PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 09-3105, 09-3532 and 09-3793

_____________

LANDSMAN & FUNK PC, 

and all others similarly situated, 

 Appellant in 09-3105

v.

SKINDER-STRAUSS ASSOCIATES,

a New Jersey Partnership

_____________

GOODRICH MANAGEMENT CORP, 

on behalf of itself and all others similarly situated,

 Appellant in 09-3532

v.

AFGO MECHANICAL SERVICES INC

_____________

GOODRICH MANAGEMENT CORP, 

on behalf of itself and all others similarly situated 

v.
2

FLIERWIRE INC

doing business as SCHEIN MEDIA

Goodrich Management Corp,

 Appellant in 09-3793

_____________

Appeals from the United States District Court

for the District of New Jersey

(D.C. Civil Nos. 2-08-cv-03610, 

2-09-cv-00043, and 2-08-cv-05818)

District Judges: Honorable Katharine Hayden,

Honorable William J. Martini, and

Honorable Peter G. Sheridan

_____________

Argued May 26, 2010

Before: McKEE, Chief Judge, RENDELL 

and GARTH, Circuit Judges.

(Opinion Filed April 4, 2011)

_____________

Aytan Y. Bellin, Esq. [ARGUED]

Bellin & Associates

85 Miles Avenue

White Plains, NY 10606

 Counsel for Appellants
3

Michael R. McDonald, Esq. [ARGUED]

Damian V. Santomauro, Esq.

Gibbons

One Gateway Center

Newark, NJ 07102-5310

 Counsel for Appellee

 Skinder Strauss Associates, 

 a New Jersey Partnership

Louis A. Bove, I, Esq.

Jay M. Green, Esq. [ARGUED]

Bodell, Bove Grace & Van Horn

30 South 15th Street

One Penn Square West, 6th Floor

Philadelphia, PA 19102

Kristin Hitsous, Esq.

Rosabianca & Associates

14 Wall Street, 20th Floor

New York, NY 10005

 Counsel for Appellee

 Afgo Mechanical Services Inc.

David J. Bloch, Esq. [ARGUED]

L‘Abbate, Balkan, Colavita & Contini

7 Regent Street

Suite 711

Livingston, NJ 07039

 Counsel for Appellee

 Flierwire Inc, doing business

 as SCHEIN MEDIA
4

_____________

OPINION OF THE COURT

_____________

RENDELL, Circuit Judge.

A.

This consolidated appeal encompasses three class 

actions brought in the District Court for the District of New 

Jersey under the Telephone Consumer Protection Act 

(―TCPA‖), 47 U.S.C. § 227(b). The TCPA is a unique 

federal statute that provides a private right of action for 

recipients of unsolicited facsimiles, as well as statutory 

damages of $500 per ―violation.‖ The plaintiffs in these suits

alleged that each respective defendant sent over 10,000 

unsolicited fax advertisements to plaintiffs at their New York 

or New Jersey offices, and to thousands of others throughout 

the country, in violation of the TCPA.1 The plaintiffs in each 

 

1

In each of the cases, the plaintiffs sought to represent three 

classes: Class A, consisting of all persons in the United 

States to whom defendant sent or caused to be sent a fax 

advertisement without the recipient‘s express invitation or 

permission between four years before the filing of the 

complaint through July 8, 2005; Class B, consisting of all 

persons to whom defendant sent or caused to be sent a fax 

advertisement, which did not contain a notice as required by 

47 U.S.C. § 227(b)(2)(D), between July 9, 2005 through July 

30, 2006; and Class C, consisting of all persons to whom 

defendant sent or caused to be sent a fax, which did not 

contain a notice as required by 47 C.F.R. § 64.1200(a)(3)(iii), 

between August 1, 2006 through the present.
5

case requested more than $5 million in damages for 

themselves and the members of the classes they represented. 

All three cases were dismissed by the District Courts on the 

grounds that plaintiffs‘ claims did not fulfill the requirements 

of diversity jurisdiction.

2

 Although the District Courts‘

specific reasons for dismissal varied slightly, a common 

question arises in our review of each of the cases: whether, 

notwithstanding our ruling in ErieNet, Inc. v. Velocity Net, 

 

2

In Landsman & Funk, P.C. v. Skinder-Strauss Associates, 

636 F. Supp. 2d 359 (D.N.J. 2009), the District Court 

dismissed plaintiffs‘ complaint under Rule 12(b)(1) of the 

Federal Rules of Civil Procedure for lack of jurisdiction; it 

held that it lacked federal question jurisdiction under ErieNet

and diversity jurisdiction because, under New York law, 

plaintiffs cannot bring class actions for statutory damages 

and, thus, the plaintiffs here could not satisfy the $5 million 

amount-in-controversy requirement under the Class Action 

Fairness Act (―CAFA‖). In Goodrich Management Corp. v. 

Afgo Mechanical Services, Inc., No. 09-00043, 2009 WL 

2602200 (D.N.J. Aug. 24, 2009), the District Court dismissed 

plaintiffs‘ complaint under Rule 12(b)(1) and Rule 12(b)(6); 

it found that it lacked federal question jurisdiction under 

ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir. 

1998), and determined that, since plaintiffs could not show 

that they were entitled to Rule 23 class certification, it lacked 

diversity jurisdiction because CAFA‘s amount-in-controversy 

requirement could not be met. The Goodrich Management 

Corp. v. Flierwire, Inc. Court dismissed the case for lack of 

subject matter jurisdiction pursuant to Rule 12(h)(3) based 

entirely on the reasoning in Landsman and Afgo. No. 08-

5818, 2009 WL 3029758 (D.N.J. Sept. 22, 2009). 
6

Inc., 156 F.3d 513 (3d Cir. 1998), that private TCPA claims 

do not present a federal question, the federal courts can 

exercise diversity jurisdiction over private suits brought under 

the TCPA. On appeal, appellees contend that the three 

District Courts that ruled on the issue of jurisdiction erred

because none held – as they should have – that there can be 

no diversity jurisdiction over claims under the TCPA.3 

Because this argument, if adopted, would be dispositive of all 

three cases – in that dismissal would be appropriate in each 

case if it is correct – we address this issue before considering 

other issues raised as to the propriety of the District Courts‘ 

rulings in each case. 

In ErieNet, we held that Congress intended to divest 

federal courts of federal question jurisdiction over individual 

TCPA claims. We are now called upon to decide whether our 

reasoning in ErieNet extends to diversity jurisdiction. That is, 

did Congress intend that these actions should be maintained 

exclusively in state courts such that federal courts cannot 

exercise diversity jurisdiction over them? We hold here that 

Congress did not intend for exclusive state court jurisdiction. 

The TCPA does not strip federal courts of diversity 

jurisdiction over actions brought under § 227(b)(3). Given 

 

3

Though this is not the focus of appellees‘ argument, it is 

always our duty to assure ourselves of the existence of subject 

matter jurisdiction. Keefe v. Prudential Prop. & Cas. Ins. 

Co., 203 F.3d 218, 223 (3d Cir. 2000). See also Bender v. 

Wiliamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) 

(―[E]very federal appellate court has a special obligation to 

 ̳satisfy itself not only of its own jurisdiction, but also that of 

the lower courts in a cause under review.‘‖ (internal citations 

omitted)). 
7

our ruling that each District Court has jurisdiction over its 

respective plaintiffs‘ private TCPA class action claims 

pursuant to 28 U.S.C. § 1332(d), we also must address the 

Courts‘ class certification determinations, as discussed more 

fully below. 

We have jurisdiction under 28 U.S.C. § 1291 to review 

the District Courts‘ orders dismissing these cases for lack of 

subject matter jurisdiction. We exercise plenary review of a 

district court‘s § 12(b)(1) dismissal for lack of jurisdiction 

and a district court‘s § 12(b)(6) dismissal for failure to state a 

claim. McGovern v. City of Phila., 554 F.3d 114, 115 (3d 

Cir. 2009); Angelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d 

Cir. 1999). We also exercise plenary review of a district 

court‘s resulting jurisdictional determination. Umland v. 

PLANCO Fin. Serv., 542 F.3d 59, 63 (3d Cir. 2008). We 

review a decision to certify or deny a class for abuse of 

discretion. Holmes v. Pension Plan of Bethlehem Steel Corp., 

213 F.3d 124, 136 (3d Cir. 2000) (citing In re Prudential Ins. 

Co. of Am. Sales Litig., 148 F.3d 283, 299 (3d Cir. 1998)). 

B.

The TCPA, which was passed in 1991 as part of an 

amendment to the Communications Act of 1934, declares it 

unlawful under federal law ―to use any telephone facsimile 

machine, computer, or other device to send, to a telephone 

facsimile machine, an unsolicited advertisement,‖ unless 

certain statutory exceptions apply. 47 U.S.C. § 227(b)(1)(C). 

It contains distinct provisions for private parties on the one 

hand, and state attorneys general on the other, to enforce this 

prohibition by litigation. § 227(b)(3), (f). Section 227(b)(3), 

entitled ―Private right of action,‖ provides that: 
8

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 or the regulations 

prescribed under 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. 

If the court finds that the defendant 

willfully or knowingly violated this 

subsection or the regulations prescribed 

under this subsection, the court may, in 

its discretion, increase the amount of 

the award to an amount equal to not 

more than 3 times the amount available 

under subparagraph (B) of this 

paragraph. 

47 U.S.C. § 227(b)(3). Thus, this private right of action 

allows a person, ―if otherwise permitted by the laws or rules 

of court of a State, [to] bring in an appropriate court of that 

State‖ a private action for damages or injunctive relief, and 

entitles a successful plaintiff to recover damages of at least

$500 per unsolicited fax. Another provision, whereby state 
9

attorneys general can bring civil actions for damages and 

injunctive relief, provides that the federal courts ―shall have 

exclusive jurisdiction‖ over all such actions. § 227(f)(1), (2). 

It also provides that the TCPA does not prevent state officials 

from bringing similar actions in state court or otherwise 

exercising their powers under state law. § 227(f)(5), (6).

In enacting this legislation, Congress explained that it 

sought ―to facilitate interstate commerce by restricting certain 

uses of facsimile ([f]ax) machines and automatic dialers.‖ S. 

Rep. No. 102-178, at 1 (1991), reprinted in 1991 

U.S.S.C.A.N. 1968, 1968. It noted that ―unsolicited calls 

placed to fax machines . . . often impose a cost on the called 

party (fax messages require the called party to pay for the 

paper used . . . ).‖ Id. at 1969. In addition, a so-called ―junk 

fax‖ ―occupies the recipient‘s facsimile machine so that it is 

unavailable for legitimate business messages while 

processing and printing the junk fax.‖ H.R. Rep. No. 102-

317, at 10 (1991). Congress also noted the need for federal 

regulation to fill the gaps between individual states‘ 

regulatory efforts, since ―[s]tates do not have the jurisdiction 

to protect their citizens against those who use [automated 

dialing] machines to place interstate telephone calls.‖ S. Rep. 

