Two state courts recently addressed the issues of forum shopping and statutes of limitations with regard to claims brought under the Telephone Consumer Protection Act.
In New Jersey, an appellate court ruled that a plaintiff who voluntarily dismissed his state TCPA suit and then re-filed an identical case in federal court did not engage in improper forum shopping.
Nicholas Fitzgerald filed a putative TCPA class action in New Jersey state court. But days later, a state appellate court held that class action suits were inappropriate for adjudicating TCPA claims in New Jersey. He filed a notice of voluntary dismissal the next day, and five days later filed his complaint in New Jersey federal court.
Defendant Gann Law Books, Inc. argued that the plaintiff’s state court complaint should be dismissed with prejudice, a holding that would preclude Fitzgerald from pursuing his claims in federal court. The court should take into account the plaintiff’s “improper motive” of forum shopping, the defendant said.
But the New Jersey appellate court disagreed. Although Gann had filed a motion to dismiss in the state court action, it had failed to serve the motion upon Fitzgerald before he moved to voluntarily dismiss the suit. Therefore, no procedural hurdles prevented granting the plaintiff’s voluntary motion to dismiss, the court said, and consideration of the plaintiff’s motives was unnecessary.
In a separate action, an appellate court in Illinois also found for the plaintiff when addressing the issue of the applicable statute of limitations in a TCPA case.
Although the Illinois’ state counterpart to the TCPA provides for a two-year time limit, plaintiff Wellington Homes contended that the four-year federal “catchall” statute of limitations applies to TCPA cases, regardless of where they are filed.
Over the defendant’s objections, the court agreed.
In the context of supremacy clause jurisprudence – giving proper respect to the TCPA as a federal statute – the court said it must look to federal law to govern the case. Because the TCPA does not provide its own time limit, the court looked to other federal law, specifically 28 U.S.C. §1658(a). Enacted in 1990, this “catchall” statute was intended to govern all federal statutes that did not have their own statutes of limitations, the court explained.
This allows for a uniform application of federal law across the country and limits the practice of “limitations borrowing” from various state statutes.
The court noted that states have split on the issue of how to apply a statute of limitations under the TCPA and chose to follow the majority (decisions from California, Kansas, Maryland, New Jersey, New York, and Ohio). Three states – Connecticut, Nevada, and Texas – have reached the opposite conclusion and applied state time limits to TCPA suits.
“As with any federal law enforced in state court pursuant to the supremacy clause, a federal limitations provision provided by Congress must be applied, absent an unambiguous direction to the contrary,” the court said. “When Congress enacted the TCPA, it was cognizant of the recently enacted [catchall provision] and easily could have provided that 28 U.S.C. §1658(a) would not apply to TCPA claims filed in state court. However, Congress did not do so.”
To read the New Jersey opinion, Fitzgerald v. Gann Law Books, click here.
To read the Illinois opinion, Wellington Homes, Inc. v. West Dundee China Palace Restaurant, click here.
Why it matters: The Illinois court relied upon last year’s U.S. Supreme Court decision in Mims v. Arrow Financial Services, where the justices determined that state and federal courts have concurrent jurisdiction to hear TCPA suits. However, Mims left unanswered the question of whether state or federal statutes of limitations apply to the Act. If the state courts continue to split on the issue – a total of seven states have agreed that the federal catchall provision trumps state law, while three states have decided to apply state law statutes of limitations to the federal law – the justices may be faced with another TCPA case in the future.