The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This is a putative class action brought by the law-firm plaintiff, Landsman & Funk, P.C. ("Landsman"), a New York professional corporation, against defendant Skinder-Strauss Associates ("Skinder"), a New Jersey partnership, for alleged violations of the Telephone Consumer Protection Act ("TCPA"), codified at 47 U.S.C. § 227. Landsman alleges that on July 15, 2008 Skinder sent it an uninvited and unwelcome fax in violation of the TCPA (Am. Compl. ¶ 9), and wishes to serve as named plaintiff in a class action on behalf of aggrieved recipients of "well over ten-thousand unsolicited fax advertisements" allegedly sent by Skinder since July 9, 2005. (Am. Compl. ¶ 14.) In this pre-answer motion, Skinder moves pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the amended complaint for lack of subject matter jurisdiction on both federal question (28 U.S.C. § 1331) and diversity of citizenship (28 U.S.C. § 1332) grounds.
Under Federal Rule of Civil Procedure 12(b)(1), when a defendant challenges subject matter jurisdiction under Rule 12(b)(1), the plaintiff has the burden of persuasion. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Because there is no presumption of truthfulness as to plaintiff‟s allegations, "the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). When considering a motion to dismiss pursuant to Rule 12(b)(1), a court must discern whether the defendant is mounting a "facial attack" or a "factual attack" to subject matter jurisdiction. "When considering a facial attack," in which a defendant contends that the facts alleged in the complaint fail to establish jurisdiction, "the Court must consider the allegations of the complaint as true, and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion." Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006) (internal citations and quotations omitted). If, however, the challenging party presents a factual challenge contrary to the pleadings, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.
Neither Skinder‟s submissions on this motion nor Landsman‟s opposition papers raise factual disputes relevant to the propriety of this Court‟s jurisdiction over the putative class action. In light of the purely "facial" nature of Skinder‟s jurisdictional challenge, in determining whether federal question or diversity of citizenship exists, the Court will accordingly confine its analysis to the pleadings.
The operative facts in the pleadings, for jurisdictional purposes, are few. In connection with Skinder‟s publication of the New York Lawyer's Diary, Landsman alleges that Skinder transmitted an "unsolicited" single facsimile advertisement from Skinder‟s New Jersey offices to Landsman‟s New York offices on July 15, 2008, "without Plaintiff‟s express invitation or permission." (Am. Compl. ¶¶ 9-10.) Beyond that, Landsman also alleges that it is qualified to represent a class of plaintiffs composed of recipients of "well over ten-thousand (10,000) unsolicited fax advertisements, advertising the commercial availability or quality of any property, goods, or services of Defendant," sent "to fax machines and/or computers belonging to thousands of persons all over." (Compl. ¶ 14.)
Because the current jurisdictional challenge centers on the type of action brought-a TCPA claim-rather than underlying specific facts, the background as succinctly set forth supra is adequate.
Landsman asserts federal question jurisdiction under 28 U.S.C. § 1331, as well as diversity-of-citizenship jurisdiction pursuant to 28 U.S.C. § 1332(d).
A. Federal Question Jurisdiction - § 1331
Skinder moves to dismiss on grounds that there is no federal question jurisdiction for TCPA claims as a matter of law. Skinder submits that the federal question issue is controlled by Third Circuit precedent from Erienet, Inc. v. Velocity Net, 156 F.3d 513 (3d Cir. 1998), which addressed whether federal courts have jurisdiction over private actions filed under the TCPA. Concluding that "Congress intended that private enforcement suits under the TCPA be brought in state, and not federal, courts," and that the TCPA "preclude[s] federal question jurisdiction over such consumer suits,"the Third Circuit dismissed the TCPA claims for lack of subject matter jurisdiction under § 1331. Thus, the Erienet court ruled that 47 U.S.C. § 227(b)(3)*fn1 conferred exclusive jurisdiction on state courts to entertain private suits alleging TCPA violations, and, concomitantly, that federal courts lack federal question jurisdiction over such claims. See Klein v. Vision Lab Telecomms., Inc., 399 F. Supp. 2d 528, 532 (S.D.N.Y. 2005) (citing Third Circuit‟s Erienet precedent in support of proposition that "[w]e recognize that numerous Courts of Appeal have addressed-and unanimously rejected-removal of § 227(b)(3) claims based on federal question jurisdiction.").
In arguing that the Third Circuit‟s controlling Erienet precedent is no longer applicable, Landsman relies upon the Seventh Circuit decision of Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005), which found that a TCPA claim could be heard by a federal court under federal question jurisdiction or diversity jurisdiction. See Brill, 427 F.3d at 451-52. This Court, however, "is bound by controlling decisions of the Third Circuit," not by decisions of other circuits. Pittston Co. v. Sedgwick James, Inc., 971 F. Supp. 915, 919 (D.N.J. 1997). And, "[i]t is, of course, patent that a district court does not have the discretion to disregard controlling precedent simply because it disagrees with the reasoning behind such precedent." Vujosevic v. Rafferty, 844 F.2d 1023, 1030 (3d Cir. 1988). Significantly, since Brill was decided, the District of New Jersey has continued to follow Erienet precedent in finding that "suits brought under the TCPA cannot be filed in or removed to federal court based on federal question ...