No. 102-178, at 5. That is, although ―[m]any States have 

passed laws that seek to regulate telemarketing,‖ 

―telemarketers can easily avoid the restrictions of State law, 

simply by locating their phone centers out of state.‖ H.R. 

Rep. No. 102-317, at 9-1. This history suggests that Congress 

intended both to ―fill the gaps‖ in state regulation and to give 

consumers the right to file TCPA actions in state court. The 

TCPA, and its private right of action, were thus designed to 

put ―teeth‖ into state regulation, rather than to establish a 

distinctly federal policy. Essentially, Congress ―sought to put 
10

the TCPA on the same footing as state law . . . , 

supplementing state law where there were perceived 

jurisdictional gaps.‖ Gottlieb v. Carnival Corp., 436 F.3d 

335, 342 (2d Cir. 2006). 

In introducing the bill, its sponsor, Senator Ernest 

Hollings, described the private right of action as follows:

The . . . bill contains a private 

right-of-action provision that will 

make it easier for consumers to 

recover damages from receiving 

these computerized calls. The 

provision would allow consumers 

to bring an action in State court 

against any entity that violates the 

bill. The bill does not, because of 

constitutional constraints, dictate 

to the States which court in each 

State shall be the proper venue for 

such an action, as this is a matter 

for State legislators to determine. 

Nevertheless, it is my hope that 

States will make it as easy as 

possible for consumers to bring 

such actions, preferably in small 

claims court. The consumer 

outrage at receiving these calls is 

clear. Unless Congress makes it

easier for consumers to obtain 

damages from those who violate 

this bill, these abuses will 

undoubtedly continue.
11

Small claims court or a 

similar court would allow the 

consumer to appear before the 

court without an attorney. The 

amount of damages in this 

legislation is set to be fair to both 

the consumer and the 

telemarketer. However, it would 

defeat the purposes of the bill if 

the attorneys‘ costs to consumers 

of bringing an action were greater 

than the potential damages. I thus 

expect that the States will act 

reasonably in permitting their 

citizens to go to court to enforce 

this bill.

137 Cong. Rec. S16204 (daily ed. Nov. 7, 1991) (statement of 

Sen. Hollings).

C.

The TCPA ―presents an unusual constellation of 

statutory features‖: ―the express creation of a private right of 

action, an express jurisdictional grant to state courts to 

entertain them, and silence as to federal court jurisdiction of 

private actions.‖ Chair King, Inc. v. Houston Cellular Corp., 

131 F.3d 507, 512 (5th Cir. 1997). As noted above, we 

concluded in ErieNet that, based on the language, structure, 

and legislative history of the statute, there is no federal 

question jurisdiction over private actions brought under the 

TCPA. 156 F.3d at 516-19. In ErieNet, we interpreted the 

permissive language of § 227(b)(3) providing that a person 

―may‖ bring an action in state court to suggest that ―Congress 
12

intended to authorize private causes of action only in state 

courts, and to withhold federal [question] jurisdiction.‖ Id. at 

516 (emphasis in original). We focused on the distinction 

between the general jurisdiction of state courts and the limited 

jurisdiction of federal courts. See id. (―[T]here is no 

presumption of jurisdiction in the federal courts.‖). It was 

significant, we said, that the statute‘s permissive authorization 

referred only to state courts of general jurisdiction; ― ̳that 

authorization cannot confer jurisdiction on a federal court 

because federal courts are competent to hear only those cases 

specifically authorized.‘‖ Id. (quoting Int’l Sci. & Tech. Inst., 

Inc. v. Inacom Commc’ns, Inc., 106 F.3d 1146, 1151 (4th Cir. 

1997)). We noted that subject matter jurisdiction must be 

conferred by statute and that the TCPA did not expressly do 

that. Id.

The majority of courts of appeals to consider the 

question have similarly concluded that federal courts lack 

federal question jurisdiction over private TCPA claims. 

Citing § 227(b)(3)‘s explicit authorization of jurisdiction over 

private actions in state courts and the absence of any

reference to federal court, these courts have concluded that 

Congress did not intend to grant the federal courts federal 

question jurisdiction over private TCPA claims. See Murphey 

v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000); Foxhall Realty 

Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 

F.3d 432, 435 (2d Cir. 1998); Nicholson v. Hooters of 

Augusta, Inc., 135 F.3d 1287, 1289 (11th Cir. 1998); Chair 

King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th 

Cir. 1997); Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, 

Inc., 106 F.3d 1146, 1156 (4th Cir. 1997). Only two

courts of appeals have held otherwise. See Charvat v. 

EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010) 
13

(finding federal question jurisdiction under the TCPA based 

on § 227(f)(2)‘s explicit provision for exclusive federal 

jurisdiction, 28 U.S.C. § 1441(a)‘s authorization of removal 

to federal court unless expressly provided by Congress, and 

on its reading of Grable & Sons Metal Products, Inc. v. 

Darue Engineering & Manufacturing, 545 U.S. 308 (2005)); 

Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51 

(7th Cir. 2005) (similarly finding federal question jurisdiction 

under the TCPA based on § 227(f)(2) and Grable). 

Though we addressed federal question jurisdiction 

extensively in ErieNet, we had no occasion to consider 

whether there can be diversity jurisdiction over TCPA 

claims.4 156 F.3d at 520. The issue presently before us is 

 

4We acknowledge that ErieNet referred, somewhat 

imprecisely, to ―federal court jurisdiction‖ and ―federal 

jurisdiction.‖ However, notwithstanding Judge Garth‘s view, 

our analysis and holding were limited to federal question 

jurisdiction. Our opinion in ErieNet begins by referring to ―a 

district court‘s federal question jurisdiction‖ and Article III‘s 

authorization of ―arising under‖ (i.e., federal question) 

jurisdiction, and then refers repeatedly to jurisdiction under 

28 U.S.C. § 1331. 156 F.3d at 515, 518-20. By contrast, 

neither diversity jurisdiction nor the statute that authorizes it, 

28 U.S.C. § 1332, is mentioned in the opinion at all. See 

Watson v. NCO Grp., Inc., 462 F. Supp. 2d 641, 646 n.2 (E.D. 

Pa. 2006) (―[O]riginal jurisdiction pursuant to sections 1331 

and 1337 were the only types of jurisdiction at issue in 

ErieNet. The court did not discuss the effects of its holding 

on supplemental or diversity jurisdiction.‖) (internal citation 

omitted)). Nor do the other Courts of Appeals cases finding 

that federal courts lack § 1331 jurisdiction under the TCPA 
14

whether diversity jurisdiction exists in the federal courts, 

notwithstanding our conclusion in ErieNet that Congress 

intended for private litigants to seek recourse in state courts 

for TCPA violations. In ErieNet we asked whether Congress 

conferred subject-matter jurisdiction in the TCPA;

5

here we 

ask whether Congress intended state courts to have exclusive 

jurisdiction over TCPA claims and, thus, stripped away

diversity jurisdiction. For the reasons set forth below, we 

hold that Congress did not divest the federal courts of 

diversity jurisdiction over private causes of action under the 

 

compel the conclusion that they also lack diversity 

jurisdiction. See Accounting Outsourcing, LLC v. Verizon 

Wireless Pers. Commc’ns, LP, 294 F. Supp. 2d 834, 839-40 

(M.D. La. 2003) (―Nothing in the reasoning of any of the 

courts‘ [§1331 TCPA] opinions, however, suggests it would 

be logical to extend that reasoning to diversity jurisdiction.‖).

5Our references to ―exclusivity‖ of jurisdiction and 

jurisdiction ―only‖ in state courts in ErieNet must, as thenJudge (now Justice) Sotomayor stated about similar 

references in Foxhall, ―be read in context.‖ Gottlieb, 436 

F.3d at 337. ErieNet addressed only federal question 

jurisdiction, not diversity jurisdiction, so our references to 

―exclusive‖ state jurisdiction there must be read to describe 

only ―exclusive substance-based jurisdiction‖ over TCPA 

claims in the state courts, not truly exclusive state court 

jurisdiction. Notwithstanding Judge Garth‘s reference to 

Congress‘s having ―provided‖ and ―decreed‖ that ―all‖ cases 

be brought ―only‖ in state court, the TCPA does not so state. 

(If it did, I would share Judge Garth‘s view on the issue 

before us). 
15

TCPA. Finding that we have diversity jurisdiction over 

TCPA claims does not disturb the concepts we set down in 

ErieNet; the TCPA has neither divested federal courts of 

diversity jurisdiction over private causes of action nor 

conferred on them federal question jurisdiction.6 

 

6Chief Judge McKee takes issue with our opinion in ErieNet, 

urging that three recent Supreme Court opinions have 

undermined the reasoning and result in that case. ErieNet is a 

precedential opinion of our Court that is not before us on this 

appeal. Even if it were, however, the Supreme Court cases 

referred to did not involve a federal statute that set forth a 

private right of action for litigants to proceed in state court. 

The statute in Verizon Maryland, Inc. v. Public Service 

Commission of Maryland, 535 U.S. 635, 641 (2002), the 

Telecommunications Act of 1996, explicitly provided that an 

action could be brought ―in an appropriate Federal district 

court,‖ and in Breuer v. Jim’s Concrete of Brevard, 538 U.S. 

691 (2003), the statute at issue provided that an action to 

recover liability may be maintained ― ̳in any federal or state 

court of competent jurisdiction.‘‖ Id. at 693 (quoting 29 

U.S.C. § 216(b)). Unlike the TCPA, neither statute evinces 

any congressional intent to keep causes of action in state 

court in the absence in diversity. Neither statute specifically 

directs private rights of action to state court. Finally, in 

Whitman v. Department of Transportation, 547 U.S. 512 

(2006) (per curiam), the Court noted that the district court, in 

considering the question of whether it has jurisdiction under 5 

U.S.C. § 7121, should look to the statute itself and the overall 

Act in which it appears to discern whether Congress intended 

for jurisdiction to lie elsewhere. Id. at 513-14. In Erienet, we 

did exactly that and found that the TCPA removed the 
16

D.

Here, the specific provision granting subject matter 

jurisdiction to the federal courts is 28 U.S.C. § 1332(d), an 

amendment added to § 1332 pursuant to the Class Action 

Fairness Act (―CAFA‖) of 2005. Under CAFA, federal 

courts have original jurisdiction over class actions where 

there is minimal diversity and the aggregate amount in 

controversy exceeds $5 million, exclusive of interests and 

costs. §1332(d)(2), (6). In each of these cases, minimal 

diversity is present and, given defendants‘ alleged 

transmission of over 10,000 unsolicited faxes and the 

possibility of treble damages under the TCPA, the aggregate 

amount in controversy exceeds $5 million CAFA requires. 

Thus, in light of our ruling that federal courts can exercise 

diversity jurisdiction over TCPA claims when the 

requirements of diversity are otherwise fulfilled, the New 

Jersey District Courts here had subject-matter jurisdiction 

under § 1332(d). 

