Raitport v. Harbour Capital Corporation

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Menachem Raitport,
Plaintiff
v. 	Civil No. 09-cv-156-SM
Opinion No. 2010 DNH 039
Harbour Capital Corporation,
Defendant
O R D E R
Defendant moves, on two grounds, to dismiss this private
claim brought under the Telephone Consumer Protection Act
(“TCPA”). 	First, defendant says federal question jurisdiction
(28 U.S.C. § 1331) has not been properly invoked, and, second,
that plaintiff fails to state a cause of action. 	See Fed. R.
Civ. P. 12(b)(1) and (b)(6). 	The parties have fully briefed and
argued the issues, and, during oral argument, even addressed a
number of other potentially dispositive (but premature) issues.
While there is a split of authority among the courts of
appeals that have addressed the issue 1 , I think the Seventh
1 	Several federal circuit courts of appeals have concluded
that there is no federal question jurisdiction over private TCPA
claims. 	Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000);
Foxhall Realty Law Offices v. Telecommunications Premium Servs.,
Ltd., 156 F.3d 432, 435 (2d Cir. 1998); Erienet, Inc. v. Velocity
Net, 156 F.3d 513, 519 (3d Cir. 1998); Nicholson v. Hooters of
Augusta, 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King v.
Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997);
International Science & Tech. Inst., Inc. v. Inacom Communs., 106
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Circuit’s view, concluding that a private TCPA claim brought
under 47 U.S.C. § 227 does present a federal question for § 1331
purposes, is the most persuasive. 	As the court noted in Brill,
the pertinent statutory provision
. . . does not mention removal or the general federal-
question jurisdiction. 	It does not declare state
jurisdiction to be exclusive. 	Thus it does not
expressly override a defendant’s removal rights under
. . . § 1441 (because a claim that a business violated
the Telephone Consumer Protection Act arises under
federal law) . . . .
Brill, 427 F.3d at 450. 	A claim arising under federal law is a
claim over which federal courts have subject matter jurisdiction,
unless Congress has explicitly stripped that jurisdiction.
Congress has not expressly stripped the federal courts of federal
question jurisdiction over TCPA claims, and the statute’s
reference to state jurisdiction over such claims is a reference
to concurrent, not exclusive, jurisdiction.
Finally, taking the facts asserted in the complaint as true,
as the court must at this stage, the complaint does, facially,
allege a cause of action for violation of the TCPA.
F.3d 1146, 1156 (4th Cir. 1997). 	But the Seventh Circuit,
following subsequent Supreme Court precedent, determined that
federal question jurisdiction is properly invoked in private TCPA
claims. 	Brill v. Countrywide Home Loans, Inc., 427 F.3d 446,
450-51 (7th Cir. 2005) (Easterbrook, J., joined by Posner and
Rovner, J.J.). 	The court of appeals for this circuit has yet to
confront the issue.
2
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Conclusion
The motion to dismiss (document no. 10) is denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
March 4, 2010
cc: 	Aytan Y. Bellin, Esq.
Michael J. Sheehan, Esq.
William E. Christie, Esq.
3
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