10-3854
Giovanniello v. ALM Media, LLC

                                   UNITED STATES COURT OF APPEALS

                                        FOR THE SECOND CIRCUIT



                                           August Term, 2012

                        (Argued: May 7, 2013             Decided: August 8, 2013)

                                         Docket No. 10-3854-cv


                                           Earle Giovanniello,

                                                        Plaintiff-Appellant,

                                                 — v.—

                                            ALM Media, LLC,

                                                        Defendant-Appellee.



                           Before: RAGGI, LOHIER, AND WALLACE,* Circuit Judges:


Appeal from a September 8, 2010 judgment of dismissal of the United States District Court for the
District of Connecticut (Arterton, J.). We hold that the four-year federal statute of limitations in 28
U.S.C. § 1658(a) applies to Giovanniello’s claim. Further, we join our sister circuits in holding that
American Pipe tolling does not extend beyond the denial of class status in a prior action. As a result,
Appellant’s subsequent claim is time barred. AFFIRMED.


                           TODD C. BANK, Kew Gardens, NY, for Plaintiff-Appellant.

                           CHAD R. BOWMAN (Elizabeth C. Koch, on the brief), Levine Sullivan Koch &
                                 Schulz, L.L.P., Washington, D.C., for Defendant-Appellee.




*
 Judge J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by
designation.


                                                    1
J. CLIFFORD WALLACE, Circuit Judge:

       This case returns to us on remand from the Supreme Court. Appellant Earle Giovanniello

sought review of our decision in Giovanniello v. ALM Media, LLC, 660 F.3d 587 (2d Cir. 2011),

arguing that we erred in concluding that Connecticut state law dictated the statute of limitations that

applies to a claim brought in federal court under the Telephone Consumer Protection Act, 47 U.S.C.

§ 227 (TCPA). The Supreme Court granted Giovanniello’s petition for certiorari, vacated our

previous judgment, and remanded the case for further consideration in light of Mims v. Arrow

Financial Services, LLC, 132 S. Ct. 740 (2012). Giovanniello v. ALM Media, LLC, 133 S. Ct. 159 (2012).

       We conclude, in light of Mims, that federal law supplies the appropriate statute of

limitations—here, four years, see 28 U.S.C. § 1658(a)—rather than Connecticut state law. This

holding, however, does not save Giovanniello’s claim because we join every other circuit court to

have addressed the issue and conclude that the tolling rule announced in American Pipe & Construction

Co. v. Utah, 414 U.S. 538 (1974), extends only through the denial of class status in the first instance

by the district court. As Giovanniello acknowledges, cutting off tolling at this point requires a

conclusion that his September 8, 2009 filing was untimely. We therefore affirm the district court’s

judgment of dismissal.

                                                  I.

       This case is the fourth attempt by Giovanniello to commence and prosecute a putative class

action under the TCPA, 47 U.S.C.§ 227(b)(1)(c), for an unsolicited fax advertisement that he

allegedly received on January 28, 2004. We review briefly that history.

                                                  A.




                                                   2
    Giovanniello alleges that on January 28, 2004, ALM Media, LLC (ALM) sent him an unsolicited

fax advertisement. Giovanniello contends that he is merely one of at least 10,000 individuals who

likewise received unsolicited fax advertisements sent by ALM. As a result, Giovanniello filed, on

April 23, 2004, a putative class action complaint in Connecticut state court. On August 30, 2004,

however, Giovanniello voluntarily withdrew his complaint. Less than a month later, on September

20, 2004, Giovanniello filed another complaint in Connecticut state court against ALM. Once again,

Giovanniello voluntarily dismissed that complaint on June 27, 2005.

                                                   B.

        On March 8, 2007, Giovanniello filed a third action against ALM under the TCPA in the

Southern District of New York. On August 6, 2007, the district court dismissed Giovanniello’s

putative class action complaint for lack of subject-matter jurisdiction, concluding that the TCPA,

though permitting diversity jurisdiction in federal court, looked to applicable state law to determine

the availability of a class action in a particular case. Giovanniello v. New York Law Publ’g. Co., No. 07

Civ. 1990, 2007 WL 2244321, at *4 (S.D.N.Y. Aug. 6, 2007). Because New York law did not permit

a class action “predicated on statutory damages,” the district court concluded that the court lacked

subject-matter jurisdiction to hear Giovanniello’s putative class action. Id., applying N.Y. C.P.L.R. §

901(b). The district court concluded that because Giovanniello could not maintain a class action, the

maximum damages he could potentially receive as an individual claimant ($1500) fell short of the

minimum amount required for diversity jurisdiction under 28 U.S.C. § 1332(a). Id.

        Following dismissal, Giovanniello moved for reconsideration. The district court denied that

motion. Giovanniello v. New York Law Publ’g Co., No. 07 Civ. 1990, 2007 WL 4320757 (S.D.N.Y. Dec.

