The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
On March 8, 2007, Plaintiff Earle Giovanniello ("Plaintiff") filed a complaint against ALM Media, Inc. that alleged violations of the Federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et. seq. on behalf of himself and a putative class. Compl. ¶ 1 -- 2. The TCPA provides statutory damages against those who send unsolicited facsimile communications ("faxes"). 47 U.S.C. § 227 et. seq. On April 27, 2007, the Plaintiff filed an Amended Complaint ("Am. Compl.") against The New York Law Publishing Company ("Defendant") and, at the same time, terminated its action against ALM Media, Inc. Am. Compl. ¶ 1. Defendant now moves this Court to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) ("Rule 12(b)(1)"). For the reasons stated below, the motion is GRANTED in its entirety.
Plaintiff resides in New Haven, Connecticut, and is a citizen of Connecticut. Am. Compl. ¶ 6. Defendant is a New York corporation with its principal place of business in New York, New York. Am. Compl. ¶ 7. Plaintiff asserts federal diversity jurisdiction in this Court pursuant to 28 U.S.C. § 1332(d)(2)(A) and alleges an amount in controversy in excess of $5,000,000. Am. Compl. ¶¶ 3 -- 4.
On or about January 28, 2004, Plaintiff received a fax from Defendant advertising the "commercial availability or quality of property, goods or services." Id. ¶ 8. Plaintiff alleges he is one of approximately 10,000 recipients of unsolicited facsimile advertisements between January 28, 2000, and the present. Id. ¶¶ 10, 1. According to Plaintiff, Defendant did not seek or obtain prior express invitation or permission from Plaintiff or any of the 10,000 "similarly situated" recipients. Id. ¶¶ 9, 12. Further, Plaintiff contends that at least two-thirds of the 10,000 recipients are citizens of states other than New York. Id. ¶ 11.
Plaintiff asserts, on behalf of himself and a putative class that Defendant violated 47 U.S.C. § 227(b)(1)(c)*fn2 and 47 C.F.R. § 64.1200(a)(3),*fn3 and seeks statutory damages pursuant to 47 U.S.C. § 227(b)(3)(A), treble damages pursuant to 47 U.S.C. § 227 (b)(3)(C), and an order enjoining Defendant from violating 47 U.S.C. § 227(b)(1)(c) and 47 C.F.R. § 64.1200(a)(3). Am. Compl. ¶¶ 14 -- 17.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a court's statutory or constitutional power to adjudicate a case and "typically . . . alleges that the federal court lacks either federal question or diversity jurisdiction over the action." Menashe v. V Secret Catalogue, No. 05-CV-239, 2005 WL 1580799 at *3 (S.D.N.Y. July 7, 2005) (Baer, J.); Leyse v. Domino's Pizza LLC, No. 04-CV-2411, 2004 WL 1900328 at *1 (S.D.N.Y. Aug. 24, 2004) (Baer, J.) (citation omitted). The Court must construe the complaint liberally and in conformity with the principle set FORTH in Fed. R. Civ. P. 8(f). Menashe, 2005 WL 1580799 at *3; Goel v. U.S. Dept. of Justice, No. 03-Cv-579, 2003 WL 22047877 at *2 (S.D.N.Y. Aug. 29, 2003) (Baer, J.).
However, "argumentative inferences favorable to the pleader will not be drawn." Goel, 2003 WL 22047877 at *2; accord 5A Charles A. Wright et al., Federal Practice and Procedure § 1350, at 218-219 (1990 & Supp. 1991). The mover and the pleader may use affidavits and other materials beyond the pleadings themselves in support of, or in opposition to, a challenge to subject matter jurisdiction. Goel, 2003 WL 22047877 at *2; see Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947); Exchange Nat'l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976), cert. denied sub. nom., 469 U.S. 884, 884 (1984). Once challenged, the burden of establishing a federal court's subject matter jurisdiction rests on the party asserting jurisdiction. See Luckett v. Bure, 290 F.3d 493, 497-98 (2d Cir. 2002); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
The Second Circuit has held that diversity jurisdiction exists under the TCPA. Gottlieb v. Carnival Corp., 436 F.3d 335, 343 (2d Cir. 2006) ("Congress did not intend to divest the federal court's of diversity jurisdiction over private cause of action under the TCPA."). The issue in this case is whether Plaintiff may maintain a TCPA class action in federal court based on diversity jurisdiction*fn4 when New York state law would otherwise bar the action.*fn5 This issue is not one of first impression; in fact, both state and federal courts have concluded that TCPA class actions are barred by N.Y. C.P.L.R. § 901 (b). See, e.g. Bonime v. Avaya, No. 06-CV-1630, slip op. 2006 WL 3751219(E.D.N.Y. Dec. 20, 2006); Holster v. Gatco, 485 F. Supp.2d 179 (E.D.N.Y. Mar. 23, 2007); Weber v. U.S. Sterling Securities, Inc., 924 A.2d 816 (Conn. June 19, 2007);*fn6 Bonime v. Bridge 21 Inc., 799 N.Y.S.2d 417, 418 (2d Dep't 2005); Bonime v. Disc. Funding Assocs., 799 N.Y.S.2d 418, 419 (2d Dep't 2005); Giovanniello v. Carolina Wholesale Of. Mach. Co., Inc., 815 N.Y.S.2d 248, 249 (2d Dep't 2006); Leyse v. Flagship Capital Servs. Corp., 803 N.Y.S.2d 52, 53 (1st Dep't 2005); Rudgayzer & Gratt v. Cape Canaveral Tour & Travel, Inc., 799 N.Y.S.2d 795, 800 (2d Dep't 2005); Weber v. Rainbow Software, Inc., 799 N.Y.S.2d 428 (2d Dep't 2005).
Nonetheless, Plaintiff contends that N.Y. C.P.L.R. § 901(b) does not apply to the TCPA because the TCPA arises under federal rather than state law.*fn7 This argument relies upon the Second Circuit's dicta in Gottlieb:
It is odd, of course, that a federal court sitting in diversity and considering a TCPA claim would apply federal substantive and procedural law. This fact, however, only emphasizes the sui generisnature of the statute. It is the rare federal statute that creates a cause of action that gives rise to jurisdiction under [28 U.S.C.] § 1332, but not under [28 U.S.C.] § 1331.
436 F.3d at 343 n.8. Plaintiff argues that because the TCPA arises under federal, and not state law, the doctrine pronounced in Erie R. Co. v. Tompkins is inapplicable.*fn8 Plaintiff relies upon the Second Circuit's statement in Achtman v. Kirby, McInerney & Squire, LLP, to support this proposition, "[t]he Erie doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in state law." 464 F.3d 328, 337 n.4 ...