The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
The matter before the court is Defendants, Elaine G. Taylor and Environmental Process Systems, Inc.'s Motion to Dismiss Plaintiff's First Amended Complaint with Prejudice Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), which motion was filed April 14, 2011.*fn1 Plaintiff's Response in Opposition to Defendants' Motion to Dismiss Plaintiff's First Amended Complaint with Prejudice Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) was filed April 28, 2011. *fn2
Upon consideration of the parties' moving papers and the First Amended Class Action Complaint filed March 25, 2011 ("Amended Class Complaint") *fn3 , it appears that this court has jurisdiction over the subject matter of this action. It further appears that the claims asserted in the Amended Class Complaint are not time-barred by the applicable statute of limitations. For those reasons, as explained below, I deny defendants' motion to dismiss the First Amended Class Action Complaint.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331 and upon the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).
Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to plaintiff's claim allegedly occurred in the Borough of Denver, Lancaster County, Pennsylvania, which is within this judicial district.
Plaintiff initiated this action on February 24, 2010 by filing a Class Action Complaint ("Class Complaint"). By stipulation approved by the court, defendants were required to respond to plaintiff's complaint by June 17, 2010. On that date defendants moved to dismiss plaintiff's Class Complaint. Plaintiff responded to the motion on July 8, 2010. Defendants filed a reply brief in support of their motion with the court's permission on September 14, 2010.
On February 25, 2011, I issued an Order and accompanying Opinion filed February 28, 2011, giving plaintiff until April 1, 2011 to plead the grounds upon which this court's jurisdiction depends, and dismissing defendants' motion to dismiss without prejudice to refile it, if appropriate, if plaintiff filed an Amended Complaint by April 1, 2011 establishing subject matter jurisdiction.
As explained in that Opinion, plaintiff's Class Complaint asserted jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d), but failed to plead facts sufficient to establish this court's jurisdiction under the CAFA. In that Opinion, I also noted that binding precedent from the United States Court of Appeals for the Third Circuit in ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 517-519 (3d Cir. 1998), established that private Telephone Consumer Protection Act ("TCPA") claims did not create federal-question jurisdiction with this court pursuant to 28 U.S.C. § 1331.
On March 25, 2011, plaintiff filed its First Amended Class Action Complaint. The Amended Class Complaint, like the original Class Complaint, alleges that defendants violated the TCPA, 47 U.S.C. § 227. The TCPA prohibits, among other things, a person or entity within the United States from sending unsolicited fax advertisements. 47 U.S.C. § 227(b)(1)(C).
Plaintiff alleges that on June 17, 2006, defendants sent a one-page unsolicited advertisement to plaintiff's fax machine, and that "on information and belief, on or about June 17, 2006, Defendants sent the same or similar unsolicited facsimile advertisements to 4,521 other recipients nationwide." *fn4
On April 14, 2011, defendants filed the within motion to dismiss plaintiff's First Amended Class Action Complaint. On April 28, 2011, plaintiff responded to defendant's motion to dismiss the Amended Class Complaint. Defendants' reply brief was filed on May 11, 2011. Thus, defendants' motion to dismiss plaintiff's First Amended Class Action Complaint is ripe for disposition.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides, in pertinent part:
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject matter jurisdiction....
Pursuant to Rule 12(b)(1), a party may assert either a facial or factual challenge concerning whether the District Court properly has subject matter jurisdiction over the matter. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A challenge to a complaint for failure to allege subject matter jurisdiction is known as a "facial" challenge.
When a motion presents a facial challenge to the court's subject matter jurisdiction, the court must treat the allegations of the complaint as true and draw all inferences favorable to the plaintiff. NE Hub Partners, L.P. v. CNG Transmission Corporation, 239 F.3d 333, 342 (3d Cir. 2001); see also Fed.R.Civ.P. 8(f).
Dismissal pursuant to a facial challenge under Rule 12(b)(1) is proper only where the court concludes that the claims clearly appear to be immaterial and made solely for the purpose of obtaining jurisdiction, or are wholly insubstantial and frivolous. In other words, the claims must be "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-1409 (3d Cir. 1991) (internal citations omitted).
Because a court need not find a claim wholly frivolous or insubstantial in order to dismiss it under Rule 12(b)(6), the threshold to withstand a Rule 12(b)(1) motion to dismiss is significantly lower than that under Rule 12(b)(6). Kehr Packages, Inc., 926 F.2d at 1409 (citing Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989)). However, this lower threshold does not relieve plaintiff (as the party invoking jurisdiction) of its burden to demonstrate that this action is properly in federal court. Samuel-Bassett v. Kia Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004).
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted". A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Ordinarily, a court's review of a motion to dismiss is limited to the contents of the complaint, including any attached exhibits. See Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2). That rule requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, 167 L.Ed.2d at 940.
Additionally, in determining the sufficiency of a complaint, the court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom in the light most favorable to the non-moving party. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Nevertheless, a court need not credit "bald assertions" or "legal conclusions" when deciding a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-1430 (3d Cir. 1997).
In considering whether the complaint survives a motion to dismiss, both the district court and the Court of Appeals review whether it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969, 167 L.Ed.2d at 944 (quoting Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101, 1106 (7th Cir. 1984) (emphasis in original).
CONTENTIONS OF THE PARTIES
Contentions of Defendants
Defendants contend that plaintiff's First Amended Class Complaint should be dismissed with prejudice for two reasons.
First, defendants contend that the Amended Class Complaint fails to establish this court's subject matter jurisdiction under the CAFA, 28 U.S.C. § 1332(d), because the number of class members alleged and the treble damages claimed in the Amended Class Complaint are frivolous and were made solely for the purpose of obtaining jurisdiction. *fn5
Second, defendants contend that because the First Amended Class Action Complaint alleges that defendants sent the unsolicited faxes on June 17, 2006, any TCPA claim based on a fax sent on that date is time-barred by Pennsylvania's two-year statute of limitations on invasion of privacy torts, which defendants contend is applicable to plaintiff's private TCPA claim. *fn6
Plaintiff objects to both of defendants arguments in support of dismissal of the First Amended Class Action Complaint. First, plaintiff contends that the averments in the Amended Class Complaint, taken as true for the purposes of this motion, satisfy the jurisdictional requirements under the CAFA. Specifically, plaintiff contends that a putative class of 4,521 fax recipients and potential liability to the class of ...