On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, DC-23204-03.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2005
Before Judges Skillman, Parrillo and Grall.
Plaintiff Richard M. Zelma appeals from an order of the Special Civil Part of the Law Division dismissing his complaint under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227, as untimely because it was not filed within the two-year limitation provided for pursuant to N.J.S.A. 2A:14-10. We conclude that such actions must be filed within the four-year limitation period provided in 28 U.S.C.A. § 1658(a) and reverse.*fn1
Plaintiff alleged that defendants Richard Konikow and Konikow Associates transmitted twelve unsolicited advertisements by telephone facsimile machine between January 1 and April 30, 2000, contrary to 47 U.S.C.A. § 227(b)(1)(C). He also claimed that the facsimiles did not include required information identifying the source of the transmission, contrary to 47 U.S.C.A. § 227(d)(1). He sought statutorily authorized damages of $500 per violation, trebled. 47 U.S.C.A. § 227(b)(3)(B). Zelma filed the complaint on October 29, 2003, more than three years after the claimed violations.
A "state court must apply federal law in determining when a litigant may assert a claim or defense originating in a federal statute. . . . Thus, a state court hearing a cause of action arising under a federal statute must apply the relevant federal statute of limitations." Beneficial Fin. Co. of Atlantic City v. Swaggerty, 86 N.J. 602, 607-08 (1981).
Two federal statutes are relevant to the question of federal law presented here. The statutes are 28 U.S.C.A. § 1658(a), which supplies "a general, 4-year limitations period for any federal statute . . . enacted [after December 1, 1990] without one of its own," N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 n., 115 S.Ct. 1927, 1930 n., 132 L.Ed. 2d 27, 32 n. (1995); see Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 380 n.14, 124 S.Ct. 1836, 1844 n.14, 158 L.Ed. 2d 645, 655 n.14 (2004), and the TCPA, which was enacted in 1991 and gives state courts exclusive subject matter jurisdiction over private claims based on violations such as the prohibited facsimile transmissions alleged here, 47 U.S.C.A. § 227(b)(1)(C), (b)(3);*fn2 see Zelma v. Market U.S.A., 343 N.J. Super. 356, 359-60, 364 (App. Div. 2001).
Read together, the statutes raise the question whether Congress intended to apply the "catchall" four-year limitation period provided in 28 U.S.C.A. § 1658(a) to private actions arising under the TCPA or to defer to local limitation periods. Section 1658 provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.
[28 U.S.C.A. § 1658(a) (emphasis added).] The TCPA provides:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action to enjoin or recovery damages for a violation of the TCPA or specified regulations promulgated pursuant to ...