CLD-007                                                         NOT PRECEDENTIAL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 Court
                               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 New Jersey dismissing his complaint against
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.
                                              4
