Gottlieb v. Carnival Corp.

• Decision Date: 28 April 2005
• Docket Number: No. 04-CV-4202 (ILG).,04-CV-4202 (ILG).
• Citation: 367 F.Supp.2d 301
• Parties: Sherman GOTTLIEB, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

367 F.Supp.2d 301

Sherman GOTTLIEB, Plaintiff, v. CARNIVAL CORPORATION, Defendant.

No. 04-CV-4202 (ILG).

United States District Court, E.D. New York.

April 28, 2005.

Andre K. Cizmarik, Edwards & Angell LLP, Anthony J. Viola, Edwards & Angell, New York, NY, for Plaintiff.

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

MEMORANDUM AND ORDER

GLASSER, District Judge.

In this action Sherman Gottlieb ("plaintiff") alleges that Carnival Corporation ("defendant" or "Carnival") sent him unsolicited facsimiles advertising its business. Plaintiff asserts causes of action under the Telephone Consumer Protection Act ("TCPA" or the "Act"), 47 U.S.C. § 227(b)(1), and New York General Business Law ("N.Y.Gen.Bus.Law") § 396-aa. Pending before the Court is defendant's motion to dismiss.

FACTS

The Court takes the following facts from plaintiff's amended complaint and accepts them as true as it must on a motion to dismiss. Plaintiff is a travel agent who works from his home where he has a fax machine associated with two telephone numbers. Amended Complaint ("Am.Compl.") ¶ 9. He brings this action against Carnival, a cruise company that solicits individuals throughout the United States and globally to book trips on its ships. Id. ¶¶ 8, 9. Plaintiff alleges that from early 2001 to 2004 he received over 1,000 fax advertisements from defendant. Id. ¶¶ 10, 13. On "numerous occasions," plaintiff sent faxes to defendant requesting that it cease sending the unsolicited fax advertisements. Id. ¶ 11. Additionally, he contacted the "1-800" number listed on the unsolicited faxes to request that defendant stop sending him faxes. Id. Defendant continued to send facsimile advertisements to plaintiff, notwithstanding plaintiff's requests. Id. ¶ 12.

Plaintiff commenced this action alleging that by faxing unsolicited advertisements to plaintiff, defendant violated the TCPA and N.Y. Gen. Bus. Law § 396-aa. In Count One of the amended complaint, plaintiff seeks statutory damages of $500 per fax. Id. ¶ 27. In Count Two, plaintiff alleges that defendant "willfully or knowingly" sent the unsolicited faxes and that therefore the TCPA entitles him to treble damages in the amount of $1,500 per fax. Id. ¶ 34. In Count Three, plaintiff seeks injunctive relief against defendant on the basis of defendant's wilful violation of the TCPA. Id. ¶ 36. Finally, in Count Four, plaintiff alleges that defendant violated N.Y. Gen. Bus. Law § 396-aa by sending "numerous" facsimile advertisements that exceeded five pages in length which plaintiff received between 9:00 p.m. and 6:00 a.m. Id. ¶ 40. Additionally, plaintiff alleges that he received "numerous" faxes from defendant between 6:00 a.m. and 9:00 p.m. in violation of § 396-aa. Id. ¶ 41. Plaintiff further alleges that defendant continued to send the faxes, notwithstanding the written notice plaintiff sent to defendant indicating that he did not wish to receive any faxes. Id. ¶ 42. Plaintiff seeks $100 in statutory damages pursuant to § 396-aa for each fax unlawfully sent by defendant. Id. ¶ 44.

Defendant moves this Court for an order dismissing plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

DISCUSSION

When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court takes the facts as alleged in the complaint to be true, and must draw all reasonable inferences from those facts in favor of the plaintiff. See Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir.1989). "[M]otions to dismiss for [lack of] subject matter jurisdiction under Rule 12(b)(1) are reviewed under the same standards as motions to dismiss for failure to state a claim under Rule 12(b)(6)." Walker v. New York, 345 F.Supp.2d 283, 286 (E.D.N.Y.2004) (Hurley, J.) (citations omitted). A court must not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

I. TCPA Claims

The TCPA makes it unlawful "for any person within the United States, or any person outside the United States if the recipient is within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine...." 47 U.S.C. § 227(b)(1)(C). The TCPA creates a private right of action:

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... 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.