11, 2007). On December 19, 2007, Giovanniello appealed from the judgment of dismissal and denial

of reconsideration. The parties stipulated to a stay of the appeal pending resolution of another

appeal involving a similar issue. After this court resolved the related appeal and issued a show cause


                                                   3
order to Giovanniello, he failed to respond. We accordingly dismissed Giovanniello’s appeal on

February 9, 2009.

                                                  C.

          On September 8, 2009, Giovanniello filed his fourth putative class action under the TCPA

(the instant case) in United States District Court for the District of Connecticut. A year later, the

district court concluded that, even assuming that the federal four-year statute of limitations applied,

see 28 U.S.C. § 1658(a), and that the statute of limitations was tolled during the pendency of

Giovanniello’s state suits through voluntary dismissal and during the pendency of Giovanniello’s

Southern District of New York action through dismissal, Giovanniello’s filing was untimely.

Giovanniello v. ALM Media, LLC, No. 3:09CV1409, 2010 WL 3528649, at *6 (D. Conn. Sept. 3,

2010). Giovanniello appealed.

          On appeal, we held that the TCPA’s “otherwise permitted by state law” provision required

us to apply Connecticut state law, including any applicable statute of limitations, in determining

whether Giovanniello’s claim was time barred. Giovanniello, 660 F.3d at 593. We thus concluded that

because Connecticut state law parallel to the TCPA, see Conn. Gen. Stat. § 52-570c(d), only provided

for a two-year limitations period, regardless of whether tolling applied during the pendency of

Giovanniello’s prior actions, his fourth filing was necessarily untimely. 660 F.3d at 597.

Subsequently, the Supreme Court granted Giovanniello’s petition for certiorari, vacated our previous

disposition, and remanded for further consideration consistent with its decision in Mims. Giovanniello,

133 S. Ct. 159. Thus, we must again address whether Giovanniello’s September 8, 2009 claim was

timely.

          Giovanniello contends that Mims supports his argument that the federal catch-all statute of

limitations applies, not Connecticut’s two-year limitations period. Under the federal limitations

period, Giovanniello contends that he had 1461 days to file his claim from the date he allegedly


                                                   4
received the unlawful fax. Between January 24, 2004 (the day on which he allegedly received the

unlawful fax), and September 8, 2009 (the day he filed the instant action), 2051 days passed.

Giovanniello contends, however, that the pendency of his previous actions in their respective courts,

through dismissal in each case, tolled the limitations period a total of 560 days. While recognizing

that the resulting total (1491 days) is 30 days short of the total needed to make the filing in this case

timely, Giovanniello asks us to conclude that the applicable limitations period was also tolled during

either or both the pendency of his motion for reconsideration of the dismissal of his third filing in

the Southern District of New York or his appeal from the judgment of dismissal in that same case.

Because the pendency of reconsideration and appeal were each longer than 30 days, Giovanniello

contends that if we extend tolling through either period, his September 8, 2009 class action was

timely filed.

                                                    II.

        We review de novo a district court’s judgment of dismissal. City of Pontiac Gen. Emps’. Ret. Sys.

v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011). “We are free to affirm an appealed decision on any

ground which finds support in the record, regardless of the ground upon which the trial court

relied.” United States v. Yousef, 327 F.3d 56, 156 (2d Cir. 2003) (internal quotation marks omitted).

        While we must determine whether the district court was correct that American Pipe tolling

does not extend beyond denial of class status, we must first reach the predicate question of whether

a federal or state limitations period applies here. See generally Board of Regents v. Tomanio, 446 U.S. 478,

485–86 (1980) (indicating that the source of the applicable statute of limitations supplies the

applicable “rules of tolling”); accord Pearl v. City of Long Beach, 296 F.3d 76, 80–81 (2d Cir. 2003).

                                                     A.

        28 U.S.C. § 1658(a) provides that “[e]xcept as otherwise provided by law, a civil action

arising under an Act of Congress enacted after [December 1, 1990] may not be commenced later


                                                     5
than 4 years after the cause of action accrues.” See also Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 382 (2004) (explaining that “a cause of action ‘aris[es] under an Act of Congress enacted’ after

December 1, 1990—and therefore is governed by § 1658’s 4-year statute of limitations—if the

plaintiff’s claim against the defendant was made possible by a post–1990 enactment”).

        Congress enacted the TCPA on December 20, 1991, over a year from the effective date of

section 1658(a). See 47 U.S.C. § 227. The TCPA does not contain a statute of limitations. That

statute provides, however, that “[a] person or entity 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).

