The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff commenced this action individually and on behalf of others similarly situated alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C), and regulation 47 C.F.R. § 64.1200(a)(3), promulgated thereunder (hereinafter referred to collectively as "TCPA"). Before this Court are defendant's motion to dismiss for lack of subject-matter jurisdiction and plaintiff's motion for class certification. The issue presented in this case is whether a New York law that prevents TCPA class actions from being maintained in state court divests federal courts of jurisdiction over a TCPA class action brought in federal court pursuant to diversity jurisdiction. As set forth below, the Court concludes that (1) the substantive law of the state applies in TCPA class actions brought in federal court, and (2) pursuant to substantive New York law, a class may not be maintained in the instant lawsuit for alleged violations of the TCPA. Therefore, since there can be no class action for TCPA claims under New York law, and the parties concede that there is no basis for jurisdiction in the absence of such a class action (because the amount in controversy cannot be met), this case must be dismissed.
The following facts are derived from the amended complaint and are taken as true for purposes of this motion.
On or about January 25, 2002, defendant Gatco, Inc., doing business as Folio Associates ("Gatco"), a citizen of Massachusetts, sent an unsolicited facsimile (hereinafter "fax") advertisement to plaintiff Charles E. Holster III. (Am. Compl. ¶¶ 7, 8.) Plaintiff is a citizen of New York and maintains and operates his fax machine at his office in Mineola, New York. (Id. ¶ 6.) Defendant transmitted unsolicited advertisements via fax to more than 10,000 recipients, including plaintiff. (Id. ¶ 10.) Defendant did not seek prior express invitation or permission from any of the recipients to transmit the fax, nor did plaintiff give defendant prior express permission to transmit the fax. (Id. ¶¶ 9, 11.) According to the complaint, these unsolicited faxes are prohibited by the TCPA and entitle plaintiff (and proposed class members) to, among other relief, $1,500 in treble damages per fax.
Plaintiff commenced this action individually and on behalf of others similarly situated on May 24, 2005 seeking statutory damages, injunctive relief, attorneys' fees and costs for violations of the TCPA. On July 11, 2005, plaintiff filed an amended complaint. Plaintiff alleges that jurisdiction is based on diversity pursuant to 28 U.S.C. § 1332.
On February 24, 2006, this case was reassigned to the undersigned from the Honorable Denis R. Hurley. On June 19, 2006, defendant moved to dismiss the case for lack of subject-matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). The Court heard argument on the motion to dismiss on July 19, 2006, and granted plaintiff permission to brief class certification prior to deciding the motion to dismiss. On October 5, 2006, plaintiff moved for class certification. On November 2, 2006, the Court heard argument on the motion for class certification. Accordingly, presently before this Court are two motions: (1) defendant's motion to dismiss the case for lack of jurisdiction on the grounds that (a) a TCPA class action may not be maintained under Rule 23 of the Federal Rules of Civil Procedure and/or (b) a class action may not be maintained pursuant to N.Y.C.P.L.R. § 901(b); and (2) plaintiff's motion for class certification.
This case is among a recent string of lawsuits alleging the transmittal of unsolicited advertisements via fax in violation of the TCPA. The TCPA makes it unlawful "for any person within the United States, or any person outside the United States if the recipient is within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement" unless certain conditions are met. 47 U.S.C. § 227(b)(1)(C). A private right of action exists under the statute pursuant to § 227 (b)(3) which provides:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State (A) an action based on a violation of this subsection . . . to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.
47 U.S.C. § 227(b)(3). Furthermore, a court may award treble damages in the amount of $1,500 per fax if it finds that the defendant "willfully ...