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Landsman & Funk Pc v. Skinder-Strauss Associates

April 4, 2011

LANDSMAN & FUNK PC, AND ALL OTHERS SIMILARLY SITUATED, APPELLANT IN 09-3105
v.
SKINDER-STRAUSS ASSOCIATES, A NEW JERSEY PARTNERSHIP GOODRICH MANAGEMENT CORP, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, APPELLANT IN 09-3532
v.
AFGO MECHANICAL SERVICES INC GOODRICH MANAGEMENT CORP, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED V. FLIERWIRE INC DOING BUSINESS AS SCHEIN MEDIA GOODRICH MANAGEMENT CORP, APPELLANT IN 09-3793



Appeals from the United States District Court for the District of New Jersey (D.C. Civil Nos. 2-08-cv-03610, 2-09-cv-00043, and 2-08-cv-05818) District Judges: Honorable Katharine Hayden, Honorable William J. Martini, and Honorable Peter G. Sheridan

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued May 26, 2010

Before: McKEE, Chief Judge, RENDELL and GARTH, Circuit Judges.

OPINION OF THE COURT

A.

This consolidated appeal encompasses three class actions brought in the District Court for the District of New Jersey under the Telephone Consumer Protection Act (―TCPA‖), 47 U.S.C. § 227(b). The TCPA is a unique federal statute that provides a private right of action for recipients of unsolicited facsimiles, as well as statutory damages of $500 per ―violation.‖ The plaintiffs in these suits alleged that each respective defendant sent over 10,000 unsolicited fax advertisements to plaintiffs at their New York or New Jersey offices, and to thousands of others throughout the country, in violation of the TCPA.*fn1 The plaintiffs in each case requested more than $5 million in damages for themselves and the members of the classes they represented. All three cases were dismissed by the District Courts on the grounds that plaintiffs' claims did not fulfill the requirements of diversity jurisdiction.*fn2 Although the District Courts' specific reasons for dismissal varied slightly, a common question arises in our review of each of the cases: whether, notwithstanding our ruling in ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir. 1998), that private TCPA claims do not present a federal question, the federal courts can exercise diversity jurisdiction over private suits brought under the TCPA. On appeal, appellees contend that the three District Courts that ruled on the issue of jurisdiction erred because none held - as they should have - that there can be no diversity jurisdiction over claims under the TCPA.*fn3 Because this argument, if adopted, would be dispositive of all three cases - in that dismissal would be appropriate in each case if it is correct - we address this issue before considering other issues raised as to the propriety of the District Courts' rulings in each case.

In ErieNet, we held that Congress intended to divest federal courts of federal question jurisdiction over individual TCPA claims. We are now called upon to decide whether our reasoning in ErieNet extends to diversity jurisdiction. That is, did Congress intend that these actions should be maintained exclusively in state courts such that federal courts cannot exercise diversity jurisdiction over them? We hold here that Congress did not intend for exclusive state court jurisdiction. The TCPA does not strip federal courts of diversity jurisdiction over actions brought under § 227(b)(3). Given our ruling that each District Court has jurisdiction over its respective plaintiffs' private TCPA class action claims pursuant to 28 U.S.C. § 1332(d), we also must address the Courts' class certification determinations, as discussed more fully below.

We have jurisdiction under 28 U.S.C. § 1291 to review the District Courts' orders dismissing these cases for lack of subject matter jurisdiction. We exercise plenary review of a district court's § 12(b)(1) dismissal for lack of jurisdiction and a district court's § 12(b)(6) dismissal for failure to state a claim. McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009); Angelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). We also exercise plenary review of a district court's resulting jurisdictional determination. Umland v. PLANCO Fin. Serv., 542 F.3d 59, 63 (3d Cir. 2008). We review a decision to certify or deny a class for abuse of discretion. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 136 (3d Cir. 2000) (citing In re Prudential Ins. Co. of Am. Sales Litig., 148 F.3d 283, 299 (3d Cir. 1998)).

B.

The TCPA, which was passed in 1991 as part of an amendment to the Communications Act of 1934, declares it unlawful under federal law ―to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,‖ unless certain statutory exceptions apply. 47 U.S.C. § 227(b)(1)(C).

