Holster, III v. BNA Subsidiaries

2010 DNH 044

• Court: District Court, D. New Hampshire
• Decided: March 9, 2010
• Docket: 09-CV-365-SM
• Status: Published

Opinion

Holster, III v . BNA Subsidiaries 09-CV-365-SM 03/09/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Charles E . Holster III, individually, and on behalf of all others similarly situated, Plaintiff

v. Civil N o . 09-cv-365-SM Opinion N o . 2010 DNH 044 BNA Subsidiaries, LLC, Defendant

O R D E R

Defendant moves to dismiss this private claim under the

Telephone Consumer Protection Act (“TCPA”), arguing that the

court lacks subject matter jurisdiction under either 28 U.S.C.

§ 1331 or § 1332. Plaintiff objects.

There is a split of authority among the courts of appeals

that have considered whether there is federal question

jurisdiction over private TCPA claims. Several courts have

concluded that there is no such jurisdiction. See, e.g., Murphey

v . Lanier, 204 F.3d 911, 915 (9th Cir. 2000); Foxhall Realty Law

Offices, Inc. v . Telecomms. Premium Servs., Ltd., 156 F.3d 432,

435 (2d Cir. 1998); ErieNet, Inc. v . VelocityNet, Inc., 156 F.3d

513, 519 (3d Cir. 1998); Nicholson v . Hooters of Augusta, Inc.,

136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v . Houston

Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997); Int’l Science & Tech. Inst., Inc. v . Inacom Commc’ns, Inc., 106 F.3d 1146, 1156

(4th Cir. 1997). But the Seventh Circuit, following subsequent

Supreme Court precedent, determined that federal question

jurisdiction is properly invoked in private TCPA claims. See

Brill v . Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th

Cir. 2005) (Easterbrook, J., joined by Posner & Rovner, J J . ) .

The court of appeals for this circuit has yet to confront the

issue.

I think the Seventh Circuit’s view is the most persuasive.

As the court noted in Brill, the pertinent statutory provision

. . . does not mention removal or the general federal question jurisdiction. It does not declare state jurisdiction to be exclusive. Thus it does not expressly override a defendant’s removal rights under . . . § 1441 (because a claim that a business violated the Telephone Consumer Protection Act arises under federal law) . . . .

Brill, 427 F.3d at 450. A claim arising under federal law is a

claim over which federal courts have subject matter jurisdiction,

unless Congress has explicitly stripped that jurisdiction.

Congress has not expressly stripped the federal courts of federal

question jurisdiction over TCPA claims, and the statute’s

reference to state jurisdiction over such claims is a reference

to concurrent, not exclusive, jurisdiction.

2 For the reasons given, defendant’s motion to dismiss

(document n o . 11) is denied.

SO ORDERED.

March 9, 2010

cc: Aytan Y . Bellin, Esq. Michael J. Sheehan, Esq. Todd C . Bank, Esq. Chad R. Bowman, Esq. Michael D. Sullivan, Esq. William L. Chapman, Esq.