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Benedia v. Super Fair Cellular

September 26, 2007

PHIL BENEDIA, PLAINTIFF,
v.
SUPER FAIR CELLULAR, INC. AND JOHN DOES 1-10 DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Before the court is defendant Super Fair Cellular, Inc.'s ("Super Fair") motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons explained below, we deny defendant's motion.

BACKGROUND

Benedia alleges that he received seven unsolicited fax advertisements from Super Fair between July 19, 2004 and October 14, 2004. Compl. ¶ 9. In addition to claims for conversion and for violating the Illinois Consumer Fraud Act, Benedia claims that Super Fair's "junk faxes" violate the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. TCPA § 227(b)(5) ("Private right of action") expressly refers to actions brought in state court:

A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State:

(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

There is no corresponding provision expressly creating a private right of action in federal court, nor is there an express statute of limitations. Benedia contends that the four-year, federal "catch-all" provision applies. 28 U.S.C. § 1658(a). Super Fair argues that we should apply Illinois' two-year statute of limitations for statutory penalties, 735 ILCS 5/13-202, in which case Benedia's TCPA claims are untimely.

DISCUSSION

A. Legal Standard

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997).

B. Subject Matter Jurisdiction

Although Super Fair moves to dismiss Benedia's complaint pursuant to Fed. R. Civ. P. 12(b)(6), it flirts with the contention that we lack jurisdiction to hear Benedia's claim. See Def. Reply at 12-14. The Seventh Circuit's decision in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) settled this issue. In Brill, the Court concluded that TCPA claims brought in state court may be removed to federal court under either the Class Action Fairness Act ("CAFA") or the general removal provision, 28 U.S.C. § 1441(a). Brill, 427 F.3d at 450. Section 1441(a) removal is available because "a claim that a business violated the Telephone Consumer Protection Act arises under federal law." Id.; see also id. at 451 ("[R]emoval is authorized not only by the Class Action Fairness Act but also by § 1441, because the claim arises under federal law."). Although "minimal diversity of citizenship" was present in Brill for purposes of removal pursuant to CAFA, id. at 447, the Court clearly stated that federal question jurisdiction was also available. See G.M. Sign, Inc. v. Franklin Bank, S.S.B., No. 06 C 0949, 2006 WL 1132386, *3 (N.D. Ill. April 19, 2006) (Brill "clearly stands for the proposition that federal courts have 'arising under' ...


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