                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0402n.06

                                        No. 10-1998

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                                                                              FILED

IMHOFF INVESTMENT, LLC,          )                                        Apr 13, 2012
                                 )                                  LEONARD GREEN, Clerk
      Plaintiff-Appellant,       )
                                 )
v.                               )                ON APPEAL FROM THE UNITED
                                 )                STATES DISTRICT COURT FOR THE
ALFOCCINO OF AUBURN HILLS, INC., )                EASTERN DISTRICT OF MICHIGAN
and ALFOCCINO, INC.,             )
                                 )
      Defendants-Appellees.      )




       Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.


       PER CURIAM. The plaintiff, Imhoff Investment, LLC, appeals the district court’s

order dismissing its complaint for lack of subject-matter jurisdiction. Imhoff brought a claim

pursuant to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(3), which

provides for a private right of action in state court. The district court dismissed the

complaint, holding that the TCPA did not confer federal-question jurisdiction. 28 U.S.C.

§ 1331. In doing so, the district court correctly noted that the majority of circuit courts

addressing this issue have held that the TCPA does not authorize a private cause of action

in federal court and that jurisdiction in section 227(b)(3) cases lies exclusively in state

court. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (“We join the Second,

Third, Fourth, Fifth, and Eleventh Circuits in the somewhat unusual conclusion that state
No. 10-1998
Imhoff Investment v. Alfoccino of Auburn Hills

courts have exclusive jurisdiction over a cause of action created by a federal statute, the

Telephone Consumer Protection Act of 1991.”) (internal quotation marks omitted),

abrogated on other grounds by Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012).


       Nevertheless, while the instant appeal was pending, another panel of this court

reached a conclusion contrary to the majority rule, interpreting the TCPA to confer non-

exclusive jurisdiction over private actions filed in state court under section 227(b)(3). See

Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463 (6th Cir. 2010) (“[T]he district court

had federal-question jurisdiction over the claims under the Telephone Act and pendent

jurisdiction over the rest of the claims.”). We have long held that a “panel of this [c]ourt

cannot overrule the decision of another panel.” Salmi v. Sec’y of Health & Human Servs.,

774 F.2d 685, 689 (6th Cir. 1985). Thus, Charvat “remains controlling authority [in the

Sixth Circuit] unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this [c]ourt sitting en banc overrules the prior decision.” Id.

In the absence of either occurrence, we conclude that the district court has subject-matter

jurisdiction in this case and, therefore, REVERSE the judgment of the district court and

REMAND the matter for further proceedings.




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