It contains distinct provisions for private parties on the one hand, and state attorneys general on the other, to enforce this prohibition by litigation. § 227(b)(3), (f). Section 227(b)(3), entitled ―Private right of action,‖ provides that:

A person or entity 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 this subsection or 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 $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3). Thus, this private right of action allows a person, ―if otherwise permitted by the laws or rules of court of a State, [to] bring in an appropriate court of that State‖ a private action for damages or injunctive relief, and entitles a successful plaintiff to recover damages of at least $500 per unsolicited fax. Another provision, whereby state attorneys general can bring civil actions for damages and injunctive relief, provides that the federal courts ―shall have exclusive jurisdiction‖ over all such actions. § 227(f)(1), (2).

It also provides that the TCPA does not prevent state officials from bringing similar actions in state court or otherwise exercising their powers under state law. § 227(f)(5), (6).

In enacting this legislation, Congress explained that it sought ―to facilitate interstate commerce by restricting certain uses of facsimile ([f]ax) machines and automatic dialers.‖ S. Rep. No. 102-178, at 1 (1991), reprinted in 1991 U.S.S.C.A.N. 1968, 1968. It noted that ―unsolicited calls placed to fax machines . . . often impose a cost on the called party (fax messages require the called party to pay for the paper used . . . ).‖ Id. at 1969. In addition, a so-called ―junk fax‖ ―occupies the recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.‖ H.R. Rep. No. 102- 317, at 10 (1991). Congress also noted the need for federal regulation to fill the gaps between individual states' regulatory efforts, since ―[s]tates do not have the jurisdiction to protect their citizens against those who use [automated dialing] machines to place interstate telephone calls.‖ S. Rep. No. 102-178, at 5. That is, although ―[m]any States have passed laws that seek to regulate telemarketing,‖ ―telemarketers can easily avoid the restrictions of State law, simply by locating their phone centers out of state.‖ H.R. Rep. No. 102-317, at 9-1. This history suggests that Congress intended both to ―fill the gaps‖ in state regulation and to give consumers the right to file TCPA actions in state court. The TCPA, and its private right of action, were thus designed to put ―teeth‖ into state regulation, rather than to establish a distinctly federal policy. Essentially, Congress ―sought to put the TCPA on the same footing as state law, supplementing state law where there were perceived jurisdictional gaps.‖ Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (2d Cir. 2006).

In introducing the bill, its sponsor, Senator Ernest Hollings, described the private right of action as follows:

The . . . bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. The consumer outrage at receiving these calls is clear. Unless Congress makes it easier for consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue.

Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys' costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 Cong. Rec. S16204 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings).

C.

The TCPA ―presents an unusual constellation of statutory features‖: ―the express creation of a private right of action, an express jurisdictional grant to state courts to entertain them, and silence as to federal court jurisdiction of private actions.‖ Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 512 (5th Cir. 1997). As noted above, we concluded in ErieNet that, based on the language, structure, and legislative history of the statute, there is no federal question jurisdiction over private actions brought under the TCPA. 156 F.3d at 516-19. In ErieNet, we interpreted the permissive language of § 227(b)(3) providing that a person ―may‖ bring an action in state court to suggest that ―Congress intended to authorize private causes of action only in state courts, and to withhold federal [question] jurisdiction.‖ Id. at 516 (emphasis in original). We focused on the distinction between the general jurisdiction of state courts and the limited jurisdiction of federal courts. See id. (―[T]here is no presumption of jurisdiction in the federal courts.‖). It was significant, we said, that the statute's permissive authorization referred only to state courts of general jurisdiction; ―‗that authorization cannot confer jurisdiction on a federal court because federal courts are competent to hear only those cases specifically authorized.'‖ Id. (quoting Int'l Sci. & Tech. Inst., Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1151 (4th Cir. 1997)). We noted that subject matter jurisdiction must be conferred by statute and that the TCPA did not expressly do that. Id.

