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Fitzgerald v. Gann Law Books, Inc.

United States District Court, D. New Jersey

July 29, 2013

NICHOLAS FITZGERALD, on behalf of himself and all others similarly situated, Plaintiff,
v.
GANN LAW BOOKS, INC., GANN LEGAL EDUCATION FOUNDATION, INC. and MICHAEL PROTZEL, Defendants

For NICHOLAS FITZGERALD, on behalf of himself and all others similarly situated, Plaintiff: AYTAN YEHOSHUA BELLIN, BELLIN & ASSOCIATES LLC, White Plains, NY.

For GANN LAW BOOKS, INC., GANN LEGAL EDUCATION FOUNDATION, INC., MICHAEL PROTZEL, Defendants: ALLYN ZISSEL LITE, MAYRA VELEZ TARANTINO, LITE DEPALMA GREENBERG, LLC, NEWARK, NJ.

OPINION

HON. KEVIN MCNULTY, United States District Judge.

This matter comes before the Court upon Defendants' motion to dismiss the Complaint, which is pleaded as a class action. Plaintiff, on behalf of himself and

Page 582

others similarly situated, alleges that Defendants have " caused to be sent thousands of unsolicited fax advertisements for goods and/or services without proper-opt-out notices," in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (" TCPA" ). Complaint, filed July 26, 2011, ECF No. 1 (" Complaint" ). The only private cause of action explicitly provided for in TCPA is a state-court right of action, which is available only " if otherwise permitted by the laws or rules of court of a State." 47 U.S.C. § 227(b)(3). [1] And under the " law or rules" of New Jersey, a TCPA claim cannot be maintained in state court as a class action. [2]

In Defendants' view, a federal-court TCPA class action, no less than a state-court action, must comply with " the laws or rules of court of [this] State." 47 U.S.C. § 227(b)(3). Thus, in their motion to dismiss, Defendants maintain that New Jersey state law also operates to bar a TCPA claim from being maintained as a class action here in federal court. Plaintiff responds that, in federal court, the appropriateness or not of class action treatment is governed solely by Rule 23 of the Federal Rules of Civil Procedure (" Rule 23" ). In Plaintiff's view, a state-law prohibition of private TCPA class actions has no force here in federal court.

Judges in this District have had occasion to examine this issue on several occasions. [3] Applying U.S. Supreme Court precedent, those cases have uniformly held that Rule 23, not state law, governs the viability of a class action brought under TCPA in federal court. I agree, and I also reach the same result as to a supplemental claim brought under New Jersey state law. Accordingly, I will deny the Defendants' Motion to Dismiss.

I. Factual Background

Gann Law Books, Inc. and its " sister charitable foundation," Gann Legal Education Foundation, Inc. (collectively, with defendant Protzel, " Gann" ) publish legal

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treatises, " primarily in areas of New Jersey law," and offer " live and web-based seminars" qualifying for credit under New Jersey's mandatory continuing legal education system. Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiff's Class Action Claims, July 27, 2012, ECF No. 46-2 (Def. 2nd MTD" ) at 4. According to Gann, the named plaintiff, Nicholas Fitzgerald, " is one of Gann's long-standing attorney customers," although the Complaint identifies him only as " a New Jersey Resident who resides and works in Jersey City, NJ." Complaint at ¶ 6.

Fitzgerald specifically identifies six faxed advertisements: one received on February 26, 2009, one on August 14, 2009, three received on August 13, 2009, and one received on April 8, 2011. Id. ¶ 10. He alleges that these faxed advertisements did not contain opt-out notices, or that the notices they did contain were legally defective under TCPA. [4] In support of his class action allegations, Fitzgerald alleges that for approximately four years, Gann " sent or caused to be sent from New Jersey at least hundreds--if not thousands--of unsolicited facsimile advertisements and/or facsimile advertisements lacking the proper opt-out notices to Plaintiff and the Classes." Id. ¶ 20.

II. Procedural History

Plaintiff Fitzgerald filed his Complaint on July 26, 2011, and the case was assigned to District Judge Hochberg. While this case has been pending, the law has developed quickly.

Gann moved to dismiss the Complaint on September 23, 2011. Defendants' Motion to Dismiss for Lack of Jurisdiction, ECF No. 11 (" Def. 1st MTD" ). On December 30, 2011, District Judge Hochberg administratively terminated that first motion to dismiss pending the outcome of two then-pending cases: Mims v. Arrow Financial Services, LLC , __ U.S. __, 132 S.Ct. 740, 181 L.Ed.2d 881 (Jan. 18, 2012), and Landsman & Funk PC v. Skinder-Strauss Associates , 640 F.3d 72 (3d Cir. 2011), opinion reinstated in part , 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012) (" Landsman I " ).

On July 27, 2012, following the resolution of those two cases, Gann filed a renewed motion to dismiss. See Def. 2d MTD. TCPA's grant of a right of action if " otherwise permitted by the laws or rules of a court of a state," argued Gann, incorporated New Jersey state law that would bar class action treatment. Id. at 2-3. Fitzgerald countered that this interpretation of the TCPA's language " flies directly in the face of the recent decision of the Supreme Court in [ Mims ] that holds that state laws and state rules of court do not apply to private TCPA actions brought in federal courts." Plaintiff's Memorandum ...


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