In holding that there is diversity jurisdiction under the 

TCPA, we rely heavily on then-Judge (now Justice) 

Sotomayor‘s opinion in Gottlieb v. Carnival Corp., where the 

Second Circuit persuasively applied two canons of statutory 

interpretation to the TCPA – the ―whole act rule,‖ which 

instructs that parts of a statute should be placed in the context

of the entire statutory scheme and the principle that reliance 

on background principles of law inform a statute‘s 

interpretation – to conclude that federal courts should have 

diversity jurisdiction over § 227(b)(3) claims. 436 F.3d at 

 

jurisdiction that § 1331 often confers on federally created 

causes of action. Accordingly, these cases are inapposite. 
17

338-343. Though we do not adopt Gottlieb‘s reasoning 

wholesale, we note the soundness of the Second Circuit‘s 

approach and draw on it considerably. 

Our starting point is the historic grant of diversity 

jurisdiction to the federal courts, first under the Judiciary Act 

of 1789, then as codified at 18 U.S.C. § 1332. As did the

Gottlieb court, we understand § 1332 as ―an independent 

grant of federal jurisdiction intended to prevent 

discrimination against non-citizen parties regardless of 

whether state or federal substantive law is involved.‖ 437 

F.3d at 340. As such, diversity jurisdiction is ―presumed to 

exist for all causes of action so long as the statutory 

requirements are satisfied.‖ Id. Indeed, the language of § 

1332 provides that district courts ―shall have jurisdiction of 

all civil actions where‖ the matter in controversy exceeds 

$75,000 and where the parties are diverse. 18 U.S.C. § 1332 

(emphasis added). Federal courts only lack diversity 

jurisdiction where Congress has explicitly expressed an intent 

to strip federal courts of this jurisdiction, Gottlieb, 436 F.3d at 

338, or where such jurisdiction is found to be irreconcilable 

with a congressional statute. U.S. Fax Law Ctr., Inc. v. iHire, 

Inc., 476 F.3d 1112, 1117 (10th Cir. 2007) (citing Colo. River

Water Conserv. Dist. v. United States, 424 U.S. 800, 808

(1976)). See also id. at 1117 (―[A]bsent an explicit indication 

that Congress intended to create an exception to diversity 

jurisdiction, one may not be created by implication.‖) (citing 

Ankenbrandt v. Richards, 504 U.S. 689, 700 (1992)). 

It is useful to begin with the origins of the two 

traditional bases for subject matter jurisdiction. Federal 

courts did not have general federal question jurisdiction until 

1875. Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S. 261 

(1997). Before then, federal courts had jurisdiction over 
18

substantive law claims either when the federal statute sought 

to be enforced contained a specific grant of federal court 

jurisdiction or when diversity of citizenship was present. 

Diversity jurisdiction, by contrast, was ―expressly 

contemplated by Article III of the United States Constitution‖

and has provided a jurisdictional basis for entry into the 

federal courts since the very inception of our judicial system 

in the Judiciary Act of 1789. Kopff v. World Research Grp., 

LLC, 298 F. Supp. 2d 50, 55 (D.D.C. 2003). See also Hertz 

Corp. v. Friend, --- U.S. ---, 130 S. Ct. 1181, 1188 (2010)

(noting the First Judiciary‘s Act‘s grant of authority to federal 

courts to hear suits ― ̳between a citizen of the State where the 

suit is brought, and a citizen of another State‘‖) (quoting § 11, 

1 Stat. 78)). 

Today, diversity jurisdiction is ―based on a grant of 

jurisdictional authority from Congress‖ in the form of 28 

U.S.C. § 1332. U.S. Fax Law Ctr., 476 F.3d at 1117 (citing 

Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 

171 (1939)). ―As to diversity cases, Congress has given the 

federal courts cognizance, concurrent with the courts of the 

several states. [A party‘s] consent [to be sued in the courts of 

a state], therefore, extends to any court sitting in the state 

which applies the laws of the state.‖ Id. (internal citations 

and quotation marks omitted) (emphasis added). Diversity 

jurisdiction‘s purpose – of ―prevent[ing] apprehended 

discrimination in state courts against those not citizens of the 

state,‖ Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938) –

exists independently of other considerations like the subject 

matter of the lawsuit or the nature of the law under which the 

suit is filed. See Accounting Outsourcing, 294 F. Supp. 2d at 

838 (―[N]o matter how one may label the diversity statute, it 

exists for an independent and important reason, unrelated to 
19

the subject matter of the lawsuit.‖). Indeed, the 

―presupposition of diversity jurisdiction,‖ a concern with 

local bias, is usually not affected by other aspects of the cause 

of action. Jerome G. Grubart, Inc. v. Great Lakes Dredge & 

Dock Co., 513 U.S. 527, 546 n.6 (1995). Consequently, as a 

general matter, where parties are diverse and the amount in 

controversy meets the statutory bar, § 1332 operates as a 

threshold grant of jurisdiction.7 Other bases for federal 

jurisdiction may be expressly or impliedly proscribed, but 

such proscriptions are typically responsive to concerns that 

are either irrelevant or outweighed when the requirements for

diversity jurisdiction are met. 

Courts have long recognized the presumption of 

diversity jurisdiction regardless of the type of law under 

which a lawsuit arises. In Dodge v. Woolsey, 59 U.S. 331 

(1855), for example, plaintiff, a Connecticut citizen and an 

investor in an Ohio corporation, sued, among others, an Ohio 

tax collector who was trying to collect taxes from the 

corporation. Plaintiff claimed that the taxes, which resulted 

 

7

Perhaps due to the mechanical nature of diversity 

jurisdiction‘s requirements, commentators have noted that, 

even after federal question jurisdiction was codified, litigants 

relied on diversity jurisdiction as a basis for entering federal 

court even where federal question jurisdiction existed. See

Ann Woolhandler, The Common Law Origins of 

Constitutionally Compelled Remedies, 107 Yale L.J. 77, 85, 

134 (1997) (―In seeking injunctions against taxes alleged to 

violate the Constitution, federal court litigants continued to 

rely heavily on diversity jurisdiction well into th[e] 

[twentieth] century, long after the federal question statute had 

become available.‖).
20

from the passage of a new state law and state constitution in 

Ohio, violated the Contracts Clause of the U.S. Constitution 

because they abrogated the terms of the corporate charter the 

corporation had received from Ohio. Id. at 335-40. Today, 

this claim would fall squarely under a federal court‘s federal 

question jurisdiction, but the Court‘s emphasis here was on 

the jurisdictional baseline that existed by virtue of the parties‘ 

diversity of citizenship. The Court rejected defendant‘s 

argument that the suit was within the exclusive jurisdiction of 

the state courts and noted ―that the courts of the United States 

and the courts of the States have concurrent jurisdiction in all 

cases between citizens of different States, whatever may be 

the matter in controversy, if it be one for judicial cognizance . 

. . and that it is no objection to this jurisdiction, that there is a 

remedy under the local law.‖ Id. at 347 (emphasis added). It 

is the parties being from different states, not the subject 

matter, that is determinative. 

The presumptive existence of federal courts‘ diversity 

jurisdiction over all causes of action that meet § 1332‘s 

requirements is bolstered by the ―well-established principle of 

statutory construction that repeal or amendment by 

implication is disfavored.‖ Gottlieb, 436 F.3d 335 (citing 

Colo. River, 424 U.S. at 808; Rosencrans v. United States, 

165 U.S. 257, 262 (1897)). As the Supreme Court has 

emphasized, ―[w]hen there are statutes,‖ like § 1332, ―clearly 

defining the jurisdiction of the courts, the force and effect of 

such provisions should not be disturbed by a mere 

implication.‖ 165 U.S. at 262. See also Kopff, 298 F. Supp. 

2d at 55 (―A federal court‘s original jurisdiction in diversity 

cases is not subject to implied exceptions.‖). In Colorado

River, the Supreme Court stated that, ―[i]n the absence of 

some affirmative showing of an intent to repeal, the only 
21

permissible justification for a repeal by implication is when 

the earlier and later statutes are irreconcilable.‖ 424 U.S. at 

808. Clearly, § 227(b)(3) does not evince an intent to repeal 

§ 1332 and is in no way irreconcilable with § 1332. 

Federal question jurisdiction, by contrast, lacks 

diversity jurisdiction‘s expansive nature and straightforward

applicability. Where a federal question clearly exists, district 

courts have original jurisdiction unless a specific statute 

places jurisdiction elsewhere, U.S. Fax Law Ctr., 476 F.3d at 

1117 (citing Int’l Sci., 106 F.3d at 1154), and if a federal 

question is not as clearly presented, determining whether 

―arising under‖ jurisdiction exists requires a multi-factorial 

analysis of how federal the claim really is; the process is more 

nuanced than the easily applied two-factor test for diversity 

jurisdiction, and the purposes served by allowing access to 

the federal courts under each statute are quite distinct. As the 

Fifth Circuit explained in finding that federal courts lack 

federal question jurisdiction under the TCPA, ―[t]here is no 

 ̳single, precise definition‘ of when a case falls within the 

original  ̳federal question‘ jurisdiction of federal courts; 

 ̳rather, the phrase ―arising under‖ masks a welter of issues 

regarding the interpretation of federal and state authority and 

proper management of the federal jurisdictional system.‘‖ 

Chair King, 131 F.3d at 510 (quoting Merrell Dow Pharms.

v. Thompson, 478 U.S. 804, 808 (1986) (internal citations 

omitted)).8 Assessing whether a federal court has diversity 

 

8

Indeed, § 1331‘s ―all civil actions arising under‖ language 

has been interpreted to ensure that only cases ―in which a 

well-pleaded complaint establishes either [1] that federal law 

creates the cause of action or [2] that the plaintiff‘s right to 

relief necessarily depends on resolution of a substantial 
22

jurisdiction generally avoids such thorny analysis. Thus, 

collapsing federal question and diversity jurisdiction together 

in the context of the TCPA ignores the meaningful difference 

between federal question jurisdiction, a constrained basis for 

jurisdiction that applies in a ―narrow class‖ of federallyoriented cases, and diversity jurisdiction, which has 

traditionally been open to claims based on any cause of action 

out of concern for avoiding bias against out-of-state parties.9 

 

question of federal law‖ come into federal court under the 

court‘s federal question jurisdiction. Franchise Tax Bd. v. 

Constr. Laborers Vacation Trust, 463 U.S. 1, 28 (1983). The 

federal question statute has not been read to confer upon 

federal courts ―the full breadth‖ of federal question 

jurisdiction but instead has ―been construed more narrowly 

than its constitutional counterpart.‖ Chair King, 1311 F.3d at 

510 (citing Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 

480, 494-95 (1983)); Romero v. Int’l Terminal Operating Co., 

358 U.S. 354, 379-80 (1959)). By contrast, § 1332(a)‘s ―all 

civil actions where‖ language has, in the absence of a specific 

directive otherwise, been interpreted to mean just what it 

says: when the conditions following ―where‖ – sufficient 

amount in controversy and diversity of citizenship – are met, 

the suit can come into federal court.

