Charvat v. Nmp LLC

• Decision Date: 31 March 2010
• Docket Number: Case No. 2:09-cv-209.
• Parties: Philip J. CHARVAT, Plaintiff,v.NMP, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

703 F.Supp.2d 735

Philip J. CHARVAT, Plaintiff,v.NMP, LLC, et al., Defendants.

Case No. 2:09-cv-209.

United States District Court,

S.D. Ohio,

Eastern Division.

March 31, 2010.

John William Ferron, Lisa A. Wafer, Ferron & Associates, Columbus, OH, for Plaintiff.

James B. Hadden, Anthony R. McClure, Porter Wright Morris & Arthur, Columbus, OH, William R. Baldwin, III, Marchant, Thorsen, Honey, Baldwin & Meyer, LLP, Richmond, VA, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

Plaintiff Philip Charvat brings this action against Defendants NMP, LLC and Media Synergy Groups, LLC, alleging that they engaged in unlawful telemarketing practices by placing 31 calls to Plaintiff's residence. Plaintiff alleges that Defendants knowingly committed 276 violations of federal and state statutes, including the Telephone Consumer Protection Act (“TCPA”) and the Ohio Consumer Sales Practice Act (“CSPA”). This matter is before the Court on Defendant's Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) (Document 22). For the reasons stated below, the Court finds that it lacks jurisdiction over this case and GRANTS Defendants' Motion to Dismiss.

I.

Between September 12, 2008 and December 10, 2008, Plaintiff received from Defendants 31 phone calls on his home phone line inviting him to join the NASCAR Membership Club. On September 20, 2008, during one of these phone calls, Plaintiff requested to be placed on Defendant's “Do Not Call List.” Plaintiff alleges that each of Defendants' calls constitutes between one and five statutory violations. The alleged violations include Defendants' failure to do the following: (1) to obtain Plaintiff's prior express consent or invitation before calling, (2) to voluntarily state the caller's name, (3) to maintain a record of Plaintiff s requests that the caller place him on the Do Not Call List, (4) to honor such requests, and (5) to state the caller's purpose at the beginning of each call. Plaintiff brings 123 claims against Defendants under the TCPA, for total statutory damages of $184,500, and 153 claims under the CSPA, for total statutory damages of $30,600. Plaintiff also seeks attorney's fees in the amount of at least $50,000 pursuant to Ohio Revised Code § 1345.09(F) as well as damages for common law invasion of privacy.

Defendants have moved for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. They also seek dismissal of Plaintiff's state law claim under Rule 12(b)(6), asserting that Plaintiff failed to state a claim upon which relief can be granted. The Court must first address the question of subject matter jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).

II.

Defendants assert that because Plaintiff cannot satisfy the amount in controversy requirement for diversity jurisdiction, this Court lacks subject matter jurisdiction to hear Plaintiff's claims. District courts have subject matter jurisdiction over cases arising under federal law as well as cases involving citizens of different states when the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. Plaintiff contends that this Court has both federal question jurisdiction and diversity jurisdiction.

A. Federal Question Jurisdiction

The TCPA provides that “[a] person ... may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State.” 47 U.S.C. § 227(b)(3), (c)(5). While this provision clearly authorizes an action in state court, it does not explicitly provide whether a federal district court has federal question jurisdiction over such an action. In an unpublished opinion in 2004, a unanimous panel of the Sixth Circuit referred to the lack of federal question jurisdiction over TCPA claims as “well-settled.” Dun-Rite Constr., Inc. v. Amazing Tickets, Inc., No. 04-3216, 2004 WL 3239533, *2, 2004 U.S.App. Lexis 28047, *5 (6th Cir. Dec. 16, 2004). The Sixth Circuit recently questioned that conclusion in a published opinion, however, stating that “the existence or nonexistence of federal-question jurisdiction over private TCPA claims is not a settled question.” Charvat v. GVN Mich., Inc., 561 F.3d 623, 627 n. 2 (6th Cir.2009) (declining to address the issue because it had not been raised).

At least “six federal circuit courts have concluded that federal courts do not have federal question jurisdiction over private TCPA claims.” Charvat, 561 F.3d at 627 n. 2 (citing Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir.2000); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir.1998); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir.1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir.1997); Int'l Sci. & Tech. Inst., Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1156 (4th Cir.1997)).

