Giovanniello v. ALM Media, LLC

• Decision Date: 17 October 2011
• Docket Number: Docket No. 10–3854–cv.
• Citation: 660 F.3d 587
• Parties: Earle GIOVANNIELLO, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant, v. ALM MEDIA, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

660 F.3d 587

Earle GIOVANNIELLO, Individually and on Behalf of All Others Similarly Situated, Plaintiff–Appellant,

v.ALM MEDIA, LLC, Defendant–Appellee.

Docket No. 10–3854–cv.

United States Court of Appeals, Second Circuit.

Submitted: May 19, 2011.Decided: Oct. 17, 2011.

Todd C. Bank, Esq., Kew Gardens, NY, for Plaintiff–Appellant.

Elizabeth C. Koch, Chad R. Bowman, Levine Sullivan Koch & Schultz, LLP, Washington, D.C., for Defendant–Appellee.

Before: RAGGI, LOHIER, and WALLACE,^* Circuit Judges.

Judge WALLACE concurs in the judgment in a separate opinion.

REENA RAGGI, Circuit Judge:

The Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, allows persons to recover statutory damages in state court for the transmission of unsolicited advertisements by means of a telephone facsimile machine “if otherwise permitted by the laws or rules of court” of the state where the action is filed, id. § 227(b)(3). On this appeal from a judgment of dismissal entered in the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge ), we consider whether a state statute of limitations is among the “laws” referenced in the TCPA's “otherwise permitted” provision, or whether the statute of limitations for TCPA actions is the federal catch-all four-year limitations period provided in 28 U.S.C. § 1658(a). In the circumstances of this case, where the relevant state law, Conn. Gen.Stat. § 52–570c, specifically recognizes a cause of action for statutory damages for the transmission of unsolicited commercial facsimile (“fax”) communications, but permits such an action to be filed only within two years of the complained-of transmission, see id. § 52–570c(d), we conclude that a TCPA action may be maintained only as permitted by that state statute of limitations.

In ordering dismissal, the district court did not decide whether Conn. Gen.Stat. § 52–570c(d) applied to this case. Instead, it concluded that this action, filed by plaintiff Earle Giovanniello on September 9, 2009, with respect to a fax transmitted by ALM Media, LLC (“ALM”) on January 28, 2004, was untimely even under the four-year limitations period of 28 U.S.C. § 1658(a). See Giovanniello v. ALM Media, LLC, No. 309 Civ. 1409(JBA), 2010 WL 3528649, at *6 (D.Conn. Sept. 3, 2010). On appeal, Giovanniello asserts that 28 U.S.C. § 1658(a), rather than Conn. Gen.Stat. § 52–570c(d), is the applicable statute of limitations. He submits, however, that the district court erred in finding that statute of limitations tolled pursuant to American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), only through dismissal of an earlier putative class action in the Southern District of New York based on the same fax transmission, and not also through reconsideration or appeal of that judgment. We need not address that issue because this TCPA action can be maintained only as permitted by Connecticut law, see 47 U.S.C. § 227(b)(3), which we now clarify includes Conn. Gen.Stat. § 52–570c(d). Accordingly, Giovanniello's complaint is untimely even if tolling were to be calculated as he urges. ¹

I. BackgroundA. The January 28, 2004 Fax Transmission

On January 28, 2004, Giovanniello allegedly received an unsolicited commercial fax at his home in Connecticut from ALM in New York. Giovanniello asserts that he was but one of more than 10,000 recipients of similar unsolicited fax advertisements sent by ALM between March 2003 and October 2009. He maintains that transmission of these faxes violated the TCPA, which prohibits, among other things, the “use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). B. The September 8, 2009 Filing

This lawsuit is the fourth filed by Giovanniello under the TCPA for transmission of the January 28, 2004 fax.

1. The Initial Connecticut State Court Filings

On April 23, 2004, Giovanniello filed a putative class action under the TCPA in Connecticut state court, which he voluntarily withdrew on August 30, 2004. The following month, on September 20, 2004, Giovanniello filed a second putative class action in Connecticut state court, but voluntarily dismissed that lawsuit without prejudice on June 27, 2005.

