436 F.3d 335 (2nd Cir. 2006), 05-2733, Gottlieb v. Carnival Corp.

Docket Nº:05-2733 CV.
Citation:436 F.3d 335
Party Name:Sherman GOTTLIEB, Plaintiff-Appellant, v. CARNIVAL CORPORATION, Defendant-Appellee.
Case Date:February 03, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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436 F.3d 335 (2nd Cir. 2006)

Sherman GOTTLIEB, Plaintiff-Appellant,

v.

CARNIVAL CORPORATION, Defendant-Appellee.

No. 05-2733 CV.

United States Court of Appeals, Second Circuit.

February 3, 2006

Argued: Dec. 19, 2005.

Plaintiff-appellant Sherman Gottlieb appeals from a judgment of the United States District Court for the Eastern District of New York dismissing his claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227, for lack of subject matter jurisdiction and dismissing his parallel state law claims under New York General Business Law § 396-aa for lack of supplemental jurisdiction. We hold that federal courts have diversity jurisdiction over private causes of action brought under § 227.

Andre K. Cizmarik (Anthony J. Viola, on the brief), Edwards Angell Palmer & Dodge LLP, New York, NY, for Plaintiff-Appellant.

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Joseph J. Saltarelli, Hunton & Williams LLP, New York, NY, for Defendant-Appellee.

Before: OAKES, SOTOMAYOR, and WESLEY, Circuit Judges.

SOTOMAYOR, Circuit Judge:

This case presents the question of whether federal courts have diversity jurisdiction over private causes of action brought under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Plaintiff-appellant Sherman Gottlieb ("Gottlieb") appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.), entered on May 3, 2005, dismissing his claims under the TCP A for lack of subject matter jurisdiction and dismissing his parallel state law claims for lack of supplemental jurisdiction. Relying primarily on this Court's decision in Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432 (2d Cir. 1998), where we held that Congress intended to divest the federal courts of federal question jurisdiction over private TCPA claims, the district court concluded that "jurisdiction over TCPA claims resides in the state courts exclusively" and that federal courts lack diversity jurisdiction over such claims. Gottlieb v. Carnival Corp., 367 F.Supp.2d 301, 307 (E.D.N.Y. 2005). The district court reasoned that "it must be assumed that [the Second Circuit] used its words carefully and advisedly" when we stated in Foxhall that state courts have "exclusive jurisdiction" over TCPA claims. Id. at 309. Our ruling in Foxhall, however, related only to the existence of federal question jurisdiction over private TCPA claims; we did not consider in that case whether federal courts have diversity jurisdiction over such claims.1 We hold here that Congress did not divest the federal courts of diversity jurisdiction over private actions under the TCPA. We thus vacate the judgment of the district court and remand the case for further proceedings.

BACKGROUND

The following facts are taken from Gottlieb's complaint.

Gottlieb is a travel agent who works from his home in Staten Island, New York. In connection with his work, he has a fax machine associated with two telephone numbers. Between early 2001 and 2004, Gottlieb received, via his fax machine, over 1000 unsolicited advertisements from Carnival Corporation ("Carnival"), a company organized under the laws of Panama and having its principal place of business in Florida. Gottlieb continued receiving faxes from Carnival even though he sent Carnival written instructions, via facsimile, requesting that they cease sending him unsolicited advertisements. He also contacted the telephone number listed on those advertisements to request that his fax numbers be removed from Carnival's list. In 2002, Carnival began including the following language on the bottom of its faxes: "Carnival does not endorse nor authorize the practice of blast faxing or unsolicited faxing of any materials promoting Carnival or its products."

In Count One of his complaint, 2 Gottlieb seeks statutory damages of $500 under the

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TCPA for each of the approximately 1000 unsolicited fax advertisements he received from Carnival. In Count Two, he alleges that Carnival acted "knowingly and willfully" and seeks treble damages for each statutory violation. In Count Three, he seeks injunctive relief under the TCPA. Finally, in Count Four, Gottlieb seeks statutory damages of $100 for each fax sent by Carnival in violation of New York General Business Law § 396-aa, a parallel New York statute.

DISCUSSION

The TCPA prohibits, inter alia, the "use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement" absent certain conditions not present here. 47 U.S.C. § 227(b)(1)(C). Section 227(b)(3) provides a private right of action under the statute and states that "[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" an action for injunctive relief or damages. Section 227(b)(3) further establishes damages of $500 for each violation of the statute and treble damages if the defendant violates the statute "willfully or knowingly."

This Court concluded in Foxhall that state courts have "exclusive" jurisdiction over private actions under the TCPA and held that, pursuant to 28 U.S.C. § 1331, federal courts lack federal question jurisdiction over such claims. 156 F.3d at 435. We emphasized in Foxhall the language of § 227(b)(3) providing that a person "may" bring an action in state court. Central to our reasoning was the fact that state courts are courts of general jurisdiction, and therefore no express grant of jurisdiction is required to confer concurrent jurisdiction on state and federal courts. Id. By contrast, "federal courts are courts of limited jurisdiction which thus require a specific grant of jurisdiction." Id. We reasoned that the permissive authorization in the statute extending only to courts of general jurisdiction was significant. In order to give effect and meaning to every provision of the statute, we joined several other federal courts of appeals and held that "Congress intended to confer exclusive state court jurisdiction over private rights of action under the TCPA." Id. In brief, we concluded that the statutory language constituted a specific expression of congressional intent that trumped the more general grant of federal question jurisdiction in § 1331. Id. at 436.

We did not consider in Foxhall whether Congress intended that federal courts have diversity jurisdiction over private TCPA claims. Our discussion of "exclusive jurisdiction" in Foxhall must be read in context. Foxhall dealt only with federal question jurisdiction; diversity jurisdiction was not raised in Foxhall.3 Our ruling in Foxhall thus does not govern the resolution of this case.

This case presents a question of statutory construction. Statutory analysis begins with the text and its plain meaning, if it has one. See Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001). If a statute is ambiguous, we resort to the canons of statutory construction to help resolve the ambiguity. Id.

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Finally, "[w]hen the plain language and canons of statutory interpretation fail to resolve statutory ambiguity, we will resort to legislative history." United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000).

Nothing in § 227(b)(3), or in any other provision of the statute, expressly divests federal courts of diversity jurisdiction over private actions under the TCPA. Because the statute is ambiguous, however, we consider the two canons of statutory construction that are most helpful to our interpretation of the TCPA. First, when determining the meaning of a statutory provision, "the text should be placed in the context of the entire statutory structure." Natural Res. Def. Council, 268 F.3d at 98. "[A] statute is to be considered in all its parts when construing any one of them." Dauray, 215 F.3d at 262 (citation and internal quotation marks omitted; alteration in original). "Normally, a statute must, if reasonably possible, be construed in a way that...

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