CLD-006                                                       NOT PRECEDENTIAL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
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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 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


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.
                                             2
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.
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       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.
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