362 F.Supp.2d 1248 (D.Colo. 2005), Civ. 04-B-344, United States Fax Law Center, Inc. v. iHire, Inc.
|Docket Nº:||Civ. 04-B-344|
|Citation:||362 F.Supp.2d 1248|
|Party Name:||United States Fax Law Center, Inc. v. iHire, Inc.|
|Case Date:||March 28, 2005|
|Court:||United States District Courts, 10th Circuit, District of Colorado|
Frank J. Ball, Frank J. Ball, Law Offices, Greenwood Village, CO, for Plaintiff.
Kenneth Kent Skogg, Brandee L. Caswell, Lowe, Fell & Skogg, LLC, Denver, CO, for Defendants.
MEMORANDUM OPINION AND ORDER
BABCOCK, Chief Judge.
A hearing in this matter took place on March 16, 2005. This is an action removed from Colorado state court under diversity jurisdiction. Plaintiff, U.S. Fax Law Center ("Plaintiff" or "USFLC"), an "assignee," alleges that Defendants iHire and persons employed by or otherwise related to iHire ("Defendants") sent 143 "junk faxes" to various commercial entities, "assignors," in violation of both the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., and the Colorado Consumer Protection Act ("CCPA"), C.R.S. § 6-1-101 et seq.
Plaintiff seeks statutory damages in the amount of $151,0000, plus an additional amount of three times the statutory damages to the extent that willful, knowing, and/or bad-faith violations are shown, plus attorney fees, for a total of $478,000 plus costs. Plaintiff further seeks injunctive relief preventing Defendants from continuing to send "junk faxes." Plaintiff also brings a common-law claim for invasion of privacy. Additionally, although not associated with this motion, Plaintiff brings Colorado common-law claims for negligence, trespass, and conversion, all based on the same facts underlying the TCPA/CCPA claim.
The issue before me is whether to certify two "outcome-determinative" questions of law to the Supreme Court of Colorado. First, are claims for statutory damages under the TCPA assignable under Colorado law? Second, in view of the fact that the CCPA was amended by House Bill 04-1125 during the 2004 Regular Session of the Colorado General Assembly, with the amendments taking effect on August 4, 2004, see C.R.S. § 6-1-702, was there a private right of action in Colorado under the TCPA prior to the effective date of the amendments? Because the first question can be answered "no" under settled law, and because this answer defeats Plaintiff's claim of standing so I need not answer the second question, I will deny the motion to certify.
Defendants do not contest the motion to certify these questions. However, they filed a substantive motion to clarify and correct what they perceive as Plaintiff's failure to fully and accurately characterize the issues. They also filed a motion to dismiss, which is fully briefed, ripe, and properly before me, from which I glean arguments and law relevant to this Order.
Colorado Appellate Rule 21.1(a) states:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, or the United States Court of Claims, when requested by the certifying court, if there is involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court.
47 U.S.C. 227(b)(3) (the TCPA, "Private Right of Action") states:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.
If the court finds that the defendant willfully or knowingly violated this...
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