656 F.3d 440 (6th Cir. 2011), 10-3390, Charvat v. NMP, LLC

Docket Nº:10-3390.
Citation:656 F.3d 440
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:Philip J. CHARVAT, Plaintiff-Appellant, v. NMP, LLC, a Delaware Limited Liability Company; Media Synergy Group, LLC, a Virginia Limited Liability Company, Defendants-Appellees.
Attorney:John W. Ferron, Lisa A. Wafer, Ferron & Associates, Columbus, Ohio, for Appellant. James B. Hadden, Eric B. Gallon, Anthony R. McClure, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, for Appellees.
Judge Panel:Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges. MOORE, J., delivered the opinion of the court, in which GUY, J., joined. BATCHELDER, C.J. (pp. 455-56), delivered a separate opinion concurring in the judgment. ALICE M. BATCHELDER, Chief Judge, concurring in the judgment.
Case Date:August 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 440

656 F.3d 440 (6th Cir. 2011)

Philip J. CHARVAT, Plaintiff-Appellant,

v.

NMP, LLC, a Delaware Limited Liability Company; Media Synergy Group, LLC, a Virginia Limited Liability Company, Defendants-Appellees.

No. 10-3390.

United States Court of Appeals, Sixth Circuit.

August 30, 2011

Page 441

[Copyrighted Material Omitted]

Page 442

ON BRIEF:

John W. Ferron, Lisa A. Wafer, Ferron & Associates, Columbus, Ohio, for Appellant.

James B. Hadden, Eric B. Gallon, Anthony R. McClure, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, for Appellees.

Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which GUY, J., joined. BATCHELDER, C.J. (pp. 455-56), delivered a separate opinion concurring in the judgment.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Philip Charvat alleges that Defendants-Appellees NMP, LLC and Media Synergy Group, LLC (together, " Defendants" ) placed thirty-three unsolicited telemarketing calls to his home over a three-month period in 2008. He alleges that these calls violated the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227, and the Ohio Consumer Sales Practices Act (" OCSPA" ), Ohio Rev.Code Ann. § 1345.02. He also alleges a state-law claim of invasion of privacy. Charvat now appeals the district court's decision to dismiss the case for lack of subject-matter jurisdiction. Because the district court erred in concluding that (1) federal courts lack federal-question jurisdiction over private TCPA claims, and (2) Charvat's alleged damages do not exceed $75,000 as required for diversity jurisdiction over Charvat's state-law claims, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND & PROCEDURAL HISTORY

Charvat alleges that, from September 12, 2008 to December 10, 2008, Defendants placed thirty-three telemarketing calls to his home for the purpose of selling him a membership in the NASCAR Membership Club. The first call was a prerecorded voice message, and the next two calls were placed by a live agent. The remaining thirty calls were prerecorded messages. Charvat alleges that during the third call, he asked Defendants' live agent to place his name and residential telephone number on Defendants' do-not-call list.

On March 18, 2009, Charvat filed suit against NMP, LLC in the United States District Court for the Southern District of Ohio, alleging violations of the TCPA, 47 U.S.C. § 227, and the OCSPA, Ohio Rev.Code Ann. § 1345.02. He amended his complaint on April 3, 2009, to add Media Synergy Group, LLC as a defendant. Defendants filed a motion to dismiss Charvat's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of federal subject-matter jurisdiction. With permission of the district court, Charvat then filed a Second Amended Complaint to add a state-law claim of invasion of privacy. Defendants filed a motion to dismiss Charvat's Second Amended Complaint, again arguing lack of federal subject-matter jurisdiction under Rule 12(b)(1) but also asserting that the state-law claim for invasion of privacy fails to state a claim under Rule 12(b)(6).

The district court granted Defendants' motion to dismiss, concluding that the court lacked federal subject-matter jurisdiction. Charvat timely appealed and now challenges the district court's conclusions that (1) it lacked federal-question jurisdiction over his claims arising under the TCPA, (2) it lacked diversity jurisdiction because his claims do not meet the $75,000 amount-in-controversy requirement, and (3) his state-law claim for invasion of privacy fails as a matter of law.

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II. ANALYSIS

A. Statutory Overview

1. The Telephone Consumer Protection Act

In 1991, Congress enacted the TCPA " to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile ... machines and automatic dialers." S.Rep. No. 102-178, at 1, reprinted in 1991 U.S.C.C.A.N. 1968, 1968; see Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (current version at 47 U.S.C. § 227).

The TCPA contains a number of restrictions on the use of automated telephone equipment, including prohibiting the " initiat[ion of] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." 47 U.S.C. § 227(b)(1)(B). Subsection (b) provides that the Federal Communications Commission (" FCC" ) " shall prescribe regulations to implement the requirements of [that] subsection." § 227(b)(2). Accordingly, the FCC promulgated regulations governing automated telephone calls, messages using an artificial or prerecorded voice, and advertisements sent to telephone facsimile machines. See 47 C.F.R. § 64.1200(a).1 Subsection (b) also includes an express private right of action and statutory damages provision, which 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 subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3). Subsection (d) of the TCPA contains " [t]echnical and procedural standards" for such automated telephone equipment and instructs the FCC to " prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone" and to include certain listed minimum requirements. 47 U.S.C. § 227(d)(3); see 47 C.F.R. § 64.1200(b).

In addition to the restrictions on automated telephone equipment, the TCPA instructs the FCC to issue regulations " concerning the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object." 47 U.S.C. § 227(c)(1). Accordingly, the FCC issued regulations prohibiting " person[s] or entit[ies] [from] initiat[ing] any call for telemarketing purposes to a residential telephone subscriber unless [the] person or entity has instituted [certain listed] procedures for maintaining" a do-not-call list.

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47 C.F.R. § 64.1200(d). Relevant here, the regulations require the telemarketer to (1) provide " the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted," § 64.1200(d)(4); (2) maintain a do-not-call list, § 64.1200(d)(6); and (3) honor a person's request not to be called, § 64.1200(d)(3). Subsection (c) of the TCPA also contains a private right of action, which states:

A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection 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 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 up to $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection. If the court finds that the defendant willfully or knowingly violated the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(c)(5).

The TCPA additionally provides an enforcement mechanism for state attorneys general to bring actions against persons engaging in a pattern or practice of calls or transmissions in violation of the Act or its regulations:

Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of telephone calls or other transmissions to residents of that State in violation of this section or the regulations prescribed under this section, the State may bring a civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $500 in damages for each violation, or both such actions. If the court finds the defendant willfully or knowingly violated such regulations, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under the preceding sentence.

47 U.S.C. § 227(f)(1) (2008).2 The federal district courts have exclusive jurisdiction over such actions. § 227(f)(2) (2008).

2. The Ohio Consumer Sales Practices...

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