Id. § 227(b)(3). Moreover, if a court finds that the defendant "willfully or knowingly" violated the TCPA, it may award treble damages in the amount of $1,500 per facsimile. Id.

A. Federal Question Jurisdiction

Defendant's principal contention with regard to subject matter jurisdiction is that plaintiff's complaint does not raise a federal question on which jurisdiction can be grounded pursuant to 28 U.S.C. § 1331. Defendant asserts this argument, notwithstanding that plaintiff alleges diversity jurisdiction pursuant to 28 U.S.C. § 1332, rather than federal question subject matter jurisdiction. See Am. Compl. ¶ 4.¹ Because the question whether federal courts have federal question jurisdiction over TCPA claims has vexed other courts and defendant devotes considerable effort to making this argument, the Court will first address federal question subject matter jurisdiction. In Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., Ltd., 156 F.3d 432 (2d Cir.1998), plaintiff Foxhall brought a putative class action suit alleging that defendant faxed him an unsolicited advertisement in violation of the TCPA. Id. at 434. Defendant moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. 975 F.Supp. 329, 330 (S.D.N.Y.1997). The district court held that it lacked jurisdiction over plaintiff's claim because the TCPA confers exclusive jurisdiction on state courts over private causes of action brought under § 227(b)(3). Id. at 331. The Second Circuit affirmed, reaching "`the somewhat unusual conclusion that state courts have exclusive jurisdiction over a cause of action created by' a federal statute...." 156 F.3d at 434 (quoting Int'l Science & Tech. Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1150 (4th Cir.1997) (hereinafter "Int'l Science")).²

The Court gleaned Congress's intent with respect to jurisdiction over private TCPA actions from the text of the Act, specifically: "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...." § 227(b)(3) (emphasis added).³ It found that language significant in light of the Act's silence as to federal court jurisdiction over private actions.⁴ In holding that the statutory grant of permissive authorization of jurisdiction to state courts conferred exclusive jurisdiction over TCPA claims on those courts, the Second Circuit distinguished between state courts of general jurisdiction and federal courts of limited jurisdiction.

When ... the permissive authorization extends only to courts of general jurisdiction, that authorization cannot confer jurisdiction on unmentioned courts of limited jurisdiction, which require a specific grant. If a federal statute permissively authorizes suit in federal court, that authorization does not of necessity preclude suit in state courts of general jurisdiction, which are presumed competent unless otherwise stated. But the contrary assertion cannot be true. If a statute authorizes suit in state courts of general jurisdiction through the use of the term `may,' that authorization cannot confer jurisdiction on a federal court because federal courts are competent to hear only those cases specifically authorized.... In light of this difference between the federal and state courts, it is meaningful that Congress explicitly mentioned only state courts in 47 U.S.C. § 227(b)(3) because under usual circumstances, mentioning state courts is unnecessary to vest them with concurrent jurisdiction.

156 F.3d at 435 (quoting Int'l Science, 106 F.3d at 1151-52). The Court noted that its conclusion was not altered by the general federal question jurisdiction statute, 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." That is because the federal question jurisdiction of the inferior federal courts "depends on Congress's intent as manifested by the federal statute creating the cause of action" at issue, notwithstanding the breadth § 1331. 156 F.3d at 436 (citation and quotation marks omitted). With respect to the TCPA, the Court concluded that Congress's intent not to create federal question jurisdiction over private causes of action is manifested in § 227(b)(3), where it specifically empowered state courts to entertain such actions. Id.

The Court found further support for its conclusion that Congress intended litigants to bring suits under § 227(b)(3) in state court in another section of the TCPA. Id. The Act permits state attorneys general to bring civil actions on behalf of state residents for unsolicited calls or faxes for either injunctive or monetary relief. § 227(f)(1). Congress provided that federal district courts shall have exclusive jurisdiction over those actions. § 227(f)(2). Similarly, in other provisions of the Communications Act of 1934, which the TCPA amends, Congress expressly provided...