9

In Brill, the Seventh Circuit, in dicta, conflated the two 

traditional bases for jurisdiction without explanation or 

citation – ―if state jurisdiction really is  ̳exclusive,‘ then it 

knocks out § 1332 as well as § 1331.‖ 427 F.3d at 450. This 

is the only instance where a Court of Appeals, albeit without 

providing any reasoning, has concluded that the existence or 

absence of federal question jurisdiction under the TCPA 
23

Bryan v. BellSouth Commc’n, Inc., 377 F.3d 424, 434 (4th 

Cir. 2004). 

Nor does the fact that the TCPA is a federally created

cause of action compel us to put diversity jurisdiction and 

federal question jurisdiction under the TCPA on equal 

footing. Though it is indeed ―rare [for a] federal statute . . . 

[to] create[] a cause of action that gives rise to jurisdiction 

under § 1332, but not under § 1331,‖ Gottlieb, 436 F.3d at 

342 n.8, it is not logically inconsistent. First, diversity 

jurisdiction is not by its statutory terms limited to state-law 

claims. As Judge Sotomayor observed in Gottlieb, ―nothing 

in § 1332 indicates that diversity jurisdiction does not exist 

where federally-created causes of action are concerned.‖ 436 

F.3d at 335.10 Moreover, in the instances where federal 

 

dictates the same for diversity jurisdiction. For the reasons 

discussed herein, we reject this conclusion. 

10A federal court‘s exercise of diversity jurisdiction over a 

federally-created cause of action will put the court in the 

―odd‖ position of ―apply[ing] federal substantive and

procedural law,‖ Gottlieb, 436 F.3d at 342 n.8 (emphasis 

added). This in no way suggests that diversity jurisdiction is 

improper; it merely ―emphasizes the sui generis nature of the 

[TCPA].‖ Id. The Sixth Circuit has also recognized and 

approved of this departure from Erie‘s directive to apply state 

substantive law and federal procedural law in diversity cases 

– a directive that is only applicable where state law causes of 

action are at issue. See Charvat v. GVN Mich., Inc., 561 F.3d 

623, 630 n.6 (6th Cir. 2009). In Charvat, the Sixth Circuit 

rejected the district court‘s application of Ohio law in 

interpreting the federal TCPA and explained that, although 
24

statutes do not give rise to § 1331 jurisdiction, there is no 

indication that the rationale behind the absence of federal 

question jurisdiction also wipes out diversity jurisdiction. 

 Though the ―vast majority‖ of cases that fall under § 

1331 are ―described by Justice Holmes‘ adage that  ̳a suit 

arises under the law that creates the cause of action,‘‖ Merrell 

Dow, 478 U.S. at 819 (quoting Am. Well Works Co v. Layne 

& Bowler Co., 241 U.S. 257, 260 (1916)), it is not the case 

that every private cause of action under a federal statute 

begets federal question jurisdiction. Rather, ―[i]nferior 

federal courts‘  ̳federal question‘ jurisdiction ultimately 

depends on Congress‘s intent as manifested by the federal 

statute creating the cause of action.‖ Chair King, 131 F.3d at 

510 (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 448 

(1850)). See also Int’l Sci., 106 F.3d at 1154 (―Because 

federal-question jurisdiction ultimately depends on an act of 

Congress, the scope of the district courts‘ jurisdiction depends 

on that congressional intent manifested in [the] statute.‖). 

 

federal courts sitting in diversity usually ―apply state 

substantive law to state-law claims, this case presents a very 

different situation, because the statute on which the claims are 

based is itself a federal statute. As we have noted,  ̳the 

applicability of state law depends on the nature of the issue 

before the federal court and not on the basis for its 

jurisdiction.‘‖ Id. (quoting Gentek Bldg. Prods., Inc. v. 

Sherwin-Williams Co., 491 F.3d 320, 333-34 (6th Cir. 2007)

(internal quotation omitted)). Because the issue before it was 

―the interpretation of a federal statute,‖ the Charvat court 

reasoned that it was ―not bound by decisions of the state 

courts of Ohio interpreting the federal TCPA.‖ Id. (citing 

Gottlieb, 436 F.3d at 348 n.8).
25

Indeed, as our focus in ErieNet demonstrates, congressional 

intent is a touchstone of federal question jurisdiction analysis. 

See Merrell Dow, 478 U.S. at 812 (noting that it has

―consistently emphasized, in exploring the outer reaches of § 

1331,‖ that the determination of whether federal question 

jurisdiction exists over nonfederal causes of action ―require[s] 

sensitive judgments about congressional intent, judicial 

power, and the federal system‖). With diversity jurisdiction, 

however, unless Congress has been explicit in mandating 

exclusive state court jurisdiction or in precluding diversity 

jurisdiction, congressional intent is largely irrelevant to 

determining whether a federal court has diversity jurisdiction 

over a given cause of action. 

Suits authorized by the federal statute at issue in 

Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900), present 

an example of causes of action which, though created by 

federal law, do not fall under federal courts‘ federal question 

jurisdiction. In Shoshone, the Court considered whether a 

federal statute expressly authorizing ―adverse suits‖ to 

determine title to land established federal question 

jurisdiction. Id. at 506. The statute provided that claims were 

to be determined ―by local customs or rules of miners in the 

several mining districts, so far as the same are applicable and 

not inconsistent with the laws of the United States; or by the 

statute of limitations for mining claims of the State or 

Territory where the same may be situated.‖ Id. at 508. The 

mere fact that a suit ―takes its origin in the laws of the United 

States‖ does not, the Court reasoned, necessarily make it ―one 

arising under the Constitution or laws of the United States,‖ 

lest virtually every dispute over title to land ―in the newer 
26

States‖ raise a federal question. Id. at 507.11 Accordingly, 

the Court held that the federal cause of action created by the 

mining statute did not confer federal question jurisdiction 

over claims that turned entirely on state law. Id. 

However, in noting the ―conceded fact that, unless the 

amount in controversy is over $2,000, no jurisdiction attaches 

to the Federal court,‖ id. at 511, the Court suggested that 

federal courts could exercise diversity jurisdiction over claims 

brought under the mining statute. Indeed, in International

Science, the Fourth Circuit pointed to Shoshone as an 

example of a case where the Court found that, 

―notwithstanding the federal statutory basis, Congress 

intended that because of the predominance of state issues that 

cases be litigated in state courts unless there was diversity of 

citizenship.‖ 106 F.3d at 1154 (emphasis added). Even in 

Shoshone, where the statute at issue dealt with subject matter 

of the most local variety, land title, and specifically required 

the application of local laws and rules,12 it was not interpreted 

 

11See also Shultis v. McDougal, 225 U.S. 561, 569 (1912) (―A 

suit to enforce a right which takes its origins in the laws of the 

United States is not necessarily, or for that reason alone, one 

arising under those laws, for a suit does not so arise unless it 

really and substantially involves a dispute or controversy 

respecting the validity, construction, or effect of such a law, 

upon the determination of which the result depends.‖).

12Granted, the mining statute did not refer to the venue in 

which suits should or may be brought, whereas the TCPA 

specifically states that causes of action ―may be brought‖ in 

―an appropriate court of that state.‖ 27 U.S.C. § 227(b)(3). 
27

to create exclusive state court jurisdiction. The Shoshone 

Court‘s justification for removing certain federally created 

causes of action from federal courts‘ § 1331 jurisdiction 

where state law issues dominate or state rules govern does not 

apply to diversity jurisdiction, which, as we have described, 

―derives its basis not on the presence of a federal question, 

but rather on an independent anti-discrimination rationale.‖ 

Biggerstaff v. Voice Power Telecomms., Inc., 221 F. Supp. 2d 

652, 657 (D.S.C. 2002).

13

 Both the mining statute and the 

 

13Similarly, in Bay Shore Union Free School District v. Kain, 

485 F.3d 730, 733-36 (2d Cir. 2007), the Second Circuit 

found that federal courts did not have federal question 

jurisdiction over claims under the Individuals with 

Disabilities Education Act (IDEA) where those claims turned 

entirely on state law and where diversity of citizenship was 

absent. IDEA required school districts to provide 

individualized education programs for disabled 

schoolchildren and provided that parties ―aggrieved by‖ the 

state or local agency‘s review of those programs ―shall have 

the right to bring a civil action‖ challenging the agency‘s 

decision ―in any State court of competent jurisdiction or in a 

district court of the United States.‖ Id. at 735 (quoting 20 

U.S.C. § 1415(i)(2)(A)). The Second Circuit found that, 

despite the reference in IDEA‘s jurisdictional provision to 

―district courts,‖ district courts lacked § 1331 jurisdiction 

over IDEA claims where the resolution turned entirely on 

state law, like the school district‘s challenge here to the local 

education agency‘s determination that the district was obliged 

to provide a student with a one-to-one aide during class. A 

federal court, Bay Shore said, ―may not exercise jurisdiction 

over a civil action brought under § 1415(i)(2)(A) if the claims 

asserted turn exclusively on matters of state law and diversity 
28

TCPA are examples of federal causes of action that 

essentially enable state enforcement; as such, neither confers 

federal question jurisdiction in the federal courts, but neither, 

without more, disrupts the baseline framework of federal 

diversity jurisdiction over large claims between diverse 

parties.14 

E.

With this understanding of diversity jurisdiction in 

mind, we turn now to the TCPA itself. Due to the nature of 

diversity jurisdiction, it would take a ―clear and definitive‖ 

 

of citizenship is absent.‖ Id. at 736 (emphasis added). As in 

Shoshone, the court‘s conclusion regarding federal courts‘ 

lack of § 1331 jurisdiction under a federally created cause of 

action did not bear on the independent question of whether 

federal courts could have diversity jurisdiction under the 

statute. 

14Plaintiffs‘ claims under the mining statute in Shoshone and 

IDEA in Bay Shore turned entirely on the interpretation of 

state law. By contrast, the sources of law applicable in 

adjudicating TCPA claims are not so clearly limited, thus 

complicating our § 1331 jurisdictional inquiry – i.e. 

Shoshone‘s exception to the rule that ―a suit arises under the 

law that creates the cause of action‖ does not squarely apply 

to private causes of action under the TCPA. The presumption 

of diversity jurisdiction in both cases despite the state-law 

focus of the mining and IDEA statutes, however, underscores 

both diversity jurisdiction‘s independence from the § 1331 

inquiry and its baseline presence where it has not been 

explicitly divested.
29

directive from Congress to persuade us ―to remove a party‘s 

entitlement to a federal forum based on diversity.‖ 

Accounting Outsourcing, 294 F. Supp. 2d at 838. As the 

Second Circuit did, we ―proceed according to the rule that § 

1332 applies to all causes of action, whether created by state 

or federal law, unless Congress expresses a clear intent to the 

contrary.‖ Gottlieb, 436 F.3d at 340. Our demand for a clear 

statement comports with our general view that ― ̳repeals by 

implication are not favored and will not be presumed unless 

the intention of the legislature is clear and manifest.‘‖ Hagan 

v. Rogers, 570 F.3d 146, 154-55 (3d Cir. 2009) (quoting Nat’l 

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 

644 (2007) (internal quotation marks and brackets omitted)). 