        We previously held that section 227(b)(3)’s “if otherwise permitted” language constituted an

exception to the generally applicable catch-all limitations period in section 1658(a). Indeed, in our

prior decision, we concluded that section 227(b)(3) is “‘unambiguous’ in placing an express

limitation on the TCPA [that] federal courts are required to respect’: a TCPA claim ‘cannot be

brought if not permitted by state law.’” Giovanniello, 660 F.3d at 592, quoting Bonime v. Avaya, Inc., 547

F.3d 497, 502 (2d Cir. 2008). We reasoned that the “if otherwise permitted” language indicates

Congress’s intent that states have a “‘fair measure of control’” over TCPA claims. Id. at 593, quoting

Holster v. Gatco, Inc., 618 F.3d 214, 218 (2d Cir. 2010). “Such control,” we explained, “encompasses

not only the general authority to recognize particular causes of action, but also the specific authority

to determine the time period within which such actions will be recognized.” Id. Thus, we concluded

that as a matter of statutory interpretation, the relevant Connecticut (and not the federal catch-all)

statute of limitations applied to Giovanniello’s claim. Id. Under Connecticut’s statute, we

determined, Giovanniello’s claim was clearly time barred. Id. at 597.

        We must address now whether the Supreme Court’s decision in Mims requires us to reach a

different outcome as to the applicable statute of limitations.




                                                    6
        In Mims, the Supreme Court resolved a circuit split as to “whether Congress’ provision for

private actions [in section 227(b)(3)] to enforce the TCPA renders state courts the exclusive arbiters of

such actions.” 132 S. Ct. at 744. As with other circuits, we had previously determined, given the

state-law centered language of section 227(b)(3), that district courts lack federal-question jurisdiction

over private TCPA claims, see Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d

432 (2d Cir. 1998), yet we permitted district courts to consider TCPA claims when sitting in

diversity, see Gottlieb v. Carnival Corp., 436 F.3d 335 (2d Cir. 2006).

        The Court in Mims abrogated our holding in Foxhall, concluding unanimously that despite

section 227(b)(3)’s state-oriented language, federal and state courts have concurrent jurisdiction over

private TCPA claims. 132 S. Ct. at 745. The Court explained that “[b]eyond doubt, the TCPA is a

federal law that both creates the claim [the plaintiff] has brought and supplies the substantive rules

that will govern the case.” Id. at 744–45. The Court further explained that “when federal law creates

a private right of action and furnishes the substantive rules of decision, the claim arises under federal

law, and district courts possess federal-question jurisdiction under § 1331 . . . . unless Congress

divests federal courts of their § 1331 adjudicative authority.” Id. 748–49. After examining section

227(b)(3), the Court held that 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. Thus, the Court held that

federal courts have federal-question jurisdiction over TCPA claims. Id.

        Although the Court did not directly address the statute of limitations question we face here,

Mims fundamentally shifts the way that we view section 227(b)(3)’s “if otherwise permitted”

language and requires us to determine whether the district court was correct to apply section

1658(a)’s four-year catch-all provision.




                                                      7
        To begin, Mims’s holding casts doubt on controlling precedent essential to our prior decision

that section 227(b)(3)’s language “unambiguously” acts as an “express limitation” on district courts,

requiring them to apply state law when adjudicating TCPA claims. See European Cmty. v. RJR Nabisco,

Inc., 424 F.3d 175, 179 (2d Cir. 2005) (recognizing that we are bound by our prior decisions except

“where there has been an intervening Supreme Court decision that casts doubt on our controlling

precedent”) (internal quotation marks omitted). In our now-vacated decision, we held that our

previous cases interpreting section 227(b)(3) compelled us to conclude that we should “use[] ‘state

law to define the federal cause of action,’” which included application of the relevant state statute of

limitations. Giovanniello, 660 F.3d at 593, quoting Holster, 618 F.3d at 216. Those cases upon which we

relied for the proposition that section 227(b)(3) imposes substantive limitations, derived from state

law, on TCPA claims are based, at least in part, on our jurisdictional decision in Foxhall. As a result,

although Mims does not address the precise statute of limitations issue we are faced with here, its

holding impacts our case law interpreting section 227(b)(3).

        Our discussion of section 227(b)(3) in Bonime demonstrates how our interpretation of section

227(b)(3)’s “if otherwise permitted” language relates to our jurisdictional decision in Foxhall. Bonime

held that because section 227(b)(3)’s language constitutes an “express limitation on the TCPA,”

New York’s class action statute, not Federal Rule of Civil Procedure 23, governed the viability of a

class action claim brought in federal court under the court’s diversity jurisdiction. 547 F.3d at 499–

502. Bonime had two rationales, only one of which survived at the time we filed our previous opinion.

First, Bonime held that because “the TCPA functionally operates as state law, [we had to] apply the

Erie doctrine to the TCPA” just as we would to substantive state law and therefore we looked to

New York’s class procedures. Id. at 501. This line of reasoning was expressly overruled by the

Supreme Court, as we pointed out in Holster, 618 F.3d at 217 (explaining that “to the extent that

[Bonime] was based on treating the TCPA ‘as if it were a state law,’ [the Supreme Court’s decision in]


                                                   8
Shady Grove [Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010)] abrogates [that]

holding”).

        Second, and independently, Bonime explained that as a matter of statutory construction, the

language of the TCPA (“if otherwise permitted by the laws or rules of court of a State”)

“unambiguous[ly]” created an “express limitation on the TCPA [that] federal courts are required to

respect.” 547 F.3d at 502. In other words, Bonime concluded that the statute, by its terms, made a

TCPA claim contingent on applicable state law. Id.

