Giovanniello v. The New York Law Publishing Company, No. 07-CIV-1990, 2007 WL 2244321 (SDNY Aug. 6, 2007).
He wanted to be a part of it, New York New York. Unfortunately for counsel for the plaintiff in this unsolicited fax case, he could not make it there.
In this case, federal judge Harold Baer dismissed the plaintiff’s putative class action under the Federal Telephone Consumer Protection Act, noting it was plaintiff’s counsel’s third unsuccessful attempt to bring a similar class action claim in a federal court in New York. There is not much here for the CAFA aficionado. But, for our friends in the state of New York and ardent fans of the Erie Doctrine everywhere, here’s the short version along with some music to entertain you.
Plaintiff’s vagabond shoes were longing to stray to federal court. Other courts had already determined TCPA does not establish a private right of action arising under federal law, so federal question jurisdiction was not an option.
So, the plaintiff filed suit in federal court in the city that never sleeps, asserting diversity jurisdiction under CAFA. The defendant filed a Rule 12 motion alleging lack of subject matter jurisdiction. The defendant argued the amount in controversy requirement was not satisfied because the case could not proceed as a class action. If the case could not proceed as a class action, the damages of all potential plaintiffs could not be aggregated to meet CAFA’s $5,000,000 amount in controversy requirement. (That’s all for CAFA in this post readers). Thus, the maximum amount in controversy was limited to the $500-$1,500 statutory damages for the single unsolicited fax allegedly sent to the named plaintiff, which was not enough to support diversity jurisdiction.
The case hinged on the nature of a New York statute disallowing class action remedies unless they are specifically permitted in the statute providing for the right of action. The TCPA, a federal statute, does not specifically permit recovery in a class action. So, the parties took predictable positions. The defendant argued the New York statute was substantive, thus controlling under Erie. The plaintiff, trying to make a brand new start of it, argued it was a mere procedural statute not binding on a federal court sitting in diversity. Alas, the plaintiff’s little town blues did not melt away. Long story short, the court agreed with the defendant (and quite a few other cases, including two others starring plaintiff’s counsel).