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Fenza's Auto, Inc., Individually and As the Representative of A v. Montagnaro's

March 21, 2011

FENZA'S AUTO, INC., INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY- SITUATED PERSONS, PLAINTIFF,
v.
MONTAGNARO'S, INC., ALBIN MONTAGNARO, AND ANTHONY MONTAGNARO, DEFENDANTS.



The opinion of the court was delivered by: Kugler, United States District Judge:

NOT FOR PUBLICATION (Doc. Nos. 10, 13, 26)

OPINION

This matter concerns Plaintiff's receipt of a restaurant menu via facsimile from Defendants' pizzeria. Plaintiff claims that the menu was an unauthorized solicitation in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Plaintiff asserts claims for conversion and violation of the TCPA on behalf of himself and a putative class of plaintiffs who allegedly received unauthorized facsimile solicitations from Defendants. This matter comes before the Court pursuant to Defendants' motion to dismiss the Complaint for failure to state a claim (Doc. No. 10), Plaintiff's motion to remand the matter back to the Superior Court of New Jersey for lack of subject-matter jurisdiction (Doc. No. 13), and Plaintiff's motion for leave to file supplemental briefing in support of its motion to remand (Doc. No. 26). For the reasons discussed below, the Court grants Plaintiff's motions and remands the matter to state court for lack of subject-matter jurisdiction. The Court denies Defendants' motion to dismiss as moot.

I.BACKGROUND

A.The Statutory Framework

"Enacted in 1991 as part of the Federal Communications Act, the TCPA seeks to deal with an increasingly common nuisance -- telemarketing." Erienet, Inc. v. Velocity Net, 156 F.3d 513, 514 (3d Cir. 1998). The TCPA prohibits "various uses of automatic telephone dialing systems, the initiation of certain telephone calls using artificial or prerecorded voices, and the use of any device to send an unsolicited advertisement to a telephone facsimile machine." Id. at 514 (citing 47 U.S.C. § 227(b)). The TCPA authorizes states to bring civil actions in federal court on behalf of their residents for violations of the TCPA. See 47 U.S.C. § 227(f). The statute also creates the following 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 or the regulations prescribed under 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.

47 U.S.C. § 227(b)(3). The TCPA makes no provision for private claims in federal court. The ban on unsolicited facsimile advertisements does not apply if: (1) the sender has an "established business relationship" with the recipient, 47 U.S.C. § 227(b)(1)(C)(i); (2) the sender obtained the recipient's facsimile number from "a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution," 47 U.S.C. § 227(b)(1)(C)(ii); or (3) the advertisement contains a disclosure statement that provides, among other things, a telephone number and facsimile number that the recipient can contact to unsubscribe from any future distributions, 47 U.S.C. § 227(b)(1)(C)(iii). The TCPA also provides that "[i]f the court finds that the defendant willfully or knowingly violated the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times" the statutory amount of $500 per violation. 47 U.S.C. § 227(c)(5).

B.Factual and Procedural Background

On February 9, 2007, Plaintiff, a Pennsylvania corporation, received a facsimile from Defendants. The facsimile contained a menu of food items served by Defendants at their restaurants. It included prices, coupons, contact information for Defendants' five locations, and "Three Easy Steps" to placing an order with Defendants. (Compl. Ex. A). The facsimile also contained the following disclaimer: "If you received this fax in error and would like to be removed from our database, call toll free 1-800. . . ." (Id.). Plaintiff alleges that it did not "invite" or authorize Defendants to send it advertisements via facsimile. (Compl. ¶ 11). Plaintiff further claims that "Defendants faxed the same and similar advertisements to Plaintiff and more than 39 other recipients without first receiving the recipients' express permission or invitation." (Compl. ¶ 14). According to Plaintiffs, by sending facsimiles to recipients without authorization, Defendants damaged the recipients by wasting paper, toner, and time spent by employees sorting and discarding unauthorized facsimiles.

Plaintiff filed its Complaint in the Superior Court of New Jersey. It asserts both individual and class action claims for violations of the TCPA and common law conversion. Plaintiff alleges that Defendants use bulk facsimile transmissions as a means of marketing their food and services without first obtaining permission from the recipients to send the facsimiles. Plaintiff defines the putative class for the TCPA claim as:

All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of any property, goods, or services by or on behalf of Defendants, (3) with respect to whom Defendants did not have prior express permission or invitation for the sending of such faxes, and (4) with whom Defendants did not have an established business relationship. (Compl. ¶ 17). Plaintiff alleges the same putative class for its common law conversion claim except that it includes persons who received facsimile messages "on or before six years prior to filing of this action." (Compl. ¶ 31). Plaintiff seeks $500 in statutory damages per unauthorized transmission under the TCPA, compensatory damages for the conversion claim, and an injunction prohibiting Defendants from engaging in further TCPA violations. Plaintiff also requests that the Court treble the statutory damages if Defendants knowingly violated the TCPA.

The Complaint includes the following allegation regarding federal jurisdiction: "Federal jurisdiction does not exist because no federal question or claim is asserted and Plaintiffs' individual claims are worth less than $75,000.00, inclusive of all forms of damages and fees. Plaintiff expressly disclaims any individual recovery in excess of $75,000.00, inclusive of all forms of damages and fees." (Compl. ¶ 7).

On June 30, 2010, Defendants removed the case to this Court. The Notice of Removal states that the Court has federal-question jurisdiction under 42 U.S.C. § 1331 because Plaintiff asserts a claim under federal law. The Notice of Removal makes no mention of diversity jurisdiction under 42 U.S.C. § 1332. The Notice of Removal states that Defendants were served with and received a copy of the Complaint "no earlier than May 31, 2010." (Notice of Removal ¶ 4). Thus, Defendants assert that removal on the basis of federal-question jurisdiction was timely because they removed the case within thirty days of receiving copies of the Summons and Complaint. See 28 U.S.C. § 1446(b) (requiring removal within thirty days).

On August 2, 2010, Defendants moved to dismiss the Complaint (Doc. No. 10). Defendants argue that Plaintiff fails to state a claim for relief under the TCPA and fails to state a claim for common law conversion. Defendants also argue that Plaintiff does not allege facts sufficient to satisfy Federal Rule of Civil Procedure 23's requirements for class certification.

On August 23, 2010, Plaintiff opposed Defendants' motion to dismiss and made a motion to remand the matter to state court for lack of subject-matter jurisdiction (Doc. No. 13). Plaintiff argues that this Court lacks jurisdiction because the Third Circuit has held that private claims under the TCPA do not give rise to federal-question jurisdiction under 28 U.S.C. ยง 1331. See Erienet, Inc., 156 F.3d at 519 ("We conclude that because the TCPA reflects Congress' intent to authorize ...


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