However, the Sixth Circuit noted in dicta that the Seventh Circuit's 2005 decision in Brill v. Countrywide Home Loans, Inc. and then-Judge Alito's dissent from the Third Circuit's 1998 opinion in ErieNet, Inc. v. Velocity Net, Inc. “raise serious questions about the majority view.” Charvat, 561 F.3d at 627 n. 2 (citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir.2005) (Easterbrook, J., joined by Posner & Rovner, J.J.); ErieNet, 156 F.3d at 521-23 (Alito, J., dissenting)).

While the question may not be “well-settled,” this Court agrees with the panel in Dun-Rite that no federal question jurisdiction exists for TCPA claims. This Court finds that neither Brill nor then-Judge Alito's dissent in ErieNet supports a conclusion that the Court has federal question jurisdiction over TCPA claims.

1. Brill

In Brill, the Seventh Circuit acknowledged that six courts of appeals had held that no federal question jurisdiction exists for TCPA claims. Brill, 427 F.3d at 450. The court found, however, that those decisions could not be reconciled with the Supreme Court's decisions in two cases Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), and Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 123 S.Ct. 1882, 155 L.Ed.2d 923 (2003).

In Grable, the Court held that federal question jurisdiction did not depend on the existence of a private right of action under federal law where the parties raised a disputed issue of federal tax law. Grable, 545 U.S. at 310, 125 S.Ct. 2363. The Court finds that this case is distinguishable from Grable. In that case, the Supreme Court emphasized “the national interest in providing a federal forum for federal tax litigation.” Id., 545 U.S. at 310, 125 S.Ct. 2363. The plaintiff had sued the Internal Revenue Service and the purchaser of his property at a tax foreclosure sale. The case was originally filed as a quiet title in state court but involved a disputed issue of federal tax law. Here, Plaintiff's state law claims implicate no federal statutes or national interest in uniformity of the tax code in the various states.

In Breuer, the plaintiff contended that his Fair Labor Standards Act (FLSA) case was improperly removed to federal court because the FLSA provided that an action “may be maintained ... in any Federal or State court of competent jurisdiction.” Breuer, 538 U.S. at 694, 123 S.Ct. 1882 (quoting 29 U.S.C. § 216(b)) (emphasis added). The plaintiff asserted that the word “maintained” constituted an express exception to the general authorization of removal under 28 U.S.C. § 1441(a). The Supreme Court disagreed, finding that the quoted language in FLSA was far from an express exception to the general authorization of removal under § 1441(a). The Brill court stated that the Supreme Court's decision in Breuer meant that “statutory permission to litigate a federal claim in state court does not foreclose removal under the federal-question jurisdiction.” Brill, 427 F.3d at 450. While this statement generally applies to Breuer, the Supreme Court's holding in Breuer was more nuanced, and this Court finds that it does not control the question here.

2. Alito's Dissent in ErieNet

The Sixth Circuit also suggested that then-Judge Alito's dissent in ErieNet casts doubt on the majority view that TCPA claims do not enjoy federal question jurisdiction. Charvat, 561 F.3d at 627 n. 2 (citing ErieNet, 156 F.3d at 521-23 (Alito, J., dissenting)). In his dissent, Alito asserted that the question is controlled by the Supreme Court's decision in Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). ErieNet, 156 F.3d at 521. In Tafflin, the Supreme Court interpreted a provision of the federal RICO statute which provided that a person “may sue [for injury] in any appropriate United States district court.” Tafflin, 493 U.S. at 460, 110 S.Ct. 792. “The Court found that this language was insufficient to divest state courts of concurrent jurisdiction.” ErieNet, 156 F.3d at 521. The Tafflin Court noted that “[t]his grant of federal jurisdiction is plainly permissive, not mandatory, for the statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described ‘may’ be brought in the federal district courts, not that they must be.” Tafflin, 493 U.S. at 460-61, 110 S.Ct. 792 (citations and quotations omitted).

Alito asserts that the same reasoning applies to the statutory language at issue here, which provides that “[a] person ... may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State.” ErieNet, 156 F.3d at 521; 47 U.S.C. § 227(b)(3), (c)(5). While this reasoning appears sound at first glance, the majority in ErieNet declined to apply it because Tafflin concerned divestment of state court jurisdiction whereas ErieNet concerned divestment of federal court juri...