Opinion
03 C 50287
October 21, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff, Stonecrafters, Inc. ("Stonecrafters") originally filed a complaint in state court, individually and as the representative for a class of similarly-situated persons, against Defendant CM Systems, Inc. ("CM Systems"). Plaintiffs brought a three-count complaint: Count I claims a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227; Count II is a common law claim for conversion; and Count III is brought pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. On July 11, 2003, CM Systems filed a notice of removal pursuant to 28 U.S.C. § 1441, claiming the action presents a federal question pursuant to 28 U.S.C. § 1331. Before the Court is Plaintiffs Motion to Remand the case to state court for lack of federal question jurisdiction under 28 U.S.C. § 1331.
Removal from state court is permitted only if federal jurisdiction existed at the time of removal. Doe v. Allied-Signal, 985 F.2d 908, 911 (7th Cir. 1993). Federal courts are courts of only limited jurisdiction.See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850), and, as such, there is a general presumption against federal jurisdiction which the party seeking removal must rebut. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Congress has imbued federal courts with "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A suit will generally "arise under" the law that creates the plaintiffs cause of action. See Amer. Well Works v. Layne Bowler Co., 241 U.S. 257, 260 (1916). Thus, if federal law creates a plaintiffs cause of action, § 1331 jurisdiction will generally be present. Murphey v. Lanier, 997 F. Supp. 1348, 1349 (S.D. Cal. 1998). However, if federal law creates a cause of action there also must be a showing that § 1331 jurisdiction has not been preempted by a more specific statutory provision conferring jurisdiction elsewhere.Connors v. Amax Coal Co. Inc., 858 F.2d 1226, 1229-30 (7th Cir. 1988). "Federal-question jurisdiction necessarily depends upon an act of Congress and the corresponding intent of Congress for jurisdiction expressed by statute." Gold Seal Termite Pest Control Co. v. DirecTV. Inc., 2003 U.S. Dist. LEXIS 11205, *8 (S.D. Ind. 2003) citing Int'l Sci., Tech. Inst. v. Inacom Comm. Inc., 106 F.3d 1146, 1153-54 (4th Cir. 1997). Statutes which purport to confer federal jurisdiction are to be construed narrowly, with ambiguities resolved against a finding of federal jurisdiction. Erienet Inc. v. Velocity Net. Inc., 156 F.3d 513, 519 (3d Cir. 1998). Therefore, unless jurisdiction is unambiguously found through a statute which does not preempt § 1331 jurisdiction, there can be no federal question jurisdiction for this Court in this action.
The TCPA provides a private right of action which may be brought "in an appropriate court of that State." 47 U.S.C. § 227(b)(3). This jurisdictional grant by Congress is ambiguous in that, by using the word "may", it has seemingly left open the question as to whether one also may nor bring a cause of action in state court, but rather, bring it in federal court under § 1331 jurisdiction. Of the courts which have addressed the issue, only one District Court has found this permissive statute to allow federal jurisdiction. Kenro, Inc. v. Fax Daily. Inc., 904 F. Supp. 912 (S.D. Ind. 1995) a ff'd on rehearing by 962 F. Supp. 1162 (S.D. Ind. 1997). Six Circuit Courts, however, have come to the contrary conclusion. The Circuits' reasoning has been two-fold: (1) legislative intent which shows Congress did not mean to confer federal jurisdiction for actions under the TCPA, and (2) permissive grants of jurisdiction to courts of general jurisdiction cannot confer jurisdiction on unmentioned courts of limited jurisdiction where a specific jurisdictional grant is required. See e.g., Int'l Sci. Tech. Inst. v. Inacom Comm., 106 F.3d 1146, 1151-52 (4th Cir. 1997). See also Kevin N. Tharp, Federal Court Jurisdiction Over Private TCPA Claims: Why The Federal Courts of Appeal Got It Right, 52 Fed. Comm. L.J. 189 (1999). There is, therefore, no federal question jurisdiction for this action under the TCPA.
Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000); Nicholson v. Hooters of Augusta, 136 F.3d 1287 (11th Cir. 1998); Foxhall Realty L. Off, v. Telecomm. Premium Serv., Ltd, 156 F.3d 432 (2d Cir. 1998);Erienet Inc. v. Velocity Net. Inc., 156 F.3d 513 (3d Cir. 1998); Int'l Sci. Tech. Inst. v. Inacom Comm, 106 F.3d 1146 (4th Cir. 1997): Chair King. Inc. v. Houston Cellular Corp. 131 F.3d 507 (5th Cir. 1997).
Stonecrafters additionally requests, in its motion to remand, just costs and actual expenses, including attorney fees, incurred as a result of improper removal, pursuant to 28 U.S.C. § 1447(0). An award of fees and costs in accordance with 28 U.S.C. § 1447(c) is discretionary, which discretion maybe based upon the propriety of the removal. Katonah v. USAir. Inc., 876 F. Supp. 984, 990 (N.D. Ill. 1995). Since federal question jurisdiction under the TCPA had not yet been addressed by the Seventh Circuit Court of appeals or this Court, removal under the facts of this case are not without such a proper basis as to justify an award of costs and attorney fees. Eisenmann Corp. v. High Tech Automation, 1994 WL 559057 (N.D. Ill. 1994).
For the foregoing reasons, this cause is hereby remanded to the Circuit Court of McHenry County, Illinois and costs and attorney fees relating to the removal are denied.