        Judge Calabresi, in a concurring opinion, explained the majority’s second rationale, expressly

connecting jurisdiction and the conclusion that the TCPA, as a matter of statutory interpretation,

acts as a substantive limitation on TCPA claims in federal court. Judge Calabresi explained that the

TCPA “directs courts to look to ‘the laws’ and ‘rules of court’ of a state.” Id. at 503 (Calabresi, J.,

concurring). Accordingly, he explained, if a state “refuses to recognize a cause of action [via its class

action rules, for example], there remains [nothing] to which any grant of federal court jurisdiction

could attach.” Id. This conclusion “derive[d] inevitably,” Judge Calabresi explained, from the court’s

prior decisions, such as Foxhall, in which the court determined that state courts had exclusive

jurisdiction over TCPA claims. Id.

        Judge Calabresi explained, however, that in a different jurisdictional context, section

227(b)(3) could have a decidedly different meaning. Id. Indeed, Judge Calabresi identified that

contrary to this court, the Seventh Circuit had interpreted the TCPA as conferring federal-question

jurisdiction on district courts. Id., citing Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th

Cir. 2005). Under the Seventh Circuit’s approach, Judge Calabresi said, the TCPA’s “if otherwise

permitted” language has been read “as merely creating an alternative forum [in which to bring TCPA

claims], rather than as foreclosing jurisdiction or relief in federal court.” Id. In other words, in the

Seventh Circuit, where federal-question jurisdiction exists, section 227(b)(3) is viewed as


                                                    9
congressional permission empowering states to refuse to entertain TCPA claims. Id.; see also Brill, 427

F.3d at 451.

         Judge Calabresi then stated that such an interpretation was not appropriate in Bonime because

the court in Foxhall, which was reaffirmed in Gottlieb, 436 F.3d at 336, held that section 227(b)(3)

does not permit federal-question jurisdiction, and therefore, cannot be viewed as merely providing

an alternative forum—i.e., state court—in which plaintiffs may bring TCPA claims. 547 F.3d at 504.

Instead, Judge Calabresi believed that the Second Circuit’s case law required the court to conclude

that section 227(b)(3)’s “state-centered language” had to be interpreted “as having substantive

content—content that deprived us of federal question jurisdiction.” Id. Thus, Judge Calabresi

explained, because prior decisions had given “the ‘if otherwise permitted’ clause such content, [the

court could not] ignore its instruction in construing the TCPA.” Id. As a result, Judge Calabresi

concluded that the court had to hold that a TCPA claim does not “survive state law determinations

that bar it.” Id.

         In Holster, we reaffirmed the second rationale of Bonime and adopted expressly the reasoning

of Judge Calabresi’s concurrence. 618 F.3d at 217. Thus, we determined that we had to read the “if

otherwise permitted” language “as a delegation by Congress to the states of considerable power to

determine which causes of action lie under the TCPA.” 618 F.3d at 217. We extended Holster’s

teaching in our prior decision, determining that we had to incorporate Connecticut’s statute of

limitations to bar Giovanniello’s claims. 660 F.3d at 593.

         As described above, Mims has now changed the jurisdictional landscape for TCPA claims.

Under a regime in which jurisdiction over TCPA claims rested exclusively in state courts or federal

courts in diversity, section 227(b)(3)’s state-centric language suggests that the TCPA uses “state law

to define the federal cause of action” and therefore constitutes an express limitation on all TCPA

claims. Holster, 618 F.3d at 216. We relied on this interpretation of section 227(b)(3) in our prior


                                                  10
decision in this case, holding that state statutes of limitations define TCPA claims in state courts.

Giovanniello, 660 F.3d at 592–93. Mims upends our previous approach, however, recognizing that

despite section 227(b)(3)’s state-oriented language, federal courts have federal-question jurisdiction

over TCPA claims. Mims further recognizes that the TCPA “creates [the plaintiff’s] claim . . . and

supplies the substantive rules that will govern the case.” 132 S. Ct. at 745. Where jurisdiction is not

exclusive to state courts (or federal courts applying the TCPA as state law in diversity) and federal

law provides the “substantive rules” of a TCPA claim in federal court, Mims’s holding thus suggests

that section 227(b)(3)’s state-oriented language applies only to TCPA claims in state court, not the

universe of TCPA claims.

        We therefore hold that Mims expressly abrogates Foxhall and undermines the holdings of

Gottlieb, Bonime, and Holster insofar as those cases rest their interpretation of section 227(b)(3) on the

jurisdictional approach that existed prior to Mims. Thus, although ALM is correct that Mims does not

directly control the statute of limitations question we face here, because Mims’s holding casts doubt

on cases upon which we previously relied, we must reexamine the meaning of section 227(b)(3). In

particular, we must determine whether, as Judge Calabresi suggested in his concurrence, section

227(b)(3) merely creates an “alternative forum” for TCPA claims given the jurisdictional shift in

Mims. See Bonime, 547 F.3d at 503–04.