We do not find the TCPA‘s language sufficiently clear 

or forceful enough to deprive federal courts of diversity 

jurisdiction over TCPA claims. Nothing in § 227(b)(3) or the 

overall statute indicates that Congress intended for individual 

claims brought under the TCPA to operate any differently 

than other suits between diverse parties where the amount in 

controversy meets § 1332‘s requirements. 

 

First, § 227(b)(3) itself, which states that ―[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‖ an 

action for damages against defendants who have violated the 

TCPA, does not expressly remove federal courts‘ diversity 

jurisdiction over TCPA claims. As the Tenth Circuit has 

noted, ―[t]his fact alone is probably sufficient to demonstrate 

the presence of diversity jurisdiction because  ̳[diversity 

jurisdiction] is an independent grant of federal jurisdiction . . . 

[that] is presumed to exist for all causes of action so long as 
30

statutory requirements are satisfied.‘‖ U.S. Fax Law Ctr., 476 

F.3d at 1117 (quoting Gottlieb, 436 F.3d at 340).

15

 

 

15We note, as Gottlieb did, the contrast between the absence 

of any reference to diversity jurisdiction in the TCPA and the 

overt elimination of such jurisdiction in at least two other 

federal statutes. See 436 F.3d at 340 n.6. The Johnson Act 

states: 

The district courts shall not enjoin, suspend or restrain 

the operation of, or compliance with, any order 

affecting rates chargeable by a public utility and made 

by a State administrative agency or a rate-making body 

of a State political subdivision, where: (1) Jurisdiction 

is based solely on diversity of citizenship or 

repugnance of the order to the Federal Constitution; 

and, (2) The order does not interfere with interstate 

commerce; and, (3) The order has been made after 

reasonable notice and hearing; and, (4) A plain, speedy 

and efficient remedy may be had in the courts of such 

State. 

28 U.S.C. § 1342 (emphasis added). In the Johnson Act, 

Congress made explicit its intention to preclude subject 

matter jurisdiction based on diversity. In addition, the 

legislative history of the Act makes it plain that Congress‘s 

purpose in passing the Act was to ―prevent out-of state 

utilities from challenging state administrative orders in 

federal court,‖ Accounting Outsourcing, 294 F. Supp. 2d at 

839 (citing California v. Grace, 457 U.S. 393, 410 n.22), a 

purpose that aligns with divesting the federal courts of 

diversity jurisdiction. 

The Tax Injunction Act provides: 

The district courts shall not enjoin, suspend or restrain

the assessment, levy or collection of any tax under 
31

Moreover, the statute‘s ―permissive grant of 

jurisdiction to state courts,‖ ErieNet, 156 F.3d at 523 (Alito, 

J., dissenting) – its provision that litigants ―may‖ bring 

private actions in state courts – does not indicate that suits are 

required to be brought in state court; it suggests only that, as 

 

State law where a plain, speedy and efficient remedy 

may be had in the courts of such State. 

28 U.S.C. § 1341 (emphasis added). Though the text of the 

TIA does not specifically address diversity jurisdiction, the 

legislative history indicates that Congress intended to ―stop 

out-of-state corporations from using diversity jurisdiction to 

gain injunctive relief against a state tax in federal court . . . .‖ 

Jefferson County, Ala. v. Acker, 527 U.S. 423, 435 (1999). 

Both the Johnson Act and the TIA ―were designed to 

eliminate disparities between taxpayers who could obtain 

injunctive relief in federal court – namely out-of-state 

corporations asserting diversity jurisdiction – and local 

taxpayers who were left to litigate in state courts where 

taxpayers often had to pay first and litigate later.‖ Accounting 

Outsourcing, 294 F. Supp. 2d at 839. In these contexts, the 

usual justification for diversity jurisdiction – preventing 

discrimination against out-of-state defendants – is absent; in 

fact, Congress wished to address the converse concern –

eliminating any preference for out-of-state defendants. With 

the TCPA, Congress has evinced no such countervailing 

concern. Neither the TCPA‘s text nor legislative history 

suggests any reason for barring federal subject matter 

jurisdiction where the parties are diverse and the amount in 

controversy meets the jurisdictional bar. 
32

the text says, they may be brought in state courts.16 As we 

observed in ErieNet, Congress, with this permissive language, 

―referred . . . [TCPA] claims to state court as forcefully as it 

could‖ given possible constitutional difficulties with 

mandating a resort to state courts. 156 F.3d at 516 (emphasis 

added). We found Congress‘s direction emphatic enough and 

adequately indicative of a lack of federal concern to remove 

federal courts‘ § 1331 jurisdiction over TCPA claims. The 

direction, however, is not the kind of precise, unambiguous 

statement of congressional intent to confer exclusive state 

court jurisdiction that is required to divest a court of its 

diversity jurisdiction. The language in the Johnson Act and 

the TIA, see supra n.15, demonstrates that when Congress 

wishes to strip federal courts of diversity jurisdiction, it does 

so clearly, and usually in a context where the policy concerns

underlying diversity jurisdiction are absent. In these 

instances, a congressional directive to strip courts of diversity 

jurisdiction need not be inferred from statutory text and 

legislative history that speak more directly to questions of 

federal interest, state/federal balance and other barometers of 

federal question jurisdiction; instead, the abrogation is clearly 

stated. 

The TCPA‘s statutory structure further supports our 

interpretation. See United States v. CDMG Realty Co., 96

F.3d 706, 714 (3d Cir. 1996) (noting that, in statutory 

construction, ―[m]eaning derives from context‖). Courts of 

 

16See ErieNet, 156 F.3d at 522 (Alito, J., dissenting) (noting 

that the TCPA was designed to ― ̳allow consumers to bring an 

action in state court.‘‖) (quoting 137 Cong. Rec. S16205 

(daily ed. Nov. 7, 1991)) .
33

appeals addressing federal question jurisdiction under the 

TCPA have pointed out that Congress‘s drawing of 

jurisdictional distinctions in other parts of the TCPA made its 

failure to do so in § 227(b)(3) more significant. The Second 

Circuit in Foxhall and the Fourth Circuit in International

Science cited § 227(f)(2)‘s explicit mandate that federal 

courts have exclusive jurisdiction over TCPA claims brought 

by states‘ attorneys17 as evidence that where Congress 

affirmatively intended for federal court jurisdiction, it so 

stated. In addition, as Gottlieb recognized, § 227(f)(2)‘s 

exclusive jurisdiction language further suggests that 

Congress, in the very same act, knew how to explicitly assign 

exclusive jurisdiction to one set of courts. Thus, when in § 

227(b)(3) it ―did not similarly vest categorical,  ̳exclusive‘ 

jurisdiction in state courts for private TCPA claims,‖ it 

therefore ―did not divest federal courts of both federal 

question and diversity jurisdiction.‖ Gottlieb, 436 F.3d at 338 

(emphasis added). Regarding the overall statutory structure, 

the Second Circuit concluded, and we agree, that ―[j]ust as 

nothing in the language of § 227(b)(3) expresses a 

congressional intent to divest the federal courts of jurisdiction 

under the TCPA, nothing in the statutory structure indicates 

that intent.‖ Id. at 339. 

Our interpretation is also consistent with the TCPA‘s 

statutory purposes, as revealed in the statute‘s legislative 

history. See Klein v. Vision Lab Telecomm., Inc., 399 F. 

Supp. 528, 534 (S.D.N.Y. 2005) (―This interpretation [that 

 

17Section 227(f)(2) provides, in relevant part, that ―[t]he 

district courts of the United States . . . shall have exclusive 

jurisdiction over all civil actions brought under this 

subsection.‖ 47 U.S.C. § 227(f)(2). 
34

federal courts have § 1332 jurisdiction under the TCPA] is 

consistent with the purposes of the TCPA, as reflected in the 

Act‘s legislative history.‖). In reading the TCPA to exclude 

federal question jurisdiction, several courts of appeals have 

looked to Senator Hollings‘s suggestion that ―state courts 

provide a more appropriate forum for small value claims and 

plaintiffs appearing on their own behalf.‖ Accounting 

Outsourcing, 294 F. Supp. 2d at 837 (citing Int’l Sci., 106 

F.3d at 1152-53 (internal citations omitted)). See also, e.g., 

ErieNet, 156 F.3d at 518 (citing the congressional record and 

Senator Hollings‘s statement); Int’l Sci, 106 F.3d at 1152-53 

(same). Congress‘s preference for resolving small TCPA 

claims in state courts designed to handle them, significant to § 

1331 analysis, has little relevance and ―little force in a 

diversity suit, which by definition involves an amount in 

controversy exceeding $75,000.‖ U.S. Fax Law Ctr., 476 

F.3d at 1117 (citing Accounting Outsourcing, 294 F. Supp. 2d 

at 840). As then-Judge (now Justice) Alito noted in his 

ErieNet dissent, ―the Senator said nothing about preventing 

corporate adversaries who are battling over large sums of 

money from . . . go[ing] to federal court.‖ 156 F.3d at 522.18 

Nothing in the Senator‘s statements contradicts or even 

speaks to the basic rationale underlying diversity jurisdiction 

 

18Judge Alito, who argued that federal courts do have federal 

question jurisdiction under the TCPA, suggested that such 

battling corporate adversaries could choose to go to federal 

court, even in the absence of diversity. We disagree with his 

overall conclusion but concur with his reading of the statute‘s 

legislative history – that it ―confirm[s] the permissive grant of 

state jurisdiction found in the statute‘s text‖ and does not 

indicate that Congress intended for exclusive state 

jurisdiction. 156 F.3d at 522. 
35

– protecting out-of-state defendants from pro-citizen bias in 

the state courts. Indeed, our holding that federal courts have 

diversity jurisdiction over TCPA claims where § 1332‘s 

conditions are met – for the same protectionist reasons they 

always have diversity jurisdiction over larger claims between 

diverse parties – in no way conflicts with Congress‘s wish 

that individual low-value claims regarding unsolicited faxes 

be litigated in state courts.19 

As we have explained, nothing in the statutory text or 

legislative history of the TCPA expressly indicates that 

Congress intended to strip federal courts of their diversity 

 

19In examining the TCPA‘s statutory purpose, we also note 

what Congress clearly was not contemplating or targeting 

with passage of the TCPA. Private suits under the TCPA do 

not fall into the narrow ambit of causes of action over which 

state courts have exclusive jurisdiction even if the 

requirements of diversity are met. Cf. Colo. River, 424 U.S. 

at 817 (noting the ―virtually unflagging obligation of the 

federal courts to exercise the jurisdiction given them‖). 

