Menachem Raitport v. Crown Kosher

2011 DNH 202

• Court: District Court, D. New Hampshire
• Decided: December 5, 2011
• Docket: Case No. 09–cv–156–SM
• Status: Published

Opinion

Menachem Raitport v . Crown Kosher 09-CV-156-SM 12/5/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Menachem Raitport, Plaintiff

v. Case N o . 09-cv-156-SM Opinion N o . 2011 DNH 202 Crown Kosher Meat Market, Inc., and Harbour Capital Corporation, Defendants

O R D E R

This case is fraught with ambiguity in that the federal

statute, the Telephone Consumer Protection Act (“TCPA”), which

creates a private right of action for sending certain prohibited

unsolicited facsimile advertisements, is drafted in such an

irregular way that its meaning is susceptible to multiple

interpretations, each of which is odd but possible, and none of

which is plainly correct1. It is simply not apparent what

Congress intended in drafting the act: Is the private cause of

action a federal one? Do the federal courts have federal

question jurisdiction over such claims under 28 U.S.C. § 1331,

given the odd limiting language Congress used? If subject matter

jurisdiction is limited to consenting state courts, do federal

1 In creating a private right of action, Congress used unique language. Per the federal statute, “[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 [an action].” 47 U.S.C.A. § 227(b)(3) (emphasis added). courts have diversity jurisdiction over such claims under 28

U.S.C. § 1332? If there is federal question and diversity

jurisdiction over such claims in the federal courts, has Congress

defined the federal cause of action in such a manner that it can

only be litigated in state court, even assuming federal

jurisdiction?

For those who might think the referenced confusion to be

exaggerated, a brief review of the transcript of oral argument in

the United States Supreme Court in Mims v . Arrow Financial

Services, LLC, N o . 10-1195 on November 2 8 , 2011, should prove the

point 2 . The decision in Mims will resolve a fundamental

question, necessary to proceeding in this case: Does this court

have jurisdiction over this claim? And, even if this court does

have jurisdiction, is the claim, as statutorily described, one

that, nevertheless, must be pursued, if at all, in state court?

Perhaps other significant ambiguities in the statute, relevant to

this litigation, will be addressed as well 3 .

2 Chief Justice Roberts described the statute as the “strangest statute I have ever seen.” Mims Oral Argument Transcript, N o . 10-1195 at 4 9 , 24-25. 3 For example, the TCPA, by its language, purports to govern only “unsolicited facsimile advertisements” and defines the term. The accompanying regulations, however, appear to regulate solicited facsimile advertisements as well. This surely cannot b e , given the plain language in the TCPA itself.

2 Since the outcome in Mims is not predictable, but will be

dispositive with respect to jurisdiction, further expenditure of

time and resources would be unwise, given the uncertainty. Mims

of course, directly implicates this court’s previous order

denying defendant’s motion to dismiss for lack of subject matter

jurisdiction.

All pending motions are denied without prejudice to refiling

after the United States Supreme Court issues its decision in

Mims. The case is stayed pending further order of this court.

SO ORDERED.

December 5 , 2011

cc: Aytan Y . Bellin, Esq. Michael J. Sheehan, Esq. William E . Christie, Esq.