United States District Court, N.D. Illinois, Eastern Division
July 2, 2004.
HENRY REPAY d/b/a, LAW OFFICES OF HENRY REPAY, Plaintiff,
THE FLAG COMPANY, INC., Defendant.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Henry Repay filed the instant class action arising
from his receipt of an alleged unsolicited facsimile
advertisement from defendant, The Flag Company, Inc., on or about
February 17, 2004. In relation to this event, plaintiff asserts
the following claims: (1) violation of the Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. § 227 (Count I); conversion
(Count II); violation of the Illinois Consumer Fraud Act, 815
ILCS 505/2 (Count III); and property damage (Count IV). Defendant
removed the instant action, pursuant to 28 U.S.C. § 1441(b), from
the Circuit Court of Cook County, Illinois, to this court.
Plaintiff has moved to remand for lack of subject matter
jurisdiction and for attorneys' fees pursuant to
28 U.S.C. § 1447(c). For the reasons discussed herein, plaintiff's motion for
remand is granted and his motion for attorneys' fees is denied.
A defendant may remove to federal court any civil action
brought in a state court so long as the district court has
original jurisdiction. 28 U.S.C. § 1441(a). Under
28 U.S.C. § 1331, "The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States." In Connors v. Amax Coal Co.,
Inc., 858 F.2d 1226, 1229-30 (7th Cir. 1988), the Seventh
Circuit explained that 28 U.S.C. § 1331 applies only if: (1) an
action "arises under" federal law; and (2) "section 1331
jurisdiction is not preempted by a more specific statutory
provision conferring exclusive jurisdiction elsewhere." The issue
before this court, then, is whether plaintiff's claim under
47 U.S.C. § 227(b)(3) confers exclusive jurisdiction outside the federal
The language of 47 U.S.C. § 227(b)(3) creates a private right
of action that, "a person or entity may, if otherwise permitted
by the law or rules of court of a State, bring in an appropriate
court of that State." Because 47 U.S.C. § 227 is a federal
statute one would think federal subject matter jurisdiction
should exist according to the "arising under" standard of
28 U.S.C. § 1331. The Seventh Circuit has yet to address this issue.
Six courts of appeals and three judges in this district, however,
have considered this issue, and have all come to the "somewhat
unusual conclusion" that there is exclusively state court
jurisdiction for a private right of action under
47 U.S.C. § 227(b)(3). Foxhall Realty Law Offices, Inc. v.
Telecommunications Premium Services, Ltd., 156 F.3d 432, 434 (2d
Cir. 1998). See also Murphey v. Lanier, 204 F.3d 911 (9th
Cir. 2000); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513
(3d Cir. 1998); Nicholson v. Hooters of Augusta, Inc.,
136 F.3d 1287 (11th Cir. 1998), modified, 140 F.3d 898 (11th Cir. 1998);
Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th
Cir. 1997); Int'l Sci. & Tech. Inst. Inc. v. Inacom,
106 F.3d 1146 (4th Cir. 1997); Stonecrafters Inc. v. CM Systems, Inc.,
03 C 50287, 2003 WL 22415976 (N.D.Ill. Oct. 21, 2003); Bernstein
v. New Century Mortgage Corporation, 02 C 3355 (N.D.Ill. Feb.
12, 2003); Constr. Consulting Group, Ltd. v. Gersten Fin. &
Ins., 02 C 3322, 2002 WL 1400472 (N.D.Ill. June 28, 2002).
The lone case to conclude that 47 U.S.C. § 227(b)(3) creates
federal subject matter jurisdiction is Kenro, Inc. v. Fax Daily,
Inc., 904 F. Supp. 912 (S.D.Ind. 1995), aff'd on reh'g
962 F. Supp. 1162 (S.D.Ind. 1997), which was decided before any court
of appeals considered the issue. Accordingly, this court agrees
with the aforementioned courts of appeals, and with the three
judges within this district, that the language, structure,
purpose, and legislative history of 47 U.S.C. § 227(b)(3) all
evince exclusive state court jurisdiction.
Defendant argues that there is presumptively concurrent state
and federal jurisdiction unless explicitly stated otherwise.
Yellow Freight System v. Donnelly, 874 F.2d 404, 405-6 (7th Cir. 1989). However, cases cited for holding concurrent
jurisdiction all dealt with provisions mentioning only federal
jurisdiction and not state jurisdiction. That is, because state
courts are courts of general jurisdiction, there is a presumption
for concurrent jurisdiction for state courts. This door, however,
does not swing the other way granting presumptive federal
jurisdiction when a statute mentions only state court
jurisdiction, because federal courts are courts of limited
jurisdiction. ErieNet, Inc., 156 F.3d at 516-7 ("The permissive
authorization of jurisdiction in state courts does not imply that
jurisdiction is also authorized in federal courts.").
Plaintiff also requests attorneys' fees pursuant to
28 U.S.C. § 1447(c). These fees may be awarded at the discretion of the
court. At least two courts considering this issue have awarded
fees for the attempted removal of TCPA cases. Gold Seal Termite
& Pest Control Co. v. DirectTV, Inc., 1:03 CV00367, 2003 WL
21508177 (S.D.Ind. Jun 10, 2003); Dun-Rite Const. Inc., v.
Amazing Tickets, Inc., 1:03 CV 2310, 2004 WL 440387 (N.D.Ohio
Jan 16, 2004). Nevertheless, "while the courts of appeal have
unanimously rejected [federal jurisdiction] arguments, we agree
with the acknowledgment of several circuits that the issues are
not easy." Murphey, 204 F.3d at 914. Based on the
counterintuitive outcome of the jurisdictional analysis of this
case, and the lack of binding Seventh Circuit precedent, the
court declines to award attorneys' fees to the plaintiff.
For the reasons stated herein, plaintiff's motion to remand is
granted, and his motion for attorneys' fees is denied.
© 1992-2004 VersusLaw Inc.