Boydston v. Asset Acceptance LLC

• Decision Date: 23 July 2007
• Docket Number: No. C06-04999 JCS.,C06-04999 JCS.
• Parties: John C. BOYDSTON, Plaintiff, v. ASSET ACCEPTANCE LLC, Defendant.
• Court: U.S. District Court — Northern District of California

Page 1101

496 F.Supp.2d 1101

John C. BOYDSTON, Plaintiff, v. ASSET ACCEPTANCE LLC, Defendant.

No. C06-04999 JCS.

United States District Court, N.D. California.

July 23, 2007.

Tomio B. Narita, Jeffrey A. Topor, Simmonds & Narita LLP, San Francisco, CA, for Defendants.

ORDER TO REMAND FOR LACK OF SUBJECT MATTER JURISDICTION

SPERO, United States Magistrate Judge.

I. INTRODUCTION

Defendant, Asset Acceptance LLC, ("Asset") brings this Motion for Summary Judgment ("the Motion"), seeking dismissal of Plaintiff John Boydston's claim that Defendant violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The TCPA limits the use of "an artificial or prerecorded voice" in calls to residential telephone lines and prescribes technical and procedural standards for regulating such automated calls. Plaintiff initially filed his Complaint in the Small Claims Division of the Superior Court of the State of California in and for the County of San Francisco, seeking $500 in statutory damages. Defendant removed the action to the Federal District Court for the Northern District of California. For the reasons stated below, the Court remands for lack of subject matter jurisdiction. The Court, therefore, declines to rule on Defendant's Motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2006, Plaintiff, appearing pro se, filed a small claims complaint in the San Francisco County Superior Court. See Notice of Removal, Ex. A (Complaint). Plaintiff's Complaint conclusorily alleges that on March 13, 2006, Defendant violated the Telephone Consumer Protection Act. Id. The Complaint does not specify which provisions of the TCPA Defendant allegedly violated. Id.

Plaintiff produced for Defendant an audio cassette recording of an automated voice mail message allegedly left for him by Defendant on March 13, 2006. Topor Decl. ¶ 4. The recording contains the following automated message, which is thirty-two seconds long and repeated twice:

This is not a solicitation or telemarketing call. Please return this call at 1-866-345-7725. We are available Monday through Thursday, 8 a.m. to 8:30 p.m., Friday, 8 a.m. to 7 p.m., and Saturday from 8 a.m. to 12 noon, Eastern time. Once again, our toll free number is 1-866-345-7725. Thank you.

Topor Decl. ¶ 4. Defendant does not dispute that it left the recorded message. Mot. at 2. In a letter to Defendant's counsel, Plaintiff asserts that Defendant violated regulations promulgated under the TCPA, specifically 47 C.F.R. § 64.1200(d), by not identifying itself in the automated message. Topor Decl., Ex. A.

On August 18, 2006, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441 and 1331. Docket No. 1; Notice of Removal. Defendant alleges that the District Court has proper jurisdiction because the Complaint alleges federal claims arising under the TCPA. Defendant acknowledges in a footnote that the Ninth Circuit held in Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000), that state courts have exclusive jurisdiction over claims under the TCPA. Nonetheless, to support removal here, Defendant cites a Seventh Circuit decision holding that the TCPA does not preclude removal when an independent basis for subject matter jurisdiction exists. See Docket No. 1; Notice of Removal at 2 (citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005)). Defendant does not, however, allege any independent basis for subject matter jurisdiction other than the TCPA in this case. See id.

Defendant answered Plaintiffs Complaint on August 25, 2006, denying any violation of the TCPA. See Docket No. 5; Def.'s Answer. Both parties consented to proceeding before a U.S. magistrate judge. See Docket Nos. 6, 7. An initial case management conference was held on November 17, 2006, before the undersigned magistrate judge. Docket No. 16. On May 9, 2007, Defendant moved for summary judgment on the grounds that the TCPA provides no private right of action for Plaintiffs claim. Mot. at 3. Plaintiff failed to oppose Defendant's Motion for Summary Judgment. Docket No. 20; Reply Mem. of P. & A. in Supp. of Def.'s. Mot. for Summ. J. at 1.

