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City Select Auto Sales, Inc. Individually and As the Representative of A Class of v. David Randall Associates

February 7, 2012

CITY SELECT AUTO SALES, INC. INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
DAVID RANDALL ASSOCIATES, INC. & RAYMOND MILEY, III, DEFENDANTS.



The opinion of the court was delivered by: Simandle, Chief Judge:

OPINION

I. INTRODUCTION

This putative class action raises claims under the Telephone Consumer Protection Act, and is before the Court on Defendants' motion to dismiss. [Docket Item 8.] Defendants, David Randall Associates, Inc. and Raymond Miley, III, argue that this Court lacks subject matter jurisdiction over the dispute because state courts have exclusive jurisdiction over Telephone Consumer Protection Act claims; that Plaintiff's claims are barred by the statute of limitations; that Plaintiff's claims are barred by New Jersey's entire controversy doctrine; and that the Complaint cannot be certified as a class action. As explained further in today's Opinion, the subject matter jurisdiction and res judicata arguments for dismissal are foreclosed by settled law, and the contentions regarding the class claims do not provide a basis for dismissal of the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. The principal issue is therefore whether Plaintiff's claims are timely. Because, as detailed below, it appears from the face of the Complaint that the statute of limitations was tolled for at least fourteen months, the motion to dismiss will be denied.

II. BACKGROUND

With some exceptions, the Telephone Consumer Protection Act prohibits the sending of unsolicited advertisements to a fax machine. 47 U.S.C. § 227(b)(1)(C). The statute provides a private right of action to recover actual damages or $500, whichever is greater. § 227(b)(3)(B). Prior to the Supreme Court's recent decision in Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740, 753 (2012), there was some uncertainty about the scope of the federal courts' jurisdiction over Telephone Consumer Protection Act claims. However, it is now clear that state and federal courts share concurrent jurisdiction over the claims, which arise under federal law. Id.

According to the Complaint, between March and May of 2006, Defendants sent unsolicited faxes to Plaintiff and 29,112 other unique fax numbers advertising roofing services. Compl. ¶¶ 13-15. The parties agree that a four-year statute of limitations applies to actions under the Telephone Consumer Protection Act. See 28 U.S.C. § 1658(a).*fn1 This case was filed May 10, 2011. [Docket Item 1.] Thus, unless the statutory period is extended by nearly a year, all of Plaintiff's claims -- and those of any other putative class member -- would be barred.

Plaintiff contends that its claims were tolled by the pendency of a state court putative class action. Compl. ¶ 6. On May 4, 2009, G. Winter's Sailing Center, Inc. filed suit against David Randall Associates, Inc. in New Jersey Superior Court "individually and as the representative of a class of similarly-situated persons," complaining of this same Spring 2006 round of unsolicited faxes allegedly sent by David Randall Associates, Inc. Compl. ¶ 6; Defs.' Ex. 2 (state complaint). That state pleading alleged that "On information and belief, Defendant faxed the same and similar advertisements to Plaintiff and more than 39 other recipients without first receiving the recipients' express permission or invitation." Ex. 2 ¶ 12.

No motion for class certification was ever filed in the Superior Court action. Pls.' Opp. Br. Ex. (letter order). Instead, when the plaintiff in that action finally moved for leave to file that motion nearly two years into the action, the state court determined that the motion had come too late and that trial would proceed with the single plaintiff. Id. The case then settled shortly after that, and was closed on April 27, 2011. Defs.' Ex. C (state court docket).

III. SUBJECT MATTER JURISDICTION

As mentioned above, after Defendants had filed their motion to dismiss for lack of jurisdiction, the United States Supreme Court clarified that federal courts may hear claims under the Telephone Consumer Protection Act as a matter of federal question jurisdiction pursuant to 28 U.S.C. § 1331, squarely rejecting Defendants' argument for exclusive state court jurisdiction.

Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740, 753 (2012). This Court therefore has subject matter jurisdiction over these claims.

IV. AFFIRMATIVE DEFENSES

A. Standard

A complaint may be dismissed under Rule 12(b)(6) on the basis of an affirmative defense when the defense appears on the face of the complaint. Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001); Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n. 10 (3d Cir. 1978). The statute of limitations and the entire controversy doctrine are both affirmative defenses based on the content of the ...


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