                                                   III.

        Beyond its jurisdictional holding, Mims’s reasoning likewise undercuts a key basis of our

prior interpretation of section 227(b)(3). Our previous decisions interpreting the “if otherwise

permitted” clause relied heavily on the rationale that the TCPA’s purpose was to enable states to

expand their jurisdictional reach to get at out-of-state offenders. See, e.g., Holster, 618 F.3d at 217

(“After lauding states’ efforts to combat telemarketing abuses, the TCPA’s congressional findings

suggest that a key issue the statute aimed to resolve was the inability of state laws to deal with the


                                                   11
problem’s interstate nature”); Bonime, 547 F.3d at 499, quoting Gottlieb, 436 F.3d at 342 (explaining

that “[t]he legislative history of the TCPA ‘indicates that Congress intended the TCPA to provide

interstitial law preventing evasion of state law by calling across state lines’” and thus, it “‘sought to

put the TCPA on the same footing as state law, essentially supplementing state law where there were

perceived jurisdictional gaps’”). This view of the TCPA persuaded us that the “if otherwise

permitted” clause required us to “define what causes of action can lie under the TCPA” by reference

to state law. Holster, 618 F.3d at 217.

        The Court in Mims expressly rejected the idea that “Congress sought only to fill a gap in the

States’ enforcement capabilities” in enacting the TCPA. 132 S. Ct. at 751. Indeed, the Court

identified the significant “federal interest in regulating telemarketing to protec[t] the privacy of

individuals while permit[ting] legitimate [commercial] practices.” Id. (emphasis added) (internal

quotation marks omitted). The Court explained that had Congress’s purpose merely been to fill an

interstitial gap in states’ enforcement, Congress “could have passed a statute providing that out-of-

state telemarketing calls directed into a State would be subject to the laws of the receiving State.” Id.

Instead, in contrast to our prior decision in this case in which we held that Congress had “effectively

disclaimed any interest in uniform treatment of TCPA claims among the states,” 660 F.3d at 596, the

Court in Mims explained that in passing the TCPA, Congress “enacted detailed, uniform, federal

substantive prescriptions and provided for a regulatory regime administered by a federal agency.”

132 S. Ct. at 751. The Court further explained that given the significant “federal interest in regulating

telemarketing, . . . . Congress’s design would be less well served if consumers had to rely on ‘the laws

or rules of court of a State,’ or the accident of diversity jurisdiction, to gain redress for TCPA

violations.” Id.

        Mims thus suggests that to vindicate the significant federal interest reflected in the TCPA and

to ensure uniformity, TCPA claims in federal court are not subject to the vagaries of state law. In


                                                   12
terms of the applicable statute of limitations, Mims suggests that Congress did not intend the “if

otherwise permitted” language to direct federal courts to divine and apply the relevant state

limitations periods.

        Not only does Mims undermine our prior interpretation of section 227(b)(3), it also endorses

an alternative interpretation of the “if otherwise permitted” clause. In response to the argument that

Congress intended to vest jurisdiction over TCPA claims exclusively in state courts given section

227(b)(3)’s peculiar state-law oriented language, the Court explained that “by providing that private

actions may be brought in state court ‘if otherwise permitted by the laws or rules of court of [the]

State,’ Congress arguably gave States leeway they would otherwise lack to ‘decide for [themselves]

whether to entertain claims under the [TCPA].’” Id. at 751 (citation omitted), quoting Brill, 427 F.3d at

451.

        Mims thus suggests that in enacting the TCPA, Congress merely enabled states to decide

whether and how to spend their resources on TCPA enforcement. Such permission from Congress

was necessary to avoid Supremacy Clause concerns. See Mims, 132 S. Ct. at 751 n.12 (explaining that

“[w]ithout the ‘if otherwise permitted’ language, there is little doubt that state courts would be

obliged to hear TCPA claims” because of the Supremacy Clause) (citation omitted). Read in this

way, section 227(b)(3)’s “if otherwise permitted” language plainly has limited effect and cannot be

construed as requiring us to apply state limitations periods to TCPA claims in federal court.

        We rejected this interpretation in our prior decision, indicating that our precedent foreclosed

such an interpretation. 660 F.3d at 593, citing Holster, 618 F.3d at 216, and Bonime, 547 F.3d at 504. As

explained above, Mims has significantly undercut the reasoning of those decisions. Accordingly,

reading section 227(b)(3) as merely providing an alternative forum becomes a natural reading of the

clause. See Bonime, 547 F.3d at 503–04 (Calabresi, J., concurring).




                                                   13
        This alternative interpretation, that section 227(b)(3) merely permits states to open or close

their courthouse doors to TCPA claims, is consistent with the text of the statute. By its terms,

section 227(b)(3) permits private actions in state court: “a person or entity may . . . bring [an action]

in an appropriate [state court].” The availability of that state court action is modified by the phrase

“if otherwise permitted by the laws or rules of court of a State.” Section 227(b)(3) does not mention

expressly any limitation on TCPA claims in federal court. Indeed, given the significant damage Mims

does to our prior case law interpreting section 227(b)(3), we would now have to interpret the “if

otherwise permitted” language extremely broadly to conclude that it requires us to apply state law to

define a TCPA claim in federal court.