The majority of courts of appeals to consider the question have similarly concluded that federal courts lack federal question jurisdiction over private TCPA claims. Citing § 227(b)(3)'s explicit authorization of jurisdiction over private actions in state courts and the absence of any reference to federal court, these courts have concluded that Congress did not intend to grant the federal courts federal question jurisdiction over private TCPA claims. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir. 1998); Nicholson v. Hooters of Augusta, Inc., 135 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997); Int'l Sci. & Tech. Inst., Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1156 (4th Cir. 1997). Only two courts of appeals have held otherwise. See Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010) (finding federal question jurisdiction under the TCPA based on § 227(f)(2)'s explicit provision for exclusive federal jurisdiction, 28 U.S.C. § 1441(a)'s authorization of removal to federal court unless expressly provided by Congress, and on its reading of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005)); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir. 2005) (similarly finding federal question jurisdiction under the TCPA based on § 227(f)(2) and Grable).

Though we addressed federal question jurisdiction extensively in ErieNet, we had no occasion to consider whether there can be diversity jurisdiction over TCPA claims.*fn4 156 F.3d at 520. The issue presently before us is whether diversity jurisdiction exists in the federal courts, notwithstanding our conclusion in ErieNet that Congress intended for private litigants to seek recourse in state courts for TCPA violations. In ErieNet we asked whether Congress conferred subject-matter jurisdiction in the TCPA;*fn5 here we ask whether Congress intended state courts to have exclusive jurisdiction over TCPA claims and, thus, stripped away diversity jurisdiction. For the reasons set forth below, we hold that Congress did not divest the federal courts of diversity jurisdiction over private causes of action under the TCPA. Finding that we have diversity jurisdiction over TCPA claims does not disturb the concepts we set down in ErieNet; the TCPA has neither divested federal courts of diversity jurisdiction over private causes of action nor conferred on them federal question jurisdiction.*fn6

D.

Here, the specific provision granting subject matter jurisdiction to the federal courts is 28 U.S.C. § 1332(d), an amendment added to § 1332 pursuant to the Class Action Fairness Act (―CAFA‖) of 2005. Under CAFA, federal courts have original jurisdiction over class actions where there is minimal diversity and the aggregate amount in controversy exceeds $5 million, exclusive of interests and costs. §1332(d)(2), (6). In each of these cases, minimal diversity is present and, given defendants' alleged transmission of over 10,000 unsolicited faxes and the possibility of treble damages under the TCPA, the aggregate amount in controversy exceeds $5 million CAFA requires. Thus, in light of our ruling that federal courts can exercise diversity jurisdiction over TCPA claims when the requirements of diversity are otherwise fulfilled, the New Jersey District Courts here had subject-matter jurisdiction under § 1332(d).

In holding that there is diversity jurisdiction under the TCPA, we rely heavily on then-Judge (now Justice)

Sotomayor's opinion in Gottlieb v. Carnival Corp., where the Second Circuit persuasively applied two canons of statutory interpretation to the TCPA - the ―whole act rule,‖ which instructs that parts of a statute should be placed in the context of the entire statutory scheme and the principle that reliance on background principles of law inform a statute's interpretation - to conclude that federal courts should have diversity jurisdiction over § 227(b)(3) claims. 436 F.3d at 338-343. Though we do not adopt Gottlieb's reasoning wholesale, we note the soundness of the Second Circuit's approach and draw on it considerably.

Our starting point is the historic grant of diversity jurisdiction to the federal courts, first under the Judiciary Act of 1789, then as codified at 18 U.S.C. § 1332. As did the Gottlieb court, we understand § 1332 as ―an independent grant of federal jurisdiction intended to prevent discrimination against non-citizen parties regardless of whether state or federal substantive law is involved.‖ 437 F.3d at 340. As such, diversity jurisdiction is ―presumed to exist for all causes of action so long as the statutory requirements are satisfied.‖ Id. Indeed, the language of § 1332 provides that district courts ―shall have jurisdiction of all civil actions where‖ the matter in controversy exceeds $75,000 and where the parties are diverse. 18 U.S.C. § 1332 (emphasis added). Federal courts only lack diversity jurisdiction where Congress has explicitly expressed an intent to strip federal courts of this jurisdiction, Gottlieb, 436 F.3d at 338, or where such jurisdiction is found to be irreconcilable with a congressional statute. U.S. Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 1117 (10th Cir. 2007) (citing Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 808 (1976)). See also id. at 1117 (―[A]bsent an explicit indication that Congress intended to create an exception to diversity jurisdiction, one may not be created by implication.‖) (citing Ankenbrandt v. Richards, 504 U.S. 689, 700 (1992)).