These suits concern domestic relations – divorce, alimony, 

and child custody – and are confined to the state courts 

because of their highly localized nature and because of the 

primacy of states‘ interest in these matters. The TCPA, by 

contrast, does not regulate an area of the law characterized by 

deep-seated historical deference to state courts and state 

policy. Cf. Ankenbrandt, 504 U.S. at 704 (―[S]tate courts are 

more eminently suited to work of this type than are federal 

courts, which lack the close association with state and local 

government organizations dedicated to handling issues that 

arise out of conflicts over divorce, alimony, and child custody 

decrees.‖). 
36

jurisdiction under § 1332 over TCPA claims. Since diversity 

jurisdiction is not explicitly abrogated, it will only be found 

lacking if the ―diversity jurisdiction statute and the TCPA are 

 ̳irreconcilable.‘‖ U.S. Fax Law Ctr., 476 F.3d at 1117 (citing 

Colo. River, 424 U.S. at 808). See also Hagan, 570 F.3d at 

155 (― ̳An implied repeal will only be found where provisions 

in two statutes are in irreconcilable conflict, or where the 

latter act covers the whole subject area of the earlier one and 

is clearly intended as a substitute.‘‖) (quoting Branch v. 

Smith, 538 U.S. 254 (2003) (internal citations and quotation 

marks omitted)). 

The diversity jurisdiction statute and the TCPA are not 

irreconcilable. Though federally established, the TCPA 

essentially operates like a state law. By providing a federal 

law to counteract evasion of state law across state lines, 

Congress ―sought to put the TCPA on the same footing as 

state law, essentially supplementing state law where there 

were perceived jurisdictional gaps.‖ Gottlieb, 436 F.3d at 

342. In ErieNet, we noted that the ―mere need for federal 

legislation and provision of remedies does not give a right of 

access to a federal forum,‖ 156 F.3d at 517;

20 nor does a 

 

20Though the interstitial role of the TCPA does not suggest a 

clearly identifiable federal interest that would provide a basis 

for federal question jurisdiction, the TCPA‘s text and history 

also do not reflect the kind of clearly exclusive, localized 

concerns that are at the heart of domestic relations statutes or 

statutes like the TIA and the Johnson Act, see supra, which 

do not allow for diversity jurisdiction. See Accounting 

Outsourcing, 294 F. Supp. 2d at 840 (―Unlike matters 

involving taxes and public utilities, matters involving fax 

transmission can hardly be deemed  ̳traditionally regulated‘ 
37

federal law‘s gap-filling function or its operation alongside 

state law remove the action from federal court entirely. We 

agree with the Second Circuit that, ―[i]nsofar as Congress 

sought, via the TCPA, to enact the functional equivalent of 

state law that was beyond the jurisdiction of a state to enact, it 

would be odd to conclude that Congress intended that statute 

to be treated differently, for purposes of diversity jurisdiction, 

than any other state statute.‖ 436 F.3d at 342. 

Not only are the TCPA and the diversity statute 

compatible, but it is actually the ―eliminat[ion] [of] diversity 

jurisdiction over TCPA claims‖ that would produce 

anomalous results. U.S. Fax Law Ctr., 476 F.3d at 1117

(emphasis in original). Indeed, interpreting the TCPA to vest 

exclusive jurisdiction in state courts would mean that ― ̳state 

law claims based on unlawful telephone calls could be 

brought in federal court, while federal TCPA claims based on 

those same calls could be heard only in state court.‘‖ Id.

(quoting Kinder v. Citibank, No. 99-CV-2500, 2000 WL 

1409762, at *4 (S.D. Cal. Sept. 14, 2000)). See also Gottlieb, 

436 F.3d at 342 (―The reasoning of those district courts that 

have noted the anomaly that would result if a plaintiff 

alleging a state-law cause of action for unauthorized 

telemarketing could sue in federal court on the basis of 

diversity jurisdiction but a TCPA plaintiff could not do so is . 

. . persuasive.‖) (citing Kinder, 2000 WL 1409762, at *4). 

Bifurcating related cases would ―promote a needless waste of 

resources through duplicative discovery and motion practice, 

and would create the possibility of conflicting factual findings 

 

by the states.‖). It is thus coherent to conclude that the TCPA 

produces neither federal question jurisdiction nor exclusive 

state court jurisdiction. 
38

and legal holdings.‖ Watson, 462 F. Supp. 2d at 646. In 

addition, finding exclusive state court jurisdiction under the 

TCPA would bar the federal courts from exercising 

supplemental jurisdiction under 28 U.S.C. § 1367 over TCPA 

claims: ―[W]here a federal court exercised federal question 

jurisdiction over a claim involving other provisions of the 

Communications Act or diversity jurisdiction over a claim 

under a parallel state statute, it could not hear a related TCPA 

claim.‖ 436 F.3d at 342. Without a clear statement from 

Congress precluding the exercise of supplemental jurisdiction 

over TCPA claims we are unwilling to so interfere with this 

established and independent basis of jurisdiction. See 

Watson, 462 F. Supp. 2d at 646 (―To interpret ErieNet to 

foreclose supplemental jurisdiction would produce a result 

that is unsupported by the language and the intent of the 

TCPA, and is inconsistent with the purpose of supplemental 

jurisdiction.‖).

Other impermissible consequences could also flow 

from the elimination of diversity jurisdiction. We note the 

possibility that, in the absence of diversity jurisdiction under 

§ 1332, a plaintiff who had received unsolicited faxes could 

entirely lose his right to file a private TCPA claim. The 

language in the TCPA providing that a plaintiff may bring 

suit in state court ―if otherwise permitted by the laws or rules 

of a State‖ suggests that, without diversity jurisdiction in 

federal courts, a plaintiff ―could be without any venue to file 

his claim if a state opted out of the TCPA.‖ U.S. Fax Law 

Ctr., 476 F.3d at 1117 (― ̳[I]f otherwise permitted by the laws 

or rules of a court of a State‘ implies that federal [question or 

diversity] jurisdiction . . . is available; otherwise where would 

victims go if a state elected not to entertain these suits?‖)

(citing Brill, 427 F.3d at 751)). 
39

Finally, we recognize that, on a practical level, 

Congress probably did not anticipate a circumstance in which 

a conflict between § 1332 and § 227(b)(3) would arise. 

Indeed, Congress set the statutory damages for individual 

TCPA claims at $500, a figure substantially lower than the 

$75,000 diversity jurisdiction bar. We have little doubt that 

in designing a statute to provide relief to aggrieved recipients 

of unsolicited faxes, Congress expected that these individuals 

would sue in state court and did not want federal court to be 

bothered with their claims. However, as the Second Circuit 

concluded, ―Congress‘s failure to foresee a circumstance in 

which diversity jurisdiction could be invoked does not serve 

as a barrier to federal jurisdiction in the absence of a clear 

statement to divest the federal courts of diversity 

jurisdiction.‖ Gottlieb, 436 F.3d at 343.21 Congress has 

given no indication that when litigants can aggregate their 

claims to add up to $75,000, or file as a class to reach 

CAFA‘s $5 million requirement, it intended that these claims 

be barred from federal court.22 Its failure to anticipate this 

 

21See also Charvat, 630 F.3d at 464 (interpreting § 227(b)(3) 

to ―suggest that Congress anticipated that the Act would be 

privately enforced primarily in state court‖ but concluding 

that this does not ―establish that such claims may proceed 

only in state court – that state court jurisdiction is exclusive‖). 

22The availability under § 227(f) of a cause of action brought 

by the state in federal court on behalf of its citizens does not 

act as a substitute for these aggregated claims; firstly, a 

parens patriae case brought by a state under § 227(f) does not 

provide the individual compensation provided for by § 

227(b)(3)‘s private cause of action and, secondly, as we noted 
40

circumstance does not signal or predict its intent now that the 

circumstance has arisen. To conclude otherwise is to enter 

the realm of speculation. We would prefer to let Congress 

speak for itself. As it stands, the TCPA does not direct us to 

treat diversity jurisdiction any differently than we normally 

would, and the litigants present no argument for why we 

should disrupt the standard premise that a federal forum is 

available for completely diverse parties where the amount in 

controversy is $75,000 or more and for minimally diverse 

parties where the amount is $5 million or more.

In holding that we have diversity jurisdiction over 

individual TCPA claims, we join a majority of courts of 

appeals and district courts that have considered or addressed 

the issue. See Gottlieb, 436 F.3d 335; U.S. Fax Law Ctr., 476 

F.3d at 1117 (following Gottlieb in concluding that, ―absent 

an explicit indication that Congress intended to create an 

exception to diversity jurisdiction, one may not be created by 

implication‖ and finding no such explicit indication in the 

TCPA); Gene & Gene LLC v. Biopay LLC, 541 F.3d 318, 

324-25 (5th Cir. 2008) (concluding without specific analysis 

of the diversity jurisdiction question that, because the 

requirements of CAFA were met, it has diversity jurisdiction 

over aggregated CAFA claims: ―[Regardless of federal 

question jurisdiction,] subject-matter jurisdiction, in any 

event, is proper under provisions of CAFA.‖); Klein, 399 F. 

Supp. 2d at 533-34; Watson, 462 F. Supp. 2d at 647; Kopff,

298 F. Supp. 2d at 55; Charvat, 703 F. Supp. 2d at 739 n.1; 

 

in ErieNet, ―the sheer number of calls made each day-more 

than 18,000,000-would make it impossible for government 

entities alone to completely or effectively supervise this 

activity.‖ 156 F.3d at 515. 
41

Accounting Outsourcing, 294 F. Supp. 2d at 839-40. We 

conclude that neither the TCPA itself nor our decision in 

ErieNet precludes district courts from hearing TCPA claims 

where an independent basis for federal jurisdiction, like 

diversity or supplemental jurisdiction, exists. Federal 

question and diversity are distinct jurisdictional bases; at least 

in the context of the TCPA, the existence or non-existence of 

one jurisdictional basis does not affect the existence of the 

other. As we read the TCPA, there is nothing in the statute 

itself – or suggested by its legislative history – that provides a 

basis for federal jurisdiction and, at the same time, there is 

nothing in it that deprives federal courts from hearing TCPA 

claims where independent grounds for jurisdiction exist. A 

federal cause of action that gives rise to § 1332, but not § 

1331, jurisdiction is indeed rare, Gottlieb, 346 F.3d at 342 n. 

8, but it would defy congressional intent as expressed in the 

TCPA‘s text and statutory scheme not to endorse this unique 

jurisdictional framework. 

F.

The Landsman District Court did not base its dismissal 

on the unavailability of diversity jurisdiction over private 

TCPA claims. It correctly noted that there could be diversity 

jurisdiction under the TCPA, largely based on its 

understanding that our ruling in ErieNet was confined to 

federal question jurisdiction.23 However, the District Court 

 

23Landsman also acknowledged that plaintiffs satisfied the 

three basic requirements of § 1332(d): that the class have at 

least 100 members, that there exist minimal diversity between 

the parties (Landsman is a New York citizen, and SkinderStrauss a New Jersey citizen), and that the amount in 
42

then went on to examine state law, deeming state law ―with 

respect to the TCPA‖ to be ―substantive‖ under Erie and 

conducting a choice-of-law analysis between New York and 

New Jersey law.

24

 See Erie, 304 U.S. 64. The Court 

appeared to believe that Erie controlled – and required a 

choice-of-law analysis – since the issue before the court in a 

diversity case necessarily involves a choice among state laws. 