        In sum, Mims’s holding that federal-question jurisdiction exists for TCPA claims

fundamentally alters how we view section 227(b)(3). Our prior case law interpreting section

227(b)(3)’s “if otherwise permitted” clause as having “substantive content,” that is, content that not

only worked to deprive federal courts of jurisdiction but also as a delegation of authority to state

courts to set the terms of TCPA claims, see Bonime, 547 F.3d at 502–504 (Calabresi, J., concurring),

no longer holds true. Further, Mims undercuts our reasoning as to the purpose of the TCPA. Indeed,

Mims emphasizes that Congress had a strong federal interest in uniform standards for TCPA claims

in federal court. Moreover, Mims offers an alternative interpretation of the “if otherwise permitted”

language. That interpretation is consistent with the plain language of section 227(b)(3), and is

consistent with our sister circuits who have always permitted district courts to hear TCPA claims

under their federal-question jurisdiction. See Brill, 427 F.3d at 451.

        The Court in Mims emphasized that it would not hold that Congress had vested jurisdiction

in state courts alone merely from the “if otherwise permitted” language, concluding that it did not

“expressly or by fair implication, exclude[] federal-court adjudication.” 132 S. Ct. at 749. The Court




                                                    14
made clear that “Congress knew full well how to grant exclusive jurisdiction with mandatory

language.” Id. at 750.

        The same is true here: Congress knew full well how to displace section 1658(a)’s catch-all

limitations period with clear language. Based on Mims, for the reasons explained above, we conclude

that Congress did not clearly intend to displace section 1658(a) when it enacted the TCPA,

particularly section 227(b)(3). Given the liberal interpretation we are required to give section 1658(a),

see Jones, 541 U.S. at 382, we conclude that section 227(b)(3)’s “if otherwise permitted” language does

not operate as an exception to the generally applicable federal catch-all limitations period in 28

U.S.C. § 1658(a). That statute’s four-year limitations period therefore governs Giovanniello’s

September 8, 2009 filing in Connecticut District Court.

                                                  IV.

        Giovanniello’s September 8, 2009 action was filed more than four-years after he allegedly

received the unlawful fax on January 28, 2004. Giovanniello contends that applicable tolling rules

extended the federal limitations period, making his September 8, 2009 filing timely. We did not reach

the tolling question in our prior decision because we concluded that Connecticut’s two-year

limitations period applied, rendering Giovanniello’s claim untimely even under broad tolling

principles. 660 F.3d at 589. Having determined that the federal catch-all limitations period applies to

Giovanniello’s claim, we now apply federal tolling rules from American Pipe and its progeny.

                                                   A.

        Under the American Pipe tolling doctrine, “the commencement of a class action suspends the

applicable statute of limitations as to all asserted members of the class who would have been parties

had the suit been permitted to continue as a class action.” 414 U.S. at 554.

        We have not had occasion to determine the scope of American Pipe tolling. As we identified

previously, however, each of our sister circuits to have discussed this issue has determined that


                                                   15
American Pipe tolling ends upon denial of class certification. See Taylor v. United Parcel Serv., Inc., 554

F.3d 510, 519 (5th Cir. 2008); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir. 2006);

Yang v. Odom, 392 F.3d 97, 102 (3d Cir. 2004); Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.

2002); Stone Container Corp. v. United States, 229 F.3d 1345, 1355–56 (Fed. Cir. 2000); Armstrong v.

Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir. 1998) (en banc); Andrews v. Orr, 851 F.2d 146,

149–50 (6th Cir. 1988); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir. 1982). We now take this

opportunity to join our sister circuits and hold that American Pipe tolling does not extend beyond the

denial of class status. Class status was denied in this case when the Southern District of New York

determined that a class action was unavailable under New York law. Individual class members were

required at that time to take action to preserve their rights or face the possibility that their action

could become time barred.

        Such a rule is consistent with—if not compelled by—the decisions of the Supreme Court

and this court. The Supreme Court in American Pipe held that “the commencement of the class

action in th[e] case suspended the running of the limitations period only during the pendency of the motion

to strip the suit of its class action character.” 414 U.S. at 561 (emphasis added). Further, the Court in Crown,

Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), held: “Once the statute of limitations has been tolled,

it remains tolled for all members of the putative class until class certification is denied. At that point, class

members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at

354 (emphasis added). Similarly, we have explained that

        [b]ecause members of the asserted class are treated for limitations purposes as having
        instituted their own actions, at least so long as they continue to be members of the class, the
        limitations period does not run against them during that time. Once they cease to be
        members of the class—for instance, when they opt out or when the certification
        decision excludes them—the limitation period begins to run again on their claims.

