     14-2194
     Fair v. Verizon Communications Inc., et al.


                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 26th day of October, two thousand fifteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   Avon E. Fair,
14
15                      Plaintiff-Appellant,
16
17               v.
18                                                                          14-2194
19
20   Verizon Communications Inc.,
21   Verizon Inc., Verizon, et al,
22
23                 Defendants-Appellees.
24   _____________________________________
25
26
27   FOR PLAINTIFF-APPELLANT:                           Avon E. Fair, pro se, New
28                                                      York, NY.
29
30
 1   FOR DEFENDANTS-APPELLEES:               Joseph A. D’Avanzo,
 2                                           Esq., Ledy-Gurren, Bass,
 3                                           D’Avanzo & Siff LLP,
 4                                           White Plains, NY.
 5
 6       Appeal from a judgment of the United States District Court

 7   for the Southern District of New York (Kaplan, J.).

 8       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 9   DECREED that the judgment of the district court is AFFIRMED.

10       Appellant Avon E. Fair, pro se, appeals the district court=s

11   dismissal for lack of subject matter jurisdiction of her

12   disability discrimination claims under Section 255 of the

13   Telecommunications Act of 1996, 47 U.S.C. § 255, and of her

14   state law fraud and breach of contract claims.     We assume the

15   parties= familiarity with the underlying facts, the procedural

16   history of the case, and the issues on appeal.

17       When reviewing the dismissal of a complaint for lack of

18   subject matter jurisdiction, we review the district court’s

19   factual findings for clear error and its legal conclusions de

20   novo.   Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012).

21   Upon review, we conclude that the district court correctly ruled

22   that it lacked diversity jurisdiction because the parties were

23   both citizens of New York State.    However, the district court

24   erred by dismissing the Telecommunication Act claim for lack
 1   of federal question jurisdiction rather than for failure to

 2   state a claim.

 3       The Telecommunications Act expressly provides that

 4   “[n]othing in this section shall be construed to authorize any

 5   private right of action to enforce any requirement of this

 6   section or any regulation thereunder.”    47 U.S.C. § 255(f).

 7   Furthermore, it grants “exclusive jurisdiction with respect to

 8   any complaint under this section” to the FCC.     Id.

 9       Determinations that a federal statute does not provide a

10   private right of action are typically subject to dismissal under

11   Federal Rule of Civil Procedure 12(b)(6) (the “Rules”) for

12   failure to state a claim.   See, e.g., Republic of Iraq v. ABB

13   AG, 768 F.3d 145, 171 (2d Cir. 2014) (affirming district court’s

14   dismissal under Rule 12(b)(6) that Foreign Corrupt Practices

15   Act does not provide a private right of action); Lopez v. Jet

16   Blue Airways, 662 F.3d 593, 597 (2d Cir. 2011) (affirming

17   district court’s dismissal under Rule 12(b)(6) that the Air

18   Carrier Access Act does not provide a private right of action);

19   George v. NYC Dep't of City Planning, 436 F.3d 102, 103 (2d Cir.

20   2006) (affirming district court’s dismissal under Rule 12(b)(6)

21   that the Coastal Zone Management Act does not provide a private

                                    3
 1   right of action).   Here, the conclusion that § 255 provides no

 2   private right of action is categorically supported by the

 3   explicit text of § 255(f); but that does not compel a different

 4   result here.   Cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006)

 5   (“A claim invoking federal-question jurisdiction under 28

 6   U.S.C. § 1331 may be dismissed for want of subject-matter

 7   jurisdiction if it is not colorable . . . .”).   Since plaintiff

 8   has asserted a cause of action under § 255, which § 255 provides

 9   no private right of action, her § 255 claims must be dismissed

10   for failure to state a claim.

11       Accordingly, rather than vacate and remand the case to the

12   district court, we affirm the dismissal under Rule 12(b)(1) for

13   lack of diversity, and we affirm the dismissal of the

14   Telecommunications Act claims, albeit on different grounds,

15   under Rule 12(b)(6) for failure to state a claim.      See Norex

16   Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir.

17   2010) (affirming under 12(b)(6) without remand a district

18   court’s 12(b)(1) dismissal for lack of federal question subject

19   matter jurisdiction in a case concerning the extraterritorial

20   application of civil RICO).



                                     4
1       We have considered all of Fair’s remaining arguments and

2   find them to be without merit.    Accordingly, we AFFIRM the

3   judgment of the district court.

4
5                              FOR THE COURT:
6                              Catherine O=Hagan Wolfe, Clerk




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