The Court reached the conclusion that New York law would 

apply, and because New York does not permit class claims 

seeking aggregated statutory damages,25 plaintiffs could not 

 

controversy be at least $5 million (the complaint alleged that 

defendant sent over 10,000 faxes, and the damages for each 

fax are $500). 

24Citing our decision in Chin v. Chrysler LLC, 538 F.3d 272, 

278 (3d Cir. 2008), the Landsman Court decided that, in 

diversity cases, it must first determine whether a ―matter‖ is 

procedural or substantive; substantive ―matters‖ require a 

choice-of-law analysis. Concluding that ―no law could be 

more substantive than‖ CPLR § 901(b), since it ―would 

foreclose the possibility of this Court having jurisdiction,‖ 

636 F. Supp. 2d at 364, it performed a choice-of-law analysis 

to decide whether the substantive law of New Jersey or New 

York should apply. 

25New York‘s Civil Practice Law and Rules (―CPLR‖) 

§ 901(b) states the following:

Unless a statute creating or imposing a 

penalty, or a minimum measure of 

recovery specifically authorizes the 

recovery thereof in a class action, an 

action to recover a penalty, or minimum 
43

possibly have damages that would satisfy the $5 million 

amount-in-controversy requirement under CAFA. 

Accordingly, the District Court found that it could not 

exercise diversity jurisdiction over the case and granted 

defendant‘s motion to dismiss. 

We conclude that the Landsman Court‘s reasoning 

missed the mark. Because plaintiffs were proceeding under 

federal, not state, law – namely, the federal TCPA – there was 

no need for choice-of-law analysis under Erie.

26

 

Furthermore, even if the fact that the TCPA is a federal 

statute were not determinative, under Shady Grove 

Orthopedic Ass’n, P.A. v. Allstate Insurance Co., --- U.S. ---, 

130 S. Ct. 1431 (2010), federal law regarding class actions 

would be applied in federal courts, not state law. Rule 23, not 

§ 901(b), controls this TCPA class action, and plaintiff is thus 

authorized to maintain a class action as long as Rule 23‘s 

 

measure of recovery created or imposed 

by statute may not be maintained as a 

class action. 

C.P.L.R. § 901(b) (emphasis added). 

26See Erie, 304 U.S. at 78 (―Except in matters governed by 

the Federal Constitution or by acts of Congress, the law to be 

applied in any case is the law of the state.‖) (emphasis 

added); supra n.10 (noting that Erie‘s directive to apply state 

substantive law and federal procedural law in diversity cases 

is only applicable where state law causes of action are at 

issue). 
44

prerequisites are met.27 The Landsman District Court and the 

Flierware District Court, which adopted Landsman‘s 

 

27In Shady Grove, the Supreme Court held that § 901(b) 

―cannot apply in diversity suits‖ in federal court; rather, Rule 

23 controls. 130 S. Ct. at 1437. The only exception is when 

Congress has explicitly ―carved out . . . federal claims . . . 

from Rule 23‘s reach,‖ id. at 1428, which is not the case here. 

Indeed, we do not interpret § 227(b)(3)‘s ―if otherwise 

permitted by laws or rules of court of a State‖ language to 

carve out TCPA claims from Rule 23‘s ambit; we agree with

Justice Scalia that reading § 227(b)(3) to require deference to 

state class action law would mean that the TCPA ―effect[ed] 

an implied partial repeal of the Rules Enabling Act,‖ and 

―would require federal courts to enforce any prerequisite to 

suit state law makes mandatory—a state rule limiting the 

length of the complaint, for example.‖ Holster v. Gatco, Inc., 

130 S. Ct. 1575, 1575-76 (2010) (Mem. granting petition for 

writ of certiorari, vacating judgment and remanding to the 

Second Circuit) (Scalia, J., concurring). ―A more probable‖ 

reading of this language ―is that when a State closes its doors 

to claims under the Act § 227(b)(3) requires federal courts in 

the State to do so as well.‖ Id. at 1576. This language deals 

with the threshold requirement of where and when TCPA 

suits can be brought. It basically authorizes a state to keep 

these claims out of state court, see Brill, 427 F.3d at 451; Int’l 

Sci., 105 F.3d at 1156, but it does not explicitly require the 

application of state law or direct federal courts to defer to 

state law in deciding whether a class action can be 

maintained. Such a clear statement from Congress would be 

needed for TCPA claims to fall under the exception 

articulated in Shady Grove. Further, the Shady Grove

plurality objected to treating § 901(b) as a substantive law, 
45

reasoning on this point, erred in finding that New York‘s § 

901(b) applies here to preclude a TCPA class action. Since 

plaintiffs have met § 1332(d)‘s requirements, the District 

Courts can exercise diversity jurisdiction over their claims. 

The only remaining question, then, is whether Rule 23 was 

satisfied.

G.

The Afgo District Court took a different tack than the 

Landsman Court, but we also disagree with its approach. As 

was the case in Landsman, the Afgo court presumed the case 

could proceed based on diversity, but reasoned that if a class 

could not be certified, then § 1332(d)‘s amount in controversy 

could not be met. Accordingly, the Court set forth Rule 23‘s 

class certification requirements and determined that they were 

not fulfilled here.28 As we have noted, see supra, Rule 23 

 

since ―it is not the substantive or procedural nature or purpose 

of the affected state law that matters, but the substantive or 

procedural nature of the Federal Rule.‖ Id. at 1444. Because 

Rule 23 ―regulates procedure,‖ ―it is authorized by [the Rules 

Enabling Act] and is valid in all jurisdictions, with respect to 

all claims, regardless of its incidental effect upon statecreated rights.‖ Id.

28Rule 23(a) requires that a plaintiff seeking class certification 

must establish four requirements: numerosity, commonality, 

typicality and adequacy of representation. Fed. R. Civ. P. 

23(a). In addition, plaintiffs must meet one of the 

requirements of Rule 23(b). Rule 23(b) requires that one of 

the following conditions is met: 
46

 

(1) prosecuting separate actions by or against 

individual class members would create a risk of: 

(A) inconsistent or varying adjudications with 

respect to individual class members that would 

establish incompatible standards of conduct for 

the party opposing the class; or 

(B) adjudications with respect to individual 

class members that, as a practical matter, would 

be dispositive of the interests of the other 

members not parties to the individual 

adjudications or would substantially impair or 

impede their ability to protect their interests; 

(2) the party opposing the class has acted or refused to 

act on grounds that apply generally to the class, so that 

final injunctive relief or corresponding declaratory 

relief is appropriate respecting the class as a whole; or 

(3) the court finds that the questions of law or fact 

common to class members predominate over any 

questions affecting only individual members, and that 

a class action is superior to other available methods for 

fairly and efficiently adjudicating the controversy. The 

matters pertinent to these findings include: 

(A) the class members' interests in individually 

controlling the prosecution or defense of 

separate actions; 

(B) the extent and nature of any litigation 

concerning the controversy already begun by or 

against class members; 

(C) the desirability or undesirability of 

concentrating the litigation of the claims in the 

particular forum; and 
47

does apply here. However, delving into the propriety of class 

certification was the wrong focus at that early stage of the 

proceeding. 

The Afgo Court held that, even with additional 

discovery, plaintiffs would not be able to fulfill Rule 

23(a)(3)‘s typicality requirement or any of Rule 23(b)‘s 

requirements.29 Regarding both typicality and predominance, 

it explained that there were too many ―crucial factual 

determinations to be made with respect to claims and 

defenses that will vary from party to party,‖ in particular, 

consent to receive faxes and the existence of a prior business 

relationship with defendant. 2009 WL 2602200, at *5. With 

respect to Rule 23(b)(1), the Court concluded that the claims 

of all potential plaintiffs were factually distinct enough that 

there would be no risk of inconsistent adjudications. Id. 

Finally, it concluded that a class action was not a superior 

means of adjudicating this kind of controversy because the 

 

(D) the likely difficulties in managing a class 

action. 

Fed. R. Civ. P. 23(b). Goodrich alleged in its complaint that 

it meets Rule 23(b)(3)‘s predominance and superiority 

requirements, under which a plaintiff must show that 

―questions of law or fact common to the members of the class 

predominate‖ over questions affecting only individual 

members and that a class action is ―superior to other available 

methods for the fair and efficient adjudication of the 

controversy.‖ Fed. R. Civ. P. 23(b)(3). 

29The Flierware Court did not conduct an independent 

analysis on the class certification question; it wholly adopted 

Afgo‘s reasoning on this point. 
48

individual recovery scheme contemplated by the TCPA –

which allows individuals to recover $500 to $1500 per 

violation when their actual losses from receiving unwanted 

faxes are slight by comparison – already contains a punitive 

element that both deters potential violators and motivates 

individuals to file claims. Id. In fact, the Afgo Court

reasoned, a class action would be an inferior means; an 

individual plaintiff who could have received damages quickly 

and without attorney‘s fees on her own would instead have to 

engage in protracted litigation and incur substantial legal fees 

that would reduce her recovery. Id.

Afgo‘s class certification analysis – and Flierware‘s

adoption of it – are conclusory at best.30 When the District 

Courts decided the class certification issue, there had been no 

motion for class certification and no discovery; whether the 

class could potentially fit within Rule 23 was determined on a 

motion to dismiss. This ruling was premature. To determine 

if the requirements of Rule 23 have been satisfied, a district 

court must conduct a ―rigorous analysis.‖ In re Hydrogen 

Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 

2008). In doing so, a ―court may  ̳delve beyond the pleadings 

to determine whether the requirements for class certification 

are satisfied.‘‖ Id. at 316 (quoting Newton v. Merrill Lynch, 

Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir. 

2001)). Particularly when a court considers predominance, it 

 

30We note at the outset our agreement with plaintiff 

Landsman that this case is not among the rare few where the 

complaint itself demonstrates that the requirements for 

maintaining a class action cannot be met. See Rios v. State 

Farm Fire & Cas. Co., 469 F. Supp. 2d 727, 740 (S.D. Iowa 

2007).
49

may have to venture into the territory of a claim‘s merits and 

evaluate the nature of the evidence. Id. at 310-11. In most 

cases, some level of discovery is essential to such an 

evaluation. In Weiss v. Regal Collections, 385 F.3d 337 (3d 

Cir. 2004), we emphasized the importance of discovery as 

part of the class certification process. ―It seems appropriate,‖

we said, ―that the class action process should be able to  ̳play 

out‘ according to the directives of Rule 23 and should permit 

due deliberation by the parties and the court on the class 

certification issues.‖ Weiss, 385 F.3d at 347-48 (footnote 

omitted). Accordingly, ―[a]llowing time for limited discovery 

supporting certification motions may . . . be necessary for 

sound judicial administration.‖ Id. at 347 n.17. These 

concerns were the basis for setting down a ―rigorous analysis‖ 

requirement in Hydrogen Peroxide, where we recognized that 

changes in Rule 23 reflected the need ―for a thorough 

evaluation of the Rule 23 factors.‖ Hydrogen Peroxide, 552 

F.3d at 318. 