In re Worldcom Secs. Litig., 496 F.3d 245, 255 (2d Cir. 2007) (emphasis added); see In re Agent Orange

Liability Litigation, 818 F.2d 210, 214 (2d Cir. 1987) (explaining that “[t]he intent of the American Pipe


                                                       16
rule is to preserve the individual right to sue of the members of a proposed class until the issue of class

certification has been decided”) (emphasis added). Although none of these cases directly addressed the

precise scope of American Pipe tolling, their language does not lend itself to a conclusion that tolling

extends beyond the initial determination of class status in the district court.

         The issue of class status was decided by the Southern District of New York here when it

applied then-applicable New York state law, determining that Giovanniello could not maintain a

class action and, as a result, fell short of the amount in controversy requirements of 28 U.S.C.

§ 1332.1 Although the possibility of reconsideration or reversal on appeal existed, Giovanniello is

incorrect that this rendered the district court’s decision “provisional.” Indeed, we agree with the

district court that “[a]fter a district court’s determination of whether an action may be maintained as

a class action, the class is no longer putative: having been subjected to a legal decision, the class is

either extant or not.” Giovanniello, 2010 WL 3528649, at *5. For this very reason, the Court in Crown,

Cork recognized that once class status is denied, “class members may choose to file their own suits

or to intervene as plaintiffs in the pending action.” Crown, Cork, 462 U.S. at 354. If the Court had

contemplated that tolling continued through the pendency of reconsideration or through appeal,

there would be no need for class members to take action to protect their rights as the Court in

Crown, Cork explained. Thus, once Giovanniello’s attempt to secure class status failed, the statute of

limitations began to run again.




1
   In determining that the Southern District of New York decided the putative class status once it dismissed
Giovanniello’s action, we are not necessarily deciding whether this means that Giovanniello’s September 8, 2009
filing in the District of Connecticut, which also sought class status, constituted a serial class action filing contrary to
the rule announced in Korwek v. Hunt, 827 F.2d 874 (2d Cir. 1987). Even if we determined that Giovanniello’s
Connecticut filing is foreclosed by Korwek, however, we would be required to address the tolling issue because
post-Mims, Giovanniello could have maintained the action under the district court’s federal-question jurisdiction as
an individual claim. Indeed, Giovanniello’s Second Amended Complaint is styled as an individual and class action
and invokes federal-question jurisdiction under 28 U.S.C. § 1331 in addition to diversity jurisdiction under 28
U.S.C. § 1332. Thus, either way, we would have to reach the tolling issue, and the tolling issue disposes of both
Giovanniello’s putative class action and his individual claim.


                                                           17
        This narrow interpretation is consistent with the reasoning underlying American Pipe tolling.

The American Pipe rule is based on the idea that under Rule 23 of the Federal Rules of Civil

Procedure, potential class members are protected by the commencement of a putative class action,

even if they are unaware of the action. See American Pipe, 414 U.S. at 550–52. Because individual class

members, and even unaware class members, may “rely on the existence of the [putative class action]

suit to protect their rights,” they need not file an action or move to intervene during the pendency

of class certification. Crown, Cork, 462 U.S. at 350. To hold otherwise, the Court has indicated, would

result in a “multiplicity of [filings]” by potential class members seeking to preserve their rights even

while the class certification proceeds, “precisely the situation that Federal Rule of Civil Procedure 23

and the tolling rule of American Pipe were designed to avoid.” Id. at 351.

        This objectively reasonable reliance rationale breaks down once the district court disallows

class status. The Eleventh Circuit has explained that “[w]hen the district court denies class [status],

the named plaintiffs no longer have a duty to advance the interests of the excluded putative class

members.” Armstrong, 138 F.3d at 1381. After class status is denied, the named plaintiff thus has no

responsibility to pursue any additional avenue to maintain the action as a class action under Rule 23,

such as appeal or reconsideration. See id. As a result, unlike during the pendency of class certification

where Rule 23 requires that named plaintiffs function as representatives of potential class members,

once class status has been disallowed, Rule 23 no longer operates to protect non-named plaintiffs.

        Further, even where the plaintiffs seek reconsideration or appeal, ostensibly representing the

rights of non-named plaintiffs, reliance is not objectively reasonable. As the court in Armstrong

identified, reconsideration and appeal rarely result in a reversal of the district court decision. Id. at

1381 & n.12; see also Richard D. Freer, Interlocutory Review of Class Action Certification Decisions:

A Preliminary Empirical Study of Federal and State Experience, 35 W. St. U. L. Rev. 13, 20 (2007)

(concluding that between 1997 and late 2007, fewer than three district court denials of class


                                                   18
certification were reversed by the Second Circuit on interlocutory appeal). Thus, we conclude that

the remote possibility of reversal of the district court’s denial of class status does not provide a basis

for objectively reasonable reliance by individual plaintiffs.

        Giovanniello contends that Rule 23(f), which permits interlocutory appeal of class

certification decisions, changes the nature of appeals from the denial of class status and thereby

undermines any reliance on the Armstrong line of cases.

