. v. J.W. Barclay & Co., 442 F.3d 834, 843 (3d Cir. 2006) (quoting 

United States v. Gregg, 226 F.3d 253, 260 (3d Cir. 2000) (“A liability 

is joint and several when ‘the creditor may sue one or more of the 

parties to such liability separately, or all of them together, at his 

[or her] option.’”). Indeed, even if the Related Actions were 

4 In their notices of remand, Defendants argue that Plaintiffs improperly 

splintered the Original Action contrary to “New Jersey rules of civil procedure 

and the ‘entire controversy doctrine.’” (Ntc. Rmvl. ¶ 12(a)). As Plaintiffs 

correctly note, Defendants cite to outdated case law and ignore the 1998 amendment 

to New Jersey Court Rule 4:30A, which eliminated mandatory party joinder under the 

entire controversy doctrine. See Pl’s Moving Br. 10; see generally Schneider v. 

United States, Civ. No. 06-3200, 2008 WL 408420, *3 (D.N.J. Feb. 18, 2008). Notably, 

Defendants abandoned this argument in their opposition papers, and thus the Court 

deems the point conceded. 

5 Notably, Defendants have not shown that they should be held jointly and severally 

liable for all of Plaintiffs’ damages. Defendants have only argued that the “torts 

of malicious prosecution and civil conspiracy impose joint and several liability” 

and that the plaintiffs have sued Hickey and Broyhill for conspiring with one 

another. Defendants have ignored the fact that Hickey and Broyhill’s claims against 

Plaintiffs were bifurcated by the South Carolina trial court, and thus Hickey and 

Broyhill’s liability for malicious prosecution in the Related Actions arise from 

their separate trials. Since the Court grants Plaintiffs’ motions to remand on other 

grounds, it need not inquire further into this issue.

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 14 of 20 PageID: 576
15

consolidated, Defendants have failed to show that each plaintiff

would be required to aggregate its claims against Hickey and Broyhill 

for purposes of establishing diversity jurisdiction. (Opp. Br. 7 

(citing Golden v. Golden, 382 F.3d 348, 355 n.5 (3d Cir. 2004), 

superseded on other grounds by Marshall v. Marshall, 547 U.S. 293 

(2006) (noting that several circuit courts have held that where a 

plaintiff has sued multiple defendants on the theory that they share 

liability, the plaintiff is “permitted to ‘aggregate’ his or her 

claims against the multiple defendants to meet the statutory 

requirement”) (emphasis added); Jewel v. Grain Dealers Mutual 

Insurance Co., 290 F.2d 11 (5th Cir. 1961) (“Claims against two or 

more defendants can be aggregated for the purpose of attaining the 

jurisdictional amount . . . if they are jointly liable to the 

plaintiff.”) (emphasis added)). Notably, the Third Circuit has never 

decided whether such aggregation is permissible. Golden, 382 F.3d at 

355 n.5.

Furthermore, Defendants’ reliance on Freeman v. Blue Ridge Paper 

Products, Inc., 551 F.3d 405 (6th Cir. 2008), to support its 

aggregation argument is misplaced. In Freeman, the Sixth Circuit held 

that where the plaintiffs had divided up identical class action suits

for no colorable reason other than to avoid federal subject matter 

jurisdiction under CAFA and to expand recovery in state court, the 

claims should be combined for purposes of determining the amount in 

controversy. Id. at 409. The Freeman court expressly limited its 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 15 of 20 PageID: 577
16

holding to CAFA cases. Id. (“Our holding is limited to the situation 

where there is no colorable basis for dividing up the sought-for 

retrospective relief into separate time periods, other than to 

frustrate CAFA.”). The court reasoned:

If such pure structuring permits class plaintiffs to avoid 

CAFA, then Congress’s obvious purpose in passing the 

statute – to allow defendants to defend large interstate 

class actions in federal court – can be avoided almost at 

will, as long as state law permits suits to be broken up 

on some basis.” 

Id. at 407. Thus, Freeman clearly does not apply to the non-CAFA case 

at bar.

Moreover, Defendants rely on flawed logic in assuming that 

aggregation of Hickey’s and Broyhill’s claims equals a sum “not to

exceed” $150,000, which amounts to more than the $75,000

jurisdictional threshold of § 1332. If a plaintiff sues one defendant 

for less than $75,000 and another defendant for less than $75,000, 

the aggregate amount in controversy is not necessarily greater than

$75,000. The claims in each case could easily amount to only $37,000, 

which, when combined, equal only $74,000 and thus fall below the 

jurisdictional minimum.

Indeed, a review of the complaints and notices of removal in the 

Related Actions causes this Court to seriously doubt whether the 

amount in controversy would exceed the jurisdictional minimum even 

if this Court aggregated each of the plaintiff’s claims against Hickey 

and Broyhill. As observed, the complaints expressly limit damages to 

“a total amount not to exceed $75,000.” The Court deems the 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 16 of 20 PageID: 578
17

plaintiff’s request for damages to have been made in good faith. See

supra. As is proper under the New Jersey Court Rules, the complaints

in the Related Actions do not plead a specific amount of monetary 

damages. N.J. Ct. R. 4:5-2 (2011) (“If unliquidated money damages are 

claimed in any court, other than the Special Civil Part, the pleading 

shall demand damages generally without specifying the amount.”). 

However, Defendants could have obtained this information through a

procedural mechanism designed for this very purpose. New Jersey Court 

Rule 4:5-2 provides:

Upon service of a written request by another party, the 

party filing the pleading shall within 5 days after service 

thereof furnish the requesting party with a written 

statement of the amount of damages claimed . . . .