It is useful to begin with the origins of the two traditional bases for subject matter jurisdiction. Federal courts did not have general federal question jurisdiction until 1875. Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261 (1997). Before then, federal courts had jurisdiction over substantive law claims either when the federal statute sought to be enforced contained a specific grant of federal court jurisdiction or when diversity of citizenship was present. Diversity jurisdiction, by contrast, was ―expressly contemplated by Article III of the United States Constitution‖ and has provided a jurisdictional basis for entry into the federal courts since the very inception of our judicial system in the Judiciary Act of 1789. Kopff v. World Research Grp., LLC, 298 F. Supp. 2d 50, 55 (D.D.C. 2003). See also Hertz Corp. v. Friend, --- U.S. ---, 130 S. Ct. 1181, 1188 (2010) (noting the First Judiciary's Act's grant of authority to federal courts to hear suits ―‗between a citizen of the State where the suit is brought, and a citizen of another State'‖) (quoting § 11, 1 Stat. 78)).

Today, diversity jurisdiction is ―based on a grant of jurisdictional authority from Congress‖ in the form of 28 U.S.C. § 1332. U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 171 (1939)). ―As to diversity cases, Congress has given the federal courts cognizance, concurrent with the courts of the several states. [A party's] consent [to be sued in the courts of a state], therefore, extends to any court sitting in the state which applies the laws of the state.‖ Id. (internal citations and quotation marks omitted) (emphasis added). Diversity jurisdiction's purpose - of ―prevent[ing] apprehended discrimination in state courts against those not citizens of the state,‖ Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938) - exists independently of other considerations like the subject matter of the lawsuit or the nature of the law under which the suit is filed. See Accounting Outsourcing, 294 F. Supp. 2d at 838 (―[N]o matter how one may label the diversity statute, it exists for an independent and important reason, unrelated to the subject matter of the lawsuit.‖). Indeed, the ―presupposition of diversity jurisdiction,‖ a concern with local bias, is usually not affected by other aspects of the cause of action. Jerome G. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 546 n.6 (1995). Consequently, as a general matter, where parties are diverse and the amount in controversy meets the statutory bar, § 1332 operates as a threshold grant of jurisdiction.*fn7 Other bases for federal jurisdiction may be expressly or impliedly proscribed, but such proscriptions are typically responsive to concerns that are either irrelevant or outweighed when the requirements for diversity jurisdiction are met.

Courts have long recognized the presumption of diversity jurisdiction regardless of the type of law under which a lawsuit arises. In Dodge v. Woolsey, 59 U.S. 331 (1855), for example, plaintiff, a Connecticut citizen and an investor in an Ohio corporation, sued, among others, an Ohio tax collector who was trying to collect taxes from the corporation. Plaintiff claimed that the taxes, which resulted from the passage of a new state law and state constitution in Ohio, violated the Contracts Clause of the U.S. Constitution because they abrogated the terms of the corporate charter the corporation had received from Ohio. Id. at 335-40. Today, this claim would fall squarely under a federal court's federal question jurisdiction, but the Court's emphasis here was on the jurisdictional baseline that existed by virtue of the parties' diversity of citizenship. The Court rejected defendant's argument that the suit was within the exclusive jurisdiction of the state courts and noted ―that the courts of the United States and the courts of the States have concurrent jurisdiction in all cases between citizens of different States, whatever may be the matter in controversy, if it be one for judicial cognizance . . . and that it is no objection to this jurisdiction, that there is a remedy under the local law.‖ Id. at 347 (emphasis added). It is the parties being from different states, not the subject matter, that is determinative.

