Fenza’s Auto, Inc. v. Montagnaro’s, Inc., et al, 10-3336 (N.J. 3/21/11)

So there’s this guy, let’s call him Mr. Fenza. A few years ago he fell in love with a girl who worked at a pizza shop. She made wonderful pizzas with a soft chewy crust and that were smothered in cheese so good, you would think the cow it came from was literally a holy cow. The best part of the relationship with the pizza lady? Fenza got all the pizzas he wanted, and when she came home at night she smelled like fresh bread and tomato sauce. Fenza was the happiest man alive. However, all good things must come to an end.

The intense yet short lived love affair between Fenza, the pizza lady, and pies came to a halt after a heated altercation about whether New York style pizza or Chicago deep dish pizza was the superior pizza. She thought Chicago deep dish was too gimmicky and unauthentic, and she could not be with a man who thought otherwise. And with that, she packed her things and disappeared into the night’s fog. All that remained of their love was a few cold slices of pizza in his fridge and the lingering odor of pepperoni on the pillow over which she slept.

Torn and broken hearted, he vowed to never eat pizza again; in fact, he swore off anything that had anything to do with pizza. He decided to dedicate his life to combating anyone in the pizza industry. This, of course, included harassing pizza delivery boys, egging pizza stores, and most importantly, bringing suit against pizza restaurants. His misplaced anger and vengeful spirit escalated all the way to the federal court system.

What happened was simple, this pizza place called Montagnaro’s, Inc. faxed its menu to  Frenza’s business, which happened to be an automobile dealership. This happened a few months after the painful separation; it was just another reminder of the love that could never be. Frenza sat in his office one day feeling good for the first time in a while. He had made a few sales and was thinking “Hey, I think I’m going to be alright.” Moments later the fax machine rang and a fax was transmitted. He turned to pick it up, looked at the contents of the fax, and what did he find? A pizza restaurant menu that he neither asked for nor invited.

He was enraged, for he was reminded of his lost love, and he felt the universe was mocking him and playing games. He yelled and shredded the menu. Of course, he did the next logical thing… he called his lawyer and said “I want to sue those pizza lovers!”

After doing some lawyer investigation work, the lawyer found out that Montagnaro’s had been sending out facsimiles to several thousand other people without permission, in violation of the Telephone Consumer Protection Act (TCPA), the Federal government’s way of combating those pesky telemarketers. Thus, a class action against Montagnaro’s, Inc. was born.

(Editors’ Note: Up to this point, we have taken extensive liberties with the facts. How else could we make another TCPA/CAFA case interesting for you? The facts stated above regarding  Mr. Fenza’s lost love and his “revenge” against pizza lovers are a work of pure fiction and any similarity to real persons and events is merely coincidental. That’s what is stated at the end of the credits at the end of movies, isn’t it? What is true is that the plaintiff received an unsolicited fax from the defendants and sued the defendants for a violation of the TCPA. Now, to the real CAFA analysis, along with some continued embellishments to keep your interest.)

After the defendants received service, they wanted desperately to remove the case from state court to federal court. Apparently, they had heard that those federal people like pizzas, and in hopes for a ruling in their favor, they sought to remove. The defendants figured what better way to guarantee removal than to give not one, but two really good (or so they thought) arguments for why the federal court had jurisdiction over this claim.

Now, remember in civil procedure class we were taught there are two big ways to get an action in federal court, or as my civil procedure professor liked to call it, the federal hook? Well, if you don’t remember, allow me to refresh your memory. Federal question jurisdiction, a.k.a 28 U.S.C § 1331, and diversity Jurisdiction, a.k.a 28 U.S.C § 1332 (specifically §1332(d) for purposes of a class action).

Argument 1 goes a little something like this. The plaintiffs are suing us pursuant to the TCPA, which is a federal statute, and thus, there is federal question jurisdiction. The court almost fell for this argument. However, those people at the federal court did some digging around and found that while the TCPA is a federal statute, it doesn’t necessarily allow federal courts jurisdiction over private TCPA claims because the language of the statute specifically says this is an action that is to be brought in the appropriate STATE court. In other words, the express language of the TCPA makes no provision for suits in federal court. Reading that with relevant and binding precedent discussing the TCPA, the court concluded that Congress’ intent was to foreclose federal jurisdiction under §1331.

Argument 2 is an attempt to say, “Yes, we know we have 30 days from the time we receive the initial complaint to file a notice of removal, but we have a good excuse for not having done so.” The defendants assert they didn’t discover their basis for removal, which in this case is diversity, until the 30 days had elapsed.

The court said well yes, it is true that according to §1446(b) the 30 days begin to run when the circumstances described in the complaint, combined with relevant information available to the defendant, would demonstrate a basis for federal jurisdiction. However, the court explained, if the defendants would have done their due diligence and probed a little, the basis for removal would have been apparent to them. The court held there was no excuse in this case for not removing within 30 days.

And thus, the two arguments were thrown out. What do we conclude? Federal courts don’t like pizzas either!

By: Maha Abualfaraj