It appears Defendants never requested a statement of damages from 

Plaintiffs, since they did not submit any such documentation to the 

Court. 

Instead, Defendants rely on an affidavit from Stanley E. 

Barnett, Esquire, the attorney who represented Hickey and Broyhill 

in the South Carolina litigation against Plaintiffs. (Barnet Aff., 

Ntc. Rmvl. Ex. 4.) Barnett notes that attorney’s fees and expenses 

are damages recoverable for malicious prosecution. He then uses his 

own billing records from the South Carolina litigation to estimate 

the attorney’s fees and costs that RMC and Kozek may recover in the 

instant suits for defending themselves against the malicious 

prosecution and civil conspiracy claims previously asserted by Hickey 

and Broyhill. Barnett concludes that Kozek’s total claim against 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 17 of 20 PageID: 579
18

Hickey and Broyhill for attorney’s fees and costs is approximately 

$18,025 ($16,800 in attorney’s fees plus $1,225 (half of $2,450) for 

costs, such as travel associated with trial). (Barnett Aff. ¶¶ 12-13.) 

Barnett estimates that RMC’s claim for the same is approximately 

$2,905 ($1,680 in legal fees plus $1,225 for costs associated with 

trial). (Id.) Barnett also acknowledges the unpredictability of a 

verdict for compensatory and punitive damages, citing to the 

disparity in the damage awards to Hickey and Broyhill at trial. 

(Barnett Aff. ¶¶ 14-16.) Hickey won a jury award on his malicious 

prosecution claim for only $5,691.38, the exact amount of 

unreimbursed attorney’s fees that he had claimed, whereas Broyhill, 

who arguably had a weaker case than Hickey, won a verdict for $140,000 

in compensatory damages and $151,000 in punitive damages. (Pl.’s 

Moving Br. 3-4.) The inexplicable disparity between these verdicts 

underscores the futility of trying to predict a jury verdict in a case 

such as this. Kozek, like Hickey, may very easily obtain a jury award 

limited to recovery of attorney’s fees and costs, approximately 

$18,025. RMC may obtain a similar jury award for only $2,905. On the 

other hand, Kozek and RMC may instead win large awards for 

compensatory and punitive damages, like Broyhill. Thus, the amount 

in controversy may fall well below or above the jurisdictional 

threshold. Such doubt must be resolved in favor of remand. 

The Third Circuit has cautioned that § 1441 must be strictly 

construed against removal “so that the Congressional intent to 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 18 of 20 PageID: 580
19

restrict federal diversity jurisdiction is honored.” Samuel-Bassett 

v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004) (internal 

citations omitted); Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 

29 (3d Cir. 1985) (“Because lack of jurisdiction would make any decree 

in the case void and the continuation of the litigation in federal 

court futile, the removal statute should be strictly construed and 

all doubts should be resolved in favor of remand.”) (internal 

citations omitted). Thus, a removing party must provide more than mere 

speculation or tenuous inferences about the amount in controversy to 

satisfy its burden. Russ v. Unum Life Ins. Co., 442 F. Supp. 2d 193, 

198 (D.N.J. 2006) (“[M]ere speculation that a claim will exceed the 

jurisdictional amount is not enough to confer jurisdiction.”); 

Valerio v. Mustabasic, Civ. No. 07-534, 2007 WL 2769636, *4 (D.N.J. 

Sept. 21, 2007). In other words, “if this Court has to guess” at 

whether the jurisdictional threshold has been met, then the

“defendant has not proved its point.” Valerio, 2007 WL 2769636 at *4

(internal citations omitted).

Defendants carry a particularly heavy burden in this case, where 

each complaint expressly limits the amount in controversy below the 

jurisdictional amount. As discussed above, this Court has serious 

doubts as to whether the amount in controversy exceeds the statutory 

minimum, even if each plaintiff aggregated its claims against the 

defendants. Such doubt warrants a remand. Indeed, the speculation and 

tenuous inferences on which Defendants rely fall far short of 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 19 of 20 PageID: 581
20

establishing to a legal certainty that the amount in controversy 

exceeds $75,000. This Court therefore lacks jurisdiction over the 

Related Actions and grants Plaintiffs’ motions to remand.

ACCORDINGLY, IT IS on this 29th day of June 2011, hereby:

ORDERED that Defendants’ motion to vacate Plaintiffs’ voluntary 

dismissal in the Original Action [Civ. No. 10-6243, Dkt. Ent. 15] is 

DENIED; and it is further

ORDERED that the plaintiff’s motion to remand in each of the 

Related Actions shall be GRANTED [Dkt. Ent. 5 in Civ. No. 11-914; Dkt. 

Ent. 6 in Civ. Nos. 11-946, 11-954, 11-956]; and it is further

ORDERED that each of the Related Actions shall be REMANDED to 

the Superior Court of New Jersey, Burlington County; and it is further

ORDERED that the defendant’s motion to dismiss for lack of 

jurisdiction in each of the Related Actions is DISMISSED AS MOOT [Dkt. 

Ent. 2 in Civ. Nos. 11-914, 11-946, 11-954, 11-956]; and it is finally

ORDERED that the Clerk of the Court shall CLOSE the file in each 

of the Related Actions [Civ. Nos. 11-914, 11-946, 11-954, 11-956].

s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE 

Case 1:11-cv-00956-RMB-JS Document 19 Filed 06/29/11 Page 20 of 20 PageID: 582