2. The New York Federal Court Filing

Over a year and a half later, on March 8, 2007, Giovanniello invoked federal diversity jurisdiction to file his third putative class action under the TCPA, this time in the United States District Court for the Southern District of New York (“Southern District action”). The district court dismissed the complaint on August 6, 2007, holding that (1) the TCPA incorporated a New York law prohibiting class-action suits seeking statutory damages, N.Y. C.P.L.R. § 901(b), and (2) without viable class allegations, Giovanniello failed to satisfy the minimum amount-in-controversy requirement for diversity jurisdiction. See Giovanniello v. N.Y. Law Publ'g Co., No. 07 Civ.1990(HB), 2007 WL 2244321, at *4 (S.D.N.Y. Aug. 6, 2007).

Giovanniello moved for reconsideration, which the district court denied on December 11, 2007. See Giovanniello v. N.Y. Law Publ'g Co., No. 07 Civ.1990(HB), 2007 WL 4320757, at *2 (S.D.N.Y. Dec. 11, 2007). Giovanniello timely appealed to this court on December 19, 2007. A month later, on January 15, 2008, he stipulated to withdrawal of the appeal without prejudice to reinstatement pending resolution of two other appeals challenging the application of N.Y. C.P.L.R. § 901(b) to TCPA class-action suits brought in New York. See Stipulation, Giovanniello v. ALM Media, Inc., No. 07–5371–cv (2d Cir. Jan. 15, 2008). After resolution of those appeals, Giovanniello failed to respond to an order to show cause relating to the status of his appeal. Accordingly, this court ordered the appeal dismissed pursuant to the earlier stipulation. See Order, Giovanniello v. ALM Media, Inc., No. 07–5371–cv (2d Cir. Feb. 9, 2009). The mandate subsequently issued on March 13, 2009.

3. The Instant Connecticut Federal Court Filing

On September 8, 2009—more than five and a half years after he received the January 28, 2004 fax here at issue—Giovanniello again invoked diversity jurisdiction to file this, his fourth, putative class action against ALM in the United States District Court for the District of Connecticut. ALM moved to dismiss the complaint as untimely, arguing that the TCPA incorporates state law filing limitations and that, under Connecticut law, a private action by the recipient of an unsolicited commercial fax must be brought within two years of transmission. See Conn. Gen.Stat. § 52–570c(d). ALM further contended that even if the federal catch-all four-year statute of limitations applied, see 28 U.S.C. § 1658(a), Giovanniello's action was nonetheless time-barred.

On September 3, 2010, the district court granted ALM's motion to dismiss. See Giovanniello v. ALM Media, LLC, 2010 WL 3528649. The court observed that Giovanniello had conceded that, even under the more generous federal statute of limitations, his complaint was time-barred unless American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, was construed to support tolling of the statute of limitations through his motion for reconsideration or appeal of the judgment of dismissal entered in the Southern District action. See Giovanniello v. ALM Media, LLC, 2010 WL 3528649, at *2 & n. 3.² Noting the lack of any support for Giovanniello's urged construction of American Pipe in our circuit precedent, see id. at *4, and the unanimous contrary authority from our sister circuits, see id. at *5–6, the district court dismissed Giovanniello's claim as time-barred without conclusively deciding whether the state or federal statute of limitations applied. See id. at *6.

This timely appeal followed.

II. Discussion

We review de novo a district court's grant of a motion to dismiss, including its legal conclusions concerning the applicable statute of limitations. See City of Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir.2011). We may affirm on any ground supported in the record, even if it is not one on which the district court relied. See 10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir.2011).

A. State Statutes of Limitations Are Properly Consulted To Determine if a TCPA Action is “Otherwise Permitted” by State Law

In determining the statute of limitations applicable to Giovanniello's instant action, we begin, as we must, with the relevant statutory texts. See, e.g., Cruz–Miguel v. Holder, 650 F.3d 189, 195 (2d Cir.2011) (“Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.” (internal quotation marks omitted)). Title 28 U.S.C. § 1658(a) states that “[ e] xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues.” (emphasis added). As the highlighted language indicates, the statute expresses a default position: a four-year statute of limitations applies only if Congress has not indicated that some other time period controls.

The act of Congress here at issue, the TCPA, was enacted in 1991 and does not expressly provide a statute of limitations for the private cause of action it authorizes. It does, however, state in pertinent part 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,” a private action to enjoin a TCPA violation and to recover damages for actual monetary loss or $500, whichever is greater. 47 U.S.C. § 227(b)(3) (emphasis added). Thus, we must consider whether the highlighted language includes a state statute of limitations.

In construing the TCPA's “otherwise permitted” provision, we have concluded that the language is “una...