Bank v. Independence Energy Group LLC, No. 13-1746 (2d Cir. 2013)
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Plaintiff appealed the district court's dismissal sua sponte of his class actin complaint brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, for lack of subject matter jurisdiction, based on application of New York Civil Practice Law and Rules (CPLR) 901(b). CPLR 901(b) prohibits class action suits for statutory damages. The court concluded that, in light of Giovanniello v. ALM Media, LLC, Federal Rule of Civil Procedure 23, not state law, governs when a federal TCPA suit may proceed as a class action. Accordingly, the court vacated and remanded for further proceedings.
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13-1746-cv Bank v. Independence Energy Group LLC et al. In the United States Court of Appeals For the Second Circuit ________ AUGUST TERM 2013 No. 13-1746-cv TODD C. BANK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant. v. INDEPENDENCE ENERGY GROUP LLC AND INDEPENDENCE ENERGY ALLIANCE LLC, Defendants-Appellees. ________ Appeal from the United States District Court for the Eastern District of New York. No. 13 CV 1746 (WFK) William F. Kuntz, Judge. ________ SUBMITTED: OCTOBER 28, 2013 DECIDED: DECEMBER 3, 2013 ________ 2 No. 13-1746-cv Before: WALKER, CABRANES, and PARKER, Circuit Judges. ________ In this appeal we consider whether the United States District Court for the Eastern District of New York (William F. Kuntz, Judge) erred in dismissing sua sponte a class action complaint brought pursuant to the Telephone Consumer Protection Act ( TCPA ), 47 U.S.C. § 227, for lack of subject matter jurisdiction, based on its application of New York Civil Practice Law and Rules ( CPLR ) § 901(b), which prohibits class-action suits for statutory damages. We hold, based on the reasoning set forth in our intervening decision in Giovanniello v. ALM Media, LLC, 726 F.3d 107 (2d Cir. 2013), that Federal Rule of Civil Procedure 23, not CPLR § 901(b), governs when a federal TCPA suit may proceed as a class action. Accordingly, we VACATE the March 12, 2013 judgment of the District Court and REMAND the cause for further proceedings consistent with this opinion. ________ Todd C. Bank, pro se, Todd C. Bank, Attorney at Law, Kew Gardens, Plaintiff Aurora Francesca Parrilla, Lowenstein Sandler LLP, Roseland, NJ, for Defendants-Appellees ________ 3 No. 13-1746-cv PER CURIAM: Todd C. Bank, pro se, appeals from the judgment of the District Court for the Eastern District of New York (William F. Kuntz, Judge) dismissing sua sponte his class action complaint, brought pursuant to the Telephone Consumer Protection Act ( TCPA ), 47 U.S.C. § 227, for lack of subject matter jurisdiction, based on application of New York Civil Practice Law and Rules ( CPLR ) § 901(b), which prohibits class-action suits for statutory damages. Bank argues on appeal that Federal Rule of Civil Procedure 23, not state law, governs when a federal TCPA suit may proceed as a class action. We review de novo a district court judgment dismissing a complaint for lack of subject matter jurisdiction. See Sokolowski v. Metro. Transp. Auth., 723 F.3d 187, 190 (2d Cir. 2013). The TCPA prohibits the use of any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless certain statutory exceptions apply. 47 U.S.C. § 227(b)(1)(C). Section 227(b)(3) of the TCPA provides that private parties may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State. Id. § 227(b)(3). The Supreme Court s decision in Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 140 (2012), uprooted much of our TCPA jurisprudence1 by concluding that, despite § 227(b)(3) s state-centric We recently recognized that Mims expressly abrogates Foxhall [Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir. 1998)] and undermines the holdings of Gottlieb [v. Carnival Corp., 436 F.3d 335 (2d Cir. 2006).], Bonime [v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008)], and Holster [v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010)] insofar as those cases rest their interpretation of section 227(b)(3) on the jurisdictional approach that existed prior to Mims. Giovanniello v. ALM Media, LLC, 726 F.3d 106, 113 (2d Cir. 2013) 1 4 No. 13-1746-cv language, there was no convincing reason to read into the TCPA s permissive grant of jurisdiction to state courts any barrier to the U.S. district courts exercise of the general federal-question jurisdiction they have possessed since 1875. Id. at 745. We recently considered whether, in light of Mims fundamental[] shift[ in] the way that we view section 227(b)(3) s if otherwise permitted language, the governing statute of limitations in a TCPA claim was the applicable state limitations period, or the federal catch-all limitations period set forth in 28 U.S.C. § 1658(a).2 Giovanniello v. ALM Media, LLC, 726 F.3d 107, 111 (2d Cir. 2013). We concluded that Mims cannot be construed as requiring us to apply state limitations periods to TCPA claims in federal court. Id. at 114. In reaching this result we recognized that our prior interpretation of section 227(b)(3) as having substantive content, [and] as a delegation of authority to state courts to set the terms of TCPA claims, no longer holds true. Id. at 115 (internal citation omitted). Instead, Mims suggests that in enacting the TCPA, Congress merely enabled states to decide whether and how to spend their resources on TCPA enforcement, and, indeed, Mims emphasizes that Congress had a strong federal interest in uniform standards for TCPA claims in federal court. Id. at 114-15. Nothing about the law at issue here a state civil procedure statute prohibiting class-action claims for statutory damages counsels a different result from that reached in Giovanniello. To the contrary, as we expressly recognized in Giovanniello, both rationales set forth in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008) which held that CLPR § 901(b), not Federal Rule of Civil Procedure 23, We note that the District Court rendered its decision after the Supreme Court s decision in Mims, but before our decision in Giovanniello, and relied primarily on cases which we have now recognized as abrogated by Mims. See Note 1, ante. 2 5 No. 13-1746-cv governed TCPA class action suits have now been rejected. Specifically, Bonime s first rationale that the Erie doctrine required application of state law class-action procedures was overturned by the Supreme Court s decision in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). See Giovanniello, 726 F.3d at 111. And Mims undermined the second rationale, which relied on jurisdictional interpretations of section 227(b)(3).3 See id. at 112-13. Accordingly, we hold that Federal Rule of Civil Procedure 23, not state law, governs when a federal TCPA suit may proceed as a class action. CONCLUSION For the reasons set out above, we VACATE the March 12, 2013 judgment of the District Court, and REMAND for further proceedings consistent with this opinion. In addition, just as Congress knew full well how to displace [the federal] catch-all limitations period with clear language, but chose not to, Giovanniello, 726 F.3d at 115, it knew full well how to preclude TCPA class actions by private parties, but chose not to do so. 3
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