The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Clean Air Council (CAC), filed this suit in the Court of Common Pleas of Dauphin County, Pennsylvania, against defendants, Sniffex, Inc., and Paul Johnson. The complaint alleges that Johnson is the president and CEO of Sniffex and that defendants caused an unsolicited fax to be sent to CAC's fax machine.
CAC makes five claims, two under the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, two under state law for conversion and trespass to chattels, and one against defendant Johnson to pierce the corporate veil. Plaintiff wants this case to proceed as a class action, so it seeks damages on behalf of itself and "as a representative of a class of similarly situated individuals nationwide."
Defendants removed the action to this court, asserting that we have federal-question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332(a).
We are considering Plaintiff's motion to remand. Plaintiff argues we have no federal-question jurisdiction because the TCPA places exclusive jurisdiction of private TCPA claims in state court. CAC also argues we have no section 1332(a) diversity jurisdiction because each plaintiff in a section 1332(a) diversity case must meet the $75,000 threshold in that section, and CAC does not seek damages for any plaintiff in excess of $1,500.
The complaint alleges the following. CAC is a non- profit organization with offices in Harrisburg, Pennsylvania. (Compl. ¶ 1.) Defendant Sniffex is a corporation with its office in Irving, Texas, (id., ¶ 2), and defendant Johnson is the president and CEO of Sniffex. (Id., ¶ 3.) The notice of removal supplies the information that Sniffex's headquarters is in Irving, Texas (Notice of Removal, ¶ 4) and that Johnson is a citizen of Texas. (Id., ¶ 5.)
The complaint alleges that the defendants caused a fax to be sent to CAC's fax machine on or about October 16, 2005, that advertised their travel packages.*fn1 CAC had not consented to receive the fax, which lacked complete information at its top or bottom to identify the sender, as required by law. (Compl. ¶¶ 9-13).
In count I, Plaintiff makes a TCPA claim for a violation of 47 U.S.C. § 227(b)(1)(C), which makes it illegal to send unsolicited faxes. Under section 227(b)(3)(B), this count seeks statutory damages of $500 for each unsolicited fax sent. In count II, Plaintiff alleges the violations of the TCPA were willful and knowing and seeks statutory damages for such a violation of the TCPA under section 227(b)(3) of three times the $500 statutory damages for a total of $1,500 for each violation. In count III, Plaintiff makes a state-law claim for conversion of its electricity, ink, paper and other resources for the unsolicited faxes and seeks damages in the amount of three dollars for each violation. In count IV, Plaintiff makes a state-law claim for trespass to chattels for preventing Plaintiff from using its telephone lines and fax machine while the unsolicited faxes were being transmitted and for using Plaintiff's electrical power, paper and ink. It seeks three dollars in damages for each violation. In count V, Plaintiff seeks to impose liability on Johnson individually by piercing the corporate veil.
The complaint makes certain class-action allegations. In pertinent part, Plaintiff identifies the class as "all persons who received the same or similar fax as Plaintiff without providing to the Defendants specific authorization to send the same." (Compl. ¶ 54.) Plaintiff alleges that:
[T]he Defendants or their agents have sent unsolicited facsimile advertisements to many persons in addition to the named Plaintiff. . . . the number of persons affected by the Defendants' violation is large, possibly in the tens of thousands . . . . (Id., ¶ 52.) In the ad damnum clause of the complaint, Plaintiff requests that each member of the class receive $1,500 in damages under the TCPA for each fax sent and three dollars in damages for the state-law claims.
A. Federal-Question Jurisdiction Under 28 ...