The presumptive existence of federal courts' diversity jurisdiction over all causes of action that meet § 1332's requirements is bolstered by the ―well-established principle of statutory construction that repeal or amendment by implication is disfavored.‖ Gottlieb, 436 F.3d 335 (citing Colo. River, 424 U.S. at 808; Rosencrans v. United States, 165 U.S. 257, 262 (1897)). As the Supreme Court has emphasized, ―[w]hen there are statutes,‖ like § 1332, ―clearly defining the jurisdiction of the courts, the force and effect of such provisions should not be disturbed by a mere implication.‖ 165 U.S. at 262. See also Kopff, 298 F. Supp. 2d at 55 (―A federal court's original jurisdiction in diversity cases is not subject to implied exceptions.‖). In Colorado River, the Supreme Court stated that, ―[i]n the absence of some affirmative showing of an intent to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.‖ 424 U.S. at 808. Clearly, § 227(b)(3) does not evince an intent to repeal § 1332 and is in no way irreconcilable with § 1332.

Federal question jurisdiction, by contrast, lacks diversity jurisdiction's expansive nature and straightforward applicability. Where a federal question clearly exists, district courts have original jurisdiction unless a specific statute places jurisdiction elsewhere, U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Int'l Sci., 106 F.3d at 1154), and if a federal question is not as clearly presented, determining whether ―arising under‖ jurisdiction exists requires a multi-factorial analysis of how federal the claim really is; the process is more nuanced than the easily applied two-factor test for diversity jurisdiction, and the purposes served by allowing access to the federal courts under each statute are quite distinct. As the Fifth Circuit explained in finding that federal courts lack federal question jurisdiction under the TCPA, ―[t]here is no ‗single, precise definition' of when a case falls within the original ‗federal question' jurisdiction of federal courts; ‗rather, the phrase ―arising under‖ masks a welter of issues regarding the interpretation of federal and state authority and proper management of the federal jurisdictional system.'‖ Chair King, 131 F.3d at 510 (quoting Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 808 (1986) (internal citations omitted)).*fn8 Assessing whether a federal court has diversity jurisdiction generally avoids such thorny analysis. Thus, collapsing federal question and diversity jurisdiction together in the context of the TCPA ignores the meaningful difference between federal question jurisdiction, a constrained basis for jurisdiction that applies in a ―narrow class‖ of federally- oriented cases, and diversity jurisdiction, which has traditionally been open to claims based on any cause of action out of concern for avoiding bias against out-of-state parties.*fn9

Bryan v. BellSouth Commc'n, Inc., 377 F.3d 424, 434 (4th Cir. 2004).

Nor does the fact that the TCPA is a federally created cause of action compel us to put diversity jurisdiction and federal question jurisdiction under the TCPA on equal footing. Though it is indeed ―rare [for a] federal statute . . . [to] create[] a cause of action that gives rise to jurisdiction under § 1332, but not under § 1331,‖ Gottlieb, 436 F.3d at 342 n.8, it is not logically inconsistent. First, diversity jurisdiction is not by its statutory terms limited to state-law claims. As Judge Sotomayor observed in Gottlieb, ―nothing in § 1332 indicates that diversity jurisdiction does not exist where federally-created causes of action are concerned.‖ 436 F.3d at 335.*fn10 Moreover, in the instances where federal statutes do not give rise to § 1331 jurisdiction, there is no indication that the rationale behind the absence of federal question jurisdiction also wipes out diversity jurisdiction.

Though the ―vast majority‖ of cases that fall under § 1331 are ―described by Justice Holmes' adage that ‗a suit arises under the law that creates the cause of action,'‖ Merrell Dow, 478 U.S. at 819 (quoting Am. Well Works Co v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)), it is not the case that every private cause of action under a federal statute begets federal question jurisdiction. Rather, ―[i]nferior federal courts' ‗federal question' jurisdiction ultimately depends on Congress's intent as manifested by the federal statute creating the cause of action.‖ Chair King, 131 F.3d at 510 (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 448 (1850)). See also Int'l Sci., 106 F.3d at 1154 (―Because federal-question jurisdiction ultimately depends on an act of Congress, the scope of the district courts' jurisdiction depends on that congressional intent manifested in [the] statute.‖).

Indeed, as our focus in ErieNet demonstrates, congressional intent is a touchstone of federal question jurisdiction analysis.

