Kopff v. World Research Group, LLC

• Citation: 298 F.Supp.2d 50
• Decision Date: 24 December 2003
• Docket Number: No. CIV.A. 03-1747PLF.,CIV.A. 03-1747PLF.
• Parties: Judy KOPFF, et al., Plaintiffs, v. WORLD RESEARCH GROUP, LLC, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

298 F.Supp.2d 50

Judy KOPFF, et al., Plaintiffs, v. WORLD RESEARCH GROUP, LLC, et al., Defendants.

No. CIV.A. 03-1747PLF.

United States District Court, District of Columbia.

December 24, 2003.

COPYRIGHT MATERIAL OMITTED

Michael C. Worsham, Forest Hill, MD, for Plaintiffs.

Charles A. Patrizi, Christopher A. Colea, Paul Hastings Janofsky & Walker LLP, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiffs allege that beginning in February 2002 defendants unlawfully transmitted to plaintiffs' fax machine 26 unsolicited advertisements promoting various events without plaintiffs' consent. Notice of Removal, Ex. N, Amended Complaint ¶¶ 14-17. In May 2002, plaintiffs sent a letter through counsel objecting to the transmissions, to no avail. See id. ¶ 19. In response to the faxes, plaintiffs filed suit in the Superior Court of the District of Columbia.¹ Plaintiffs made three claims against the defendants: (1) violations of Section 227(b) of the Telephone Consumer Protection Act, 47 U.S.C. §§ 201 et seq. ("TCPA"), which provides a private right of action against any person who "use[s] 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); (2) negligence; and (3) violations of the District of Columbia Consumer Protection and Procedures Act, D.C.Code §§ 28-3901 et seq. ("DCCPPA"). Plaintiffs seek $78,000 in damages, which consist of: $13,000 with respect to the faxes ($500 for each unsolicited fax pursuant to 47 U.S.C. §§ 227(a)(4) and 227(b)(3)(B)); $26,000 for "willfully and knowingly" violating the TCPA pursuant to 47 U.S.C. § 227(b)(3) (treble damages of $1500 for each fax); and $39,000 in damages under the DCCPPA, D.C. CODE § 28-3905(k)(1)(A) (treble damages of $1500 for each fax). Plaintiffs also seek injunctive relief and attorneys' fees and costs.

I. BACKGROUND

Defendants WRG Research, Inc., CBI Research, Inc., Center for Business Intelligence, LLC, and Vidar J. Jorgensen, all of whom were served with the amended complaint on August 2, 2003, removed the action to this Court pursuant to 28 U.S.C. § 1441(a) on August 15, 2003, asserting complete diversity and satisfaction of the jurisdictional amount under 28 U.S.C. § 1332. See Notice of Removal ¶¶ 9-18. On September 24, 2003, defendant Tatiana Pose, who asserts that she has never been served properly, consented to the removal. See Consent to Removal by Defendant Tatiana Pose. The remaining defendants were not parties to the removal for reasons addressed below. In addition, the removing defendants, including Ms. Pose, filed an answer and a counterclaim for abuse of process. The docket reflects that this answer was filed on September 8, 2003, but defendants assert that they filed the answer on August 29, 2003. See Defendants' Motion to Amend Notice of Removal at 3.

Plaintiffs filed the instant motion to remand this action to the Superior Court on September 10, 2003. They also filed a motion to stay these proceedings pending determination of the removal issue. Defendants filed a motion to amend the notice of removal on September 24, 2003, in an attempt to clarify the non-moving defendants' positions. On December 18, 2003, the parties appeared before the Court for a status conference, at which they offered argument on the motion to remand. Upon careful review of the parties' briefs and arguments, the Court concludes that plaintiffs' motion to remand should be denied.

II. DISCUSSION

Plaintiffs move to remand this action on five grounds: (1) there is no federal question jurisdiction over TCPA claims and, by extension, there can be no jurisdiction over TCPA claims on the basis of diversity; (2) the $75,000 jurisdictional amount has not been met; (3) removal violates the automatic bankruptcy stay in effect in Mr. Kopff's Chapter 7 bankruptcy proceeding; (4) plaintiffs agree to waive any damages over $75,000; and (5) defendants Dan Manganiello, Tatiana Pose and World Research Group, LLC were not included in the original Notice of Removal and therefore the requirement of unanimity of consent to removal among defendants has not been satisfied.

A. The Removal Statutes

Under the federal removal statute "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). This provision is not limited to federal question jurisdiction but also extends to those actions in which original jurisdiction exists on the basis of diversity of citizenship. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The diversity statute provides that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 75,000, exclusive of interest and costs, and is between ... [c]itizens of different States." 28 U.S.C. § 1332(a)(1). The burden falls on the removing defendants to demonstrate the federal district court's jurisdiction. See Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

Section 1446(b) of Title 28 sets out the procedures for removal, and states, inter alia, that the notice of removal "shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief ...." 28 U.S.C. § 1446(b). It further provides that "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ...." Id. In addition, "[p]romptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d). A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction "must be made within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id.See also Julien v. CCA of Tennessee, Inc., 268 F.Supp.2d 19, 21 (D.D.C.2003) (If a defect in the removal procedures or lack of subject matter jurisdiction surfaces at any point prior to final judgment "the removal court must remand the case to the state court from which defendants originally removed the case.").

Because federal courts are courts of limited jurisdiction, the removal statute is to be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 100-107, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996); Williams v. Howard University, 984 F.Supp. 27, 29 (D.D.C. 1997). As a result, "where there is more than one defendant, `it is well established that removal generally requires unanimity among the defendants.'" Williams v. Howard University, 984 F.Supp. at 29 (quoting Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.1995)). While "there is some variety in the timing and formality required for defendants to express their unanimous consent to removal, each defendant's consent to removal must be unambiguous and independent. Unless all defendants express such consent to removal in a timely manner, the removal procedure is defective." Williams v. Howard University, 984 F.Supp. at 29. See also In re Tobacco/Governmental Health Care Costs Litigation, 100 F.Supp.2d 31, 40 (D.D.C. 2000) (normally notice of removal must reflect consent of all defendants who have been served). There are three exceptions to this "rule of unanimity:" (1) where one or more of the defendants has not yet been served with the initial pleading at the time the removal petition was filed; (2) where a defendant is merely a nominal or formal party-defendant; and (3) where the removed claim is a separate and independent claim under 28 U.S.C. § 1441(c). See Williams v. Howard University, 984 F.Supp. at 30 n. 5.

B. Diversity Jurisdiction Permissible Basis for Removal of TCPA Claims

Plaintiffs first cite cases in which courts have concluded that if a plaintiff raises claims under the TCPA by filing suit in state court, a defendant cannot remove the action on the basis of federal question jurisdiction because Congress created exclusive jurisdiction in state courts over these claims. See Pls.' Mot. at 5 (citing Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432 (2d Cir.1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir.1998); Int'l Science & Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir.1997); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir.1997)). These cases concern Section 227(b)(3) of the TCPA, which provides that a private person or entity may bring an action under the TCPA, "if otherwise permitted by the laws or rules of court of a State, ... in an appropriate court of that State ...." 47 U.S.C. § 227(b)(3).

Plaintiffs argue that because Congress has given the state courts, rather than the federal courts, jurisdiction to hear suits under the TCPA, defendants should not be allowed to remove this action to federal court on the ground of diversity pursuant to Section 1332. In so arguing, however, plaintiffs incorrectly characterize the grant of diversity...