The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, James Brill, filed a class action suit in the
Circuit Court of Cook County, Illinois, alleging a violation of
the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(3)
("TCPA"), and a common law claim under Illinois law for
conversion against Defendant, Countrywide Home Loans, Inc.
Subsequently, Defendant removed Plaintiff's claims to federal
court. Presently pending before the Court is Plaintiff's Motion
A reading of Plaintiff's Complaint supports the following
summary of the alleged conduct of the Defendant.
Brill is a resident of Cook County, Illinois. Countrywide is a
corporation chartered under New York law doing business and
maintaining offices in Naperville, Illinois.
On June 4, 2004, Robert Brunke, an employee of Countrywide,
sent an unsolicited advertisement to approximately 3,800 fax
machines located in Illinois, including Brill's personal fax
machine. Brill's fax machine, toner and paper were used to print
the advertisement. Plaintiff's TCPA class action suit filed in the Circuit Court
of Cook County, Illinois was removed by Defendant to federal
court based on the Class Action Fairness Act ("CAFA") and federal
Plaintiff argues that the removed action should be remanded to
state court because this Court lacks jurisdiction over the
matter. Specifically, Plaintiff asserts that the claim does not
meet the jurisdictional requirements of the CAFA for this Court
to have jurisdiction over the claim.
In considering a motion to remand, a court's focus is
restricted to its authority to hear the case pursuant to the
removal statute. 28. U.S.C. § 1441. Whether removal was proper is
determined from the record as a whole. Casey v. Hinckley &
Schmitt, Inc., 815 F.Supp. 266, 267 (N.D.Ill. 1993); Kennedy v.
Commercial Carriers, Inc., 739 F.Supp. 406, 409 (N.D.Ill. 1990).
The party seeking to preserve the removal, not the party moving
to remand, bears the burden of establishing that the court has
jurisdiction. Jones v. General Tire and Rubber Co.,
514 F.2d 660, 664 (7th Cir. 1976). If the court finds that it does not
have jurisdiction, then it must remand the case to state court.
Casey, 739 F.Supp. at 267; Commonwealth Edison Co. v.
Westinghouse Elec. Co., 759 F.Supp. 449, 452 (N.D. Ill. 1991).
Defendant removed Plaintiff's claim of a violation of the TCPA,
claiming that Plaintiff had brought a class action under the
CAFA. CAFA amended the diversity jurisdiction requirement of
28 U.S.C. § 1332 so that "district courts shall have original
jurisdiction of any civil action in which the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of
interests and costs, and is a class action in which any member of
a class of plaintiffs is a citizen of a state different from any
defendant." 28 U.S.C. § 1332(d)(2)(A). A violation of the TCPA
allows an injured party "to receive $500 in damages for each such violation."
47 U.S.C. § 227(b)(3)(B). If the court finds the defendant willfully violated
the TCPA, "the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the
amount." 47 U.S.C. § 227(b)(3).
The issue is whether the amount in controversy exceeds the sum
or value of $5,000,000, exclusive of interests and costs. "In a
removed case, the removing party must establish jurisdiction by
evidence that proves a reasonable probability that jurisdiction
exists a reasonable probability that damages could exceed [a
required minimum]." Stamm v. Apple Computer, Inc., No. 04 C
8242, 2005 WL 1307797 (N.D. Ill. March 22, 2005). Where there is
a dispute as to the jurisdictional amount in controversy, the
party seeking the federal forum has the burden of coming forward
with competent proof to establish at least a reasonable
probability that the amount-in-controversy requirement is
satisfied. King v. Wal-Mart Stores, 940 F.Supp. 213, 216 (S.D.
Ind. 1996). Even though it is possible that a "plaintiff's
allegations in the complaint could satisfy the jurisdictional
amount in controversy," such speculation does not "satisfy the
reasonable probability standard." King, 940 F.Supp at 216;
NLFC, Inc. v. Decom Mid-America Inc., 45 F.3d 231, 237 (7th
Cir. 1995); Shaw v. Dow Brands, 994 F.2d 364 (7th Circuit);
Reason v. General Motors Corp., 896 F.Supp 829 (S.D. Ind.
1995); Harmon v. OKI Systems, 902 F.Supp. 176, 178 (S.D. Ind.
Defendant argues that Plaintiff pled for an award of treble
damages, thereby increasing the amount of the controversy above
the jurisdictional threshold. Plaintiff alleged that "if the
evidence shows the violation was willful, plaintiff requests
trebling of the damages." (Therefore, 3,800 faxed violations X
1,500 willful violations ≥ $5 million.) Complaint ¶ 13. However,
Plaintiff does not allege that Brunke's actions were willful, nor
does Plaintiff allege Brunke's actions were authorized by
Countrywide. Furthermore, Defendant provides no evidence to
suggest a reasonable probability that a favorable judgment will award Plaintiff treble damages.
Defendant has failed to come forward with competent proof to
establish at least a reasonable probability that the amount in
controversy requirement is satisfied. Therefore, the controversy
does not exceed the jurisdictional threshold under CAFA.
Defendant argues that federal jurisdiction also exists as an
independent basis of diversity jurisdiction under
28 U.S.C. § 1332 or under federal question jurisdiction authorized by
28 U.S.C. § 1331. "The district courts shall have original
jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interests and
costs, and is between citizens of different states."
28 U.S.C. § 1332(a)(1). "The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States." 28 U.S.C. § 1331.
The TCPA expressly provides an exception to the applicability
of federal jurisdiction statutes over private claims brought
under the Act. "A person or entity may, if otherwise permitted by
laws or rules of court of a State, bring in an appropriate court
of that State. . . ." 47 U.S.C. § 227(b)(3). Other courts have
interpreted the language of the Act as excluding federal
jurisdiction over TCPA claims. The Seventh Circuit has not ruled
on this issue. However, "[c]ourts of appeal having addressed the
issue have consistently held that the TCPA does not grant federal
court jurisdiction over private causes of action brought pursuant
to that Act." Gottlieb v. Carnival Corp., 367 F.Supp.2d 301,
307 (E.D.N.Y. 2005); Foxhall Realty Law Offices, Inc. v.
Telecommunications Premium Services, Ltd., 156 F.3d 432, 434
(2nd Cir. 1998) (Foxhall). "We join the Second, Third, Fourth,
Fifth and Eleventh Circuits in the somewhat unusual conclusion
that state courts have exclusive jurisdiction" over private
actions brought under the TCPA. Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (Murphey). "Six courts of appeal and
three judges in this district however have considered this issue,
and all come to the somewhat unusual conclusion that there is
exclusively state court ...