13-1746-cv
Bank v. Independence Energy Group LLC et al.




                                        In the
             United States Court of Appeals
                          For the Second Circuit
                                    ________
                                 AUGUST TERM 2013
                                  No. 13-1746-cv

     TODD C. BANK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
                       SIMILARLY SITUATED,
                        Plaintiff-Appellant.

                                               v.

   INDEPENDENCE ENERGY GROUP LLC AND INDEPENDENCE ENERGY
                       ALLIANCE LLC,
                     Defendants-Appellees.
                          ________

              Appeal from the United States District Court
                  for the Eastern District of New York.
            No. 13 CV 1746 (WFK) ― William F. Kuntz, Judge.
                                 ________

                          SUBMITTED: OCTOBER 28, 2013
                           DECIDED: DECEMBER 3, 2013
                                   ________
2                                       No. 13-1746-cv




Before: WALKER, CABRANES, and PARKER, Circuit Judges.
                           ________

      In this appeal we consider whether the United States District
Court for the Eastern District of New York (William F. Kuntz, Judge)
erred in dismissing sua sponte a class action complaint brought
pursuant to the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, for lack of subject matter jurisdiction, based on its
application of New York Civil Practice Law and Rules (“CPLR”)
§ 901(b), which prohibits class-action suits for statutory damages.

       We hold, based on the reasoning set forth in our intervening
decision in Giovanniello v. ALM Media, LLC, 726 F.3d 107 (2d Cir.
2013), that Federal Rule of Civil Procedure 23, not CPLR § 901(b),
governs when a federal TCPA suit may proceed as a class action.
Accordingly, we VACATE the March 12, 2013 judgment of the
District Court and REMAND the cause for further proceedings
consistent with this opinion.
                              ________

                  Todd C. Bank, pro se, Todd C. Bank, Attorney at
                  Law, Kew Gardens, Plaintiff

                  Aurora Francesca Parrilla, Lowenstein Sandler
                  LLP, Roseland, NJ, for Defendants-Appellees
                            ________
3                                                       No. 13-1746-cv




PER CURIAM:

       Todd C. Bank, pro se, appeals from the judgment of the
District Court for the Eastern District of New York (William F.
Kuntz, Judge) dismissing sua sponte his class action complaint,
brought pursuant to the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, for lack of subject matter jurisdiction,
based on application of New York Civil Practice Law and Rules
(“CPLR”) § 901(b), which prohibits class-action suits for statutory
damages. Bank argues on appeal that Federal Rule of Civil
Procedure 23, not state law, governs when a federal TCPA suit may
proceed as a class action.

      We review de novo a district court judgment dismissing a
complaint for lack of subject matter jurisdiction. See Sokolowski v.
Metro. Transp. Auth., 723 F.3d 187, 190 (2d Cir. 2013). The TCPA
prohibits the use of “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). Section 227(b)(3) of the TCPA
provides that private parties “may, if otherwise permitted by the
laws or rules of court of a State, bring [an action] in an appropriate
court of that State.” Id. § 227(b)(3).

       The Supreme Court’s decision in Mims v. Arrow Fin. Servs.,
LLC, 132 S. Ct. 140 (2012), uprooted much of our TCPA
jurisprudence1 by concluding that, despite § 227(b)(3)’s state-centric

1We recently recognized that “Mims expressly abrogates Foxhall [Realty Law Offices, Inc. v.
Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir. 1998)] and undermines the holdings
of Gottlieb [v. Carnival Corp., 436 F.3d 335 (2d Cir. 2006).], Bonime [v. Avaya, Inc., 547 F.3d
497 (2d Cir. 2008)], and Holster [v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010)] insofar as those
cases rest their interpretation of section 227(b)(3) on the jurisdictional approach that
existed prior to Mims.” Giovanniello v. ALM Media, LLC, 726 F.3d 106, 113 (2d Cir. 2013)
4                                                    No. 13-1746-cv




language, there was “no convincing reason to read into the TCPA’s
permissive grant of jurisdiction to state courts any barrier to the U.S.
district courts’ exercise of the general federal-question jurisdiction
they have possessed since 1875.” Id. at 745. We recently considered
whether, in light of Mims’ “fundamental[] shift[ in] the way that we
view section 227(b)(3)’s ‘if otherwise permitted’ language,” the
governing statute of limitations in a TCPA claim was the applicable
state limitations period, or the federal catch-all limitations period set
forth in 28 U.S.C. § 1658(a).2 Giovanniello v. ALM Media, LLC, 726 F.3d
107, 111 (2d Cir. 2013).

       We concluded that Mims “cannot be construed as requiring us
to apply state limitations periods to TCPA claims in federal court.”
Id. at 114. In reaching this result we recognized that our prior
interpretation of section 227(b)(3) “as having ‘substantive content,’
[and] as a delegation of authority to state courts to set the terms of
TCPA claims, no longer holds true.” Id. at 115 (internal citation
omitted). Instead, Mims “suggests that in enacting the TCPA,
Congress merely enabled states to decide whether and how to spend
their resources on TCPA enforcement,” and, indeed, Mims
“emphasizes that Congress had a strong federal interest in uniform
standards for TCPA claims in federal court.” Id. at 114-15.

       Nothing about the law at issue here―a state civil procedure
statute prohibiting class-action claims for statutory damages―
counsels a different result from that reached in Giovanniello. To the
contrary, as we expressly recognized in Giovanniello, both rationales
set forth in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008)―which
held that CLPR § 901(b), not Federal Rule of Civil Procedure 23,

2We note that the District Court rendered its decision after the Supreme Court’s decision
in Mims, but before our decision in Giovanniello, and relied primarily on cases which we
have now recognized as abrogated by Mims. See Note 1, ante.
5                                                     No. 13-1746-cv




governed TCPA class action suits―have now been rejected.
Specifically, Bonime’s first rationale―that the Erie doctrine required
application of state law class-action procedures―was overturned by
the Supreme Court’s decision in Shady Grove Orthopedic Assocs., P.A.
v. Allstate Ins. Co., 559 U.S. 393 (2010). See Giovanniello, 726 F.3d at
111. And Mims undermined the second rationale, which relied on
jurisdictional interpretations of section 227(b)(3).3 See id. at 112-13.
Accordingly, we hold that Federal Rule of Civil Procedure 23, not
state law, governs when a federal TCPA suit may proceed as a class
action.

                                   CONCLUSION

      For the reasons set out above, we VACATE the March 12,
2013 judgment of the District Court, and REMAND for further
proceedings consistent with this opinion.




3 In addition, just as “Congress knew full well how to displace [the federal] catch-all
limitations period with clear language,” but chose not to, Giovanniello, 726 F.3d at 115, it
knew full well how to preclude TCPA class actions by private parties, but chose not to do
so.