See Merrell Dow, 478 U.S. at 812 (noting that it has ―consistently emphasized, in exploring the outer reaches of § 1331,‖ that the determination of whether federal question jurisdiction exists over nonfederal causes of action ―require[s] sensitive judgments about congressional intent, judicial power, and the federal system‖). With diversity jurisdiction, however, unless Congress has been explicit in mandating exclusive state court jurisdiction or in precluding diversity jurisdiction, congressional intent is largely irrelevant to determining whether a federal court has diversity jurisdiction over a given cause of action.

Suits authorized by the federal statute at issue in Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), present an example of causes of action which, though created by federal law, do not fall under federal courts' federal question jurisdiction. In Shoshone, the Court considered whether a federal statute expressly authorizing ―adverse suits‖ to determine title to land established federal question jurisdiction. Id. at 506. The statute provided that claims were to be determined ―by local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States; or by the statute of limitations for mining claims of the State or Territory where the same may be situated.‖ Id. at 508. The mere fact that a suit ―takes its origin in the laws of the United States‖ does not, the Court reasoned, necessarily make it ―one arising under the Constitution or laws of the United States,‖ lest virtually every dispute over title to land ―in the newer States‖ raise a federal question. Id. at 507.*fn11 Accordingly, the Court held that the federal cause of action created by the mining statute did not confer federal question jurisdiction over claims that turned entirely on state law. Id.

However, in noting the ―conceded fact that, unless the amount in controversy is over $2,000, no jurisdiction attaches to the Federal court,‖ id. at 511, the Court suggested that federal courts could exercise diversity jurisdiction over claims brought under the mining statute. Indeed, in International Science, the Fourth Circuit pointed to Shoshone as an example of a case where the Court found that, ―notwithstanding the federal statutory basis, Congress intended that because of the predominance of state issues that cases be litigated in state courts unless there was diversity of citizenship.‖ 106 F.3d at 1154 (emphasis added). Even in Shoshone, where the statute at issue dealt with subject matter of the most local variety, land title, and specifically required the application of local laws and rules,*fn12 it was not interpreted to create exclusive state court jurisdiction. The Shoshone Court's justification for removing certain federally created causes of action from federal courts' § 1331 jurisdiction where state law issues dominate or state rules govern does not apply to diversity jurisdiction, which, as we have described, ―derives its basis not on the presence of a federal question, but rather on an independent anti-discrimination rationale.‖ Biggerstaff v. Voice Power Telecomms., Inc., 221 F. Supp. 2d 652, 657 (D.S.C. 2002).*fn13 Both the mining statute and the TCPA are examples of federal causes of action that essentially enable state enforcement; as such, neither confers federal question jurisdiction in the federal courts, but neither, without more, disrupts the baseline framework of federal diversity jurisdiction over large claims between diverse parties.*fn14

E.

With this understanding of diversity jurisdiction in mind, we turn now to the TCPA itself. Due to the nature of diversity jurisdiction, it would take a ―clear and definitive‖

directive from Congress to persuade us ―to remove a party's entitlement to a federal forum based on diversity.‖ Accounting Outsourcing, 294 F. Supp. 2d at 838. As the Second Circuit did, we ―proceed according to the rule that § 1332 applies to all causes of action, whether created by state or federal law, unless Congress expresses a clear intent to the contrary.‖ Gottlieb, 436 F.3d at 340. Our demand for a clear statement comports with our general view that ―‗repeals by implication are not favored and will not be presumed unless the intention of the legislature is clear and manifest.'‖ Hagan v. Rogers, 570 F.3d 146, 154-55 (3d Cir. 2009) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (internal quotation marks and brackets omitted)).

We do not find the TCPA's language sufficiently clear or forceful enough to deprive federal courts of diversity jurisdiction over TCPA claims. Nothing in § 227(b)(3) or the overall statute indicates that Congress intended for individual claims brought under the TCPA to operate any differently than other suits between diverse parties where the amount in controversy meets § 1332's requirements.

First, § 227(b)(3) itself, which states that ―[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State‖ an action for damages against defendants who have violated the TCPA, does not expressly remove federal courts' diversity jurisdiction over TCPA claims. As the Tenth Circuit has noted, ―[t]his fact alone is probably sufficient to demonstrate the presence of diversity jurisdiction because ‗[diversity jurisdiction] is an independent grant of federal jurisdiction . . . [that] is presumed to exist for ...


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