        We conclude that Rule 23(f) does not alter our analysis. To begin, Giovanniello’s appeal

from the Southern District of New York’s dismissal was not an interlocutory appeal under Rule

23(f). As explained, the district court dismissed Giovanniello’s putative class action after determining

that class status was unavailable under New York law. This gave Giovanniello an appeal as of right to

this court. Giovanniello’s argument as to Rule 23(f) is therefore relevant only as it relates to the

general argument that the rule requires departure from our sister circuits. We conclude that the rule

does not affect our decision as to the scope of American Pipe tolling.

        Although Armstrong, the lead case on this issue, was decided prior to the enactment of Rule

23(f), a number of post-Rule 23(f) cases have held that tolling does not extend beyond a district

court decision denying class status even after the promulgations of Rule 23(f). See, e.g., Taylor, 554

F.3d at 519; Bridges, 441 F.3d at 212; Yang, 392 F.3d at 102; Culver, 277 F.3d at 914; Stone Container

Corp., 229 F.3d at 1355–56.

        Further, there is no reason why Rule 23(f) compels a conclusion that we must depart from

our sister circuits. Interlocutory appeal from a denial of class certification existed prior to the

enactment of Rule 23(f), even if it was rare. See, e.g., Armstrong, 138 F.3d at 1387. While Rule 23(f)

removes some procedural burden to interlocutory appeal of class certification decisions, the circuit

court has “unfettered discretion whether to permit [an] appeal, akin to the discretion exercised by

the Supreme Court in acting on a petition for certiorari.” Fed. R. Civ. P. 23 advisory committee’s


                                                    19
notes to the 1998 amendment. Giovanniello has not demonstrated that circuit courts freely grant

petitions for interlocutory review of class status decisions nor that where such petitions are granted,

interlocutory appeal is more likely to be successful because of Rule 23(f). Thus, we continue to

conclude with the court in Armstrong that even after Rule 23(f), “reliance on the possibility of a

reversal of the [district] court’s [class status] decision is ordinarily not reasonable.” 138 F.3d at 1381.

        In addition, Giovanniello’s argument as to Rule 23(f) ignores what has stayed the same.

Nothing in Rule 23(f) impacts the availability of a motion for reconsideration. Likewise, some

named plaintiffs are content to wait until a final judgment before pursuing appeal of a class status

determination. Thus, in some instances, the final word on class status may remain unresolved for

many years while proceedings play out. See Stone Container, 229 F.3d at 1355. In those cases, then,

Armstrong’s rationale that some appeals will remain in “limbo” for years, remains unaffected. 138

F.3d at 1388. Accordingly, the advent of Rule 23(f) does not compel us to depart from the rule

adopted by every other circuit court to have addressed this issue.

        Finally, we emphasize the need for a bright-line rule in this area of law. American Pipe tolling

is an exception to the operation of an applicable statute of limitations. See Police & Fire Ret. Sys. v.

IndyMac MBS, Inc., --- F.3d ---, 2013 WL 3214588, at *5–*6 (2d Cir. June 27, 2013) (identifying that

American Pipe tolling is either a legal or equitable exception to the applicable statute of limitations).

Some members of the Supreme Court have expressed concern that American Pipe tolling might be

abused. See Crown, Cork, 462 U.S. at 354 (Powell, J., concurring) (reiterating that “[t]he tolling rule of

American Pipe is a generous one, inviting abuse”). We have likewise explained that “American Pipe and

Crown, Cork represent a careful balancing of the interests of plaintiffs, defendants, and the court

system.” Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987). Given the uncertainty that exists in

extending tolling beyond denial of class status, even under Rule 23(f)’s new regime, we conclude that

a narrow, clearly defined rule best serves American Pipe tolling.


                                                    20
        This bright-line cut off of American Pipe tolling is not inconsistent with the Rules Enabling

Act, 28 U.S.C. § 2072(b), which provides that federal procedural rules “shall not abridge, enlarge or

modify any substantive right.” Giovanniello argues that cutting off class-action tolling upon a district

court’s denial of class status deprives plaintiffs of their substantive, not merely procedural, rights to

pursue TCPA claims. The Court in American Pipe rejected the argument in that case that the Rules

Enabling Act prohibited the Court’s tolling rule. 414 U.S. at 558–59 (explaining that “[i]n

recognizing judicial power to toll statutes of limitation in federal courts we are not breaking new

ground” and identifying that the Rules Enabling Act “does not restrict the power of the federal

courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent

with the legislative purpose”). Our decision simply clarifies the scope of American Pipe tolling and

thus, does not run afoul of the Rules Enabling Act.

                                                   V.

        In sum, we conclude that once Giovanniello’s putative class action was denied class status

(in this case upon dismissal of his claim in the Southern District of New York) the tolling of section

1658(a)’s four-year limitations period ceased. Neither the pendency of Giovanniello’s motion for

reconsideration nor the appellate period further tolled the statute. Accordingly, as Giovanniello

concedes, his September 8, 2009 claim was filed thirty days too late. We therefore affirm the district

court’s decision.

        AFFIRMED.




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