On June 11, 2007, the Court ordered that Defendant show cause why the action should not be remanded to state court for a lack of subject matter jurisdiction. Docket No. 24; Order to Show Cause Why Action Should Not Be Remanded. Defendant filed a response on June 22, 2007, arguing that subject matter jurisdiction exists as Plaintiffs claim arises under federal law and the Ninth Circuit's opinion in Murphey v. Lanier is neither applicable nor binding. See Docket No. 25; Def's Resp. to Order to Show Cause re Remand.

III. Legal Standard

A. Removal

Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to federal court a claim filed in state court that could have initially been brought in federal court.¹ 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The propriety of removal depends, in part, upon whether the claim falls within the district court's subject matter jurisdiction. Brodeur v. Swan Fin. Corp., No. 4:05CV2418 DDN, 2006 WL 950208, at *1 (E.D.Mo. Apr. 11, 2006). As federal courts have limited jurisdiction, they are presumed to lack jurisdiction unless the contrary is established. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). The burden of establishing subject matter jurisdiction rests with the party seeking removal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Removal statutes are to be strictly construed and any doubts are to be resolved in favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th Cir.1992).

The Court may remand an action to state court for lack of subject matter jurisdiction or for any defect in the removal procedure. See 28 U.S.C. § 1447(c); Tengler v. Spare, No. C-95-33421 SI, 1995 WL 705142, at *2 (N.D.Cal. Nov. 15, 1995). Remand may be ordered sua sponte or upon a party's motion. Tengler, 1995 WL 705142, at *2. The Court may remand for lack of subject matter jurisdiction at any time. Id.See also Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").

B. Federal Question Jurisdiction Under Section 1331

:n the federal courts, subject matter jurisdiction may arise from either "federal question jurisdiction" or "diversity of citizenship" when the amount in controversy exceeds $75,000. See Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; 28 U.S.C. §§ 1331-32. Here, Defendant alleges that removal is proper because federal question jurisdiction exists. See Docket No. 1; Notice of Removal. Defendant does not allege that there is diversity of citizenship between itself and Plaintiff, nor does the amount in controversy exceed $75,000. See 28 U.S.C. § 1332. Consequently, the Court's jurisdiction over the action turns on whether or not federal question jurisdiction exists. See Murphey v. Lanier, 997 F.Supp. 1348, 1349 (S.D.Cal.1998), aff'd 204 F.3d 911 (9th Cir.2000).

Federal question jurisdiction is governed by 28 U.S.C. § 1331, which provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. Generally, "[a] case arises under federal law where federal law creates the cause of action or where the vindication of a right under state law necessarily turns on some construction of federal law." Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir.2002) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). "The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (internal quotation marks omitted).

However, "alleging a violation of a federal statute is not always sufficient to invoke federal question jurisdiction." Murphey, 997 F.Supp. at 1349. Subject matter jurisdiction over a "formally federal cause of action may be lacking" as a result of the statute's provisions and Congressional intent. Id. at 1350. While section 1331 provides a general grant of subject matter jurisdiction to the district courts over actions "arising under" federal law, this grant may be circumscribed by Congress. Id. A federal law that creates a cause of action may assign jurisdiction over that cause of action to courts other than the district court. Id.

C. Claims Arising Under the TCPA

In 1991, Congress amended the Communications Act of 1934 with the Telephone Consumer Protection Act of 1991 ("TCPA"). Int'l Sci. & Tech. Inst., Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1150 (4th Cir.1997) (citing Pub.L. No. 102-243, 105 Stat. 2394 (1991) (codified as 47 U.S.C. § 227)). 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 ... restricting certain uses of facsimile ... machines and automatic dialers." S.Rep. No. 102-178, at *1 (1991). The TCPA restricts the use of "unsolicited, automated telephone calls" to residences but also prescribes technical and procedural standards when such automated and prerecorded calls are allowed. See 47 U.S.C. § 227(b), (d).

A number of sections of the TCPA are potentially relevant to Plaintiff's Complaint. The TCPA limits the use of "an artificial or prerecorded voice" in calls to residential telephone lines. 47 U.S.C. § 227(b)(1)(B). Specifically, section 227(b)(1)(B) provides that "[i]t shall be unlawful for any person within the United States ... to...