Further, in the specific context of claims filed under 

the TCPA statute, it is difficult to resolve without discovery 

whether there are factual issues regarding class members‘ 

business relationships with defendants or whether they 

consented to the receipt of faxes. See Gene & Gene LLC v. 

BioPay LLC, 541 F.3d 318, 327-28 (5th Cir. 2008) (in 

discussing issues of commonality regarding consent, noting 

that ―there are no invariable rules regarding the suitability of 

a particular case filed under [§ 227(b)(3)] of the TCPA for 

class treatment; the unique facts of each case generally will 

determine whether certification is proper‖). Without 

discovery, the ―unique facts‖ of this case, or any other, will 

not really be exposed. As the Fifth Circuit noted, differences 

among plaintiffs‘ consent may be defeated by common proof 
50

developed in discovery. See id. at 327-28 (noting the 

possibility of presenting a ―novel, class-wide means of 

establishing . . . lack of consent‖ on discovery – where the 

common question was whether inclusion of the recipients‘ fax 

numbers in a purchased database indicated their consent to 

receive faxes). The parties should have the opportunity to 

develop the record on this issue.

Furthermore, we believe that the Afgo Court‘s 

reasoning on many of the aspects of how the class might or 

might not pass muster under Rule 23 were conclusory and 

subject to debate. First, it is not clear that, as a matter of law, 

differences regarding consent are sufficient to defeat class 

certification. In Hinman v. M & M Rental Center, Inc., 545 

F. Supp. 2d 802 (N.D. Ill. 2008), the district court rejected the 

defendant‘s argument that considerations of consent and 

receipt of faxes are individualized questions so as to defeat 

class certification and noted that ―commonality and typicality 

are generally met where, as here, a defendant engages in a 

standardized course of conduct vis-à-vis the class members, 

and plaintiffs‘ alleged injury arises out of the conduct.‖ 545 

F. Supp. 2d at 806-07 (citing Keele v. Wexler, 149 F.3d 589, 

594 (7th Cir. 1998)). The defendant had argued that, because 

the TCPA applies only to unsolicited faxes, individual 

analysis is required to determine whether each class member 

consented to transmission of the faxes in question. The court 

nonetheless found that the class members met Rule 23‘s

commonality requirement. It pointed out that the defendant‘s 

fax broadcasts were transmitted en masse based on a ―leads‖ 

list compiled several years earlier and that, under these 

circumstances, the consent question could be understood as a 

common question. ―The possibility that some of the 

individuals on the list may separately have consented to the 
51

transmissions at issue is an insufficient basis for denying 

certification.‖ Id. at 807. But see Forman v. Data Transfer, 

Inc., 164 F.R.D. 400, 404 (E.D. Pa. 1995) (denying 

certification of TCPA claim based on ―inherently 

individualized‖ question of consent).

Second, the Afgo Court stated that a class action would 

not be a superior method of handling claims under the TCPA. 

We are not so sure this is correct.31 The Afgo Court‘s

suggestion that the individual statutory damages of $500 to 

$1500 are enough to both punish offenders and spur victims 

substitutes its judgment for that of Congress and makes 

unmerited presumptions regarding deterrence and the 

motivation to litigate. Had Congress wanted to preclude 

aggregation of individual TCPA claims, it could have so 

provided in the TCPA itself or in CAFA, which specifically 

lists certain types of statutory claims that could not be 

brought as class actions. 28 U.S.C. § 1332(d). CAFA lists 

various other statutes, but not the TCPA. Moreover, although 

nuisance faxes are not the most egregious of wrongs policed 

by Congress, the District Court was speculating when it 

assumed that individual suits would deter large commercial 

entities as effectively as aggregated class actions and that 

individuals would be as motivated – or even more motivated 

– to sue in the absence of the class action vehicle. The 

District Court should not have dismissed out of hand the 

possibility that a class action could provide a superior method 

 

31The Afgo Court also states, without citation, that New Jersey 

law would govern the substantive aspects of a TCPA case 

brought under a federal court‘s diversity jurisdiction and that 

New Jersey would not permit class actions in a case such as 

this. As we noted above, this is neither relevant nor correct. 
52

of ―fairly and efficiently adjudicating the controversy,‖ as 

required by Rule 23(b)(3). Although individual actions under 

the TCPA may be easier to bring in small claims court than 

other types of cases, that does not necessarily undermine the 

greater efficiency of adjudicating disputes involving 10,000 

faxes as a single class action. Indeed, as plaintiffs point out, 

we have little reason to believe that individual actions are 

automatically efficient; plaintiffs can still face protracted 

litigation when they sue individually. 

Finally, where common issues certainly exist, a district 

court might consider subclassing in lieu of decertification. 

The Hinman court, for example, noted the viability of 

defining the class to include only individuals who did not 

consent. ―[B]y certifying a class of individuals who received 

unsolicited faxes,‖ the court explained, it was ― ̳merely 

setting the boundaries of the class‘ not resolving the 

substantive issues.‘‖ Hinman, 545 F. Supp. at 807 (internal 

quotation marks and citation omitted). See Chiang v. 

Veneman, 385 F.3d 256, 268-69 (3d Cir. 2004) (rather than 

decertifying a class, choosing the ―less drastic course‖ of 

―simply modify[ing] the class definition‖); Simer v. Rios, 661 

F.2d 655, 672 n.29 (7th Cir. 1981) (―[Decertification] ignores 

the possibility of subclassing, a viable alternative in resolving 

such problems.‖). 

Discovery is necessary for the district court to conduct 

the ―rigorous analysis‖ it is tasked with at this stage, and 

more than speculation and supposition is needed to say that 

any vehicle is really superior. A more robust record must be 

developed here as to the precise nature of the class claims. 

Accordingly, we will vacate the orders of the District Court 
53

dismissing these three cases and remand for further 

proceedings consistent with this opinion.
1

Landsman & Funk, P.C. v. Skinder-Strauss Associates et 

al.

Nos. 09-3105, 09-3532 & 09-3793

McKEE, C.J., concurring:

The lead opinion persuasively explains why federal 

courts have diversity jurisdiction over claims arising from the 

private cause of action created under the Telephone 

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b), and 

it relies on our prior decision in ErieNet v. Velocity Net Inc., 

156 F.3d 513 (3d Cir. 1998), to explain why the same is not 

true for federal question jurisdiction. I write separately 

because, although I agree that we have diversity jurisdiction 

to decide § 227(b) claims, I believe the very same rationale 

that leads to that result should lead us to conclude that we 

also have federal question jurisdiction over TCPA claims. See 

Lead Op. 28-41. 

The ErieNet majority concluded that we do not have 

federal question jurisdiction over the private cause of action 

in § 227(b). Our former colleague, now-Justice Alito,1

dissented. He argued that the text of the TCPA is insufficient

to support the conclusion that Congress intended to deprive us 

of the federal question jurisdiction over the TCPA‟s private 

cause of action that we would otherwise have pursuant to 28 

U.S.C. § 1331. He explained:

[S]ection 227(b)(3) says nothing 

about the jurisdiction of the 

federal district courts; instead, it 

says merely that an action under 

that provision “may” be brought 

in an appropriate state court “if 

otherwise permitted by the laws 

or rules of a court of” that state. 

More than this . . . is needed to 

 

1

 Inasmuch as he wrote his dissent in ErieNet while a member of 

this court, I will refer to Justice Alito as “Judge Alito” throughout 

my discussion of his analysis in ErieNet. 
2

divest a federal district court of its 

jurisdiction under section 1331.

ErieNet, 156 F.3d at 521 (Alito, J., dissenting). 

Judge Alito believed that the ErieNet majority erred by 

focusing on whether the text of the TCPA reflected an intent 

to allow federal courts to exercise federal question 

jurisdiction over suits brought under that statute. He reasoned 

that the proper inquiry must start with the preexisting grant of 

federal question jurisdiction in § 1331 and then proceed to an 

examination of the pertinent text of the TCPA. Then, and 

only then, can we determine if that text is sufficiently explicit 

to negate the longstanding grant of jurisdiction contained in § 

1331. 

The Supreme Court has since vindicated Judge Alito‟s 

analytical approach. The Court has clarified that the 

jurisdictional inquiry must begin and end by examining 

whether the statutory text at issue is sufficient to reflect 

Congress‟s intent to abrogate § 1331‟s broad grant of federal 

question jurisdiction. The inquiry cannot begin by focusing 

on whether the Act in question confers federal jurisdiction. 

The lead opinion here notes that in ErieNet, “[w]e noted that 

subject matter jurisdiction must be conferred by statute and 

that the TCPA did not expressly do that.” Lead Op. at 12. I 

agree that the TCPA does not confer jurisdiction. However, 

28 U.S.C. § 1331 clearly does. 

Today, we adopt Judge Alito‟s approach in inquiring 

into our diversity jurisdiction, but we leave ErieNet‟s holding 

as to federal question jurisdiction in place. The lead opinion 

reminds us that, “[i]n ErieNet we asked whether Congress 

conferred subject-matter jurisdiction in the TCPA; here we 

ask whether Congress intended state courts to have exclusive 

jurisdiction over TCPA claims and, thus, stripped away 

diversity jurisdiction.” See Lead Op. at 14. 

I see no way we can ask that latter question when 

inquiring into our diversity jurisdiction while asking a very 

different question when inquiring into federal question 
3

jurisdiction. The issue remains the same, subject matter 

jurisdiction, and the same question should be asked regarding 

federal question jurisdiction that we are asking about our 

diversity jurisdiction. 

When the ErieNet majority posed the jurisdictional 

question there, it did not have the advantage of several 

subsequent Supreme Court decisions that undermine the 

majority‟s analysis. We now have the benefit of those 

decisions and they undermine the holding of ErieNet.

A.

Since ErieNet, the Supreme Court has decided three 

cases that illuminate the appropriate inquiry for determining 

when federal courts have jurisdiction. 

In Verizon Md., Inc. v. PSC, 535 U.S. 635 (2002), the 

Supreme Court held that the Telecommunications Act of 

1996 (the “TCA”) did not remove federal question 

jurisdiction conferred under § 1331. A provision of the TCA 

required internet service providers (“ISPs”) to enter into 

reciprocal compensation agreements by which their networks 

were open to competing ISPs. The regulatory scheme 

required state utility commissions to approve the terms of the 

agreements and contemplated that the agreements would 

require compensation being paid for non local or out-ofnetwork calls. However, an issue arose over whether a new 

entrant into the market (WorldCom) had to pay reciprocal 

compensation to Verizon for local telephone calls that 

Verizon‟s customers placed to access the internet. Verizon 

claimed that WorldCom had to pay compensation because 

calls that connected a local customer to the internet were not 

“local” calls under the TCA. WorldCom disputed Verizon‟s 

claim and filed a complaint with the state utilities commission 

claiming that it was not obligated to compensate Verizon 

because the disputed calls were “nonlocal for purposes of 

reciprocal compensation,” Id. at 640, and therefore not 

subject to the reciprocal compensation agreement between the 

two ISPs. The state commission ruled in favor of WorldCom 

and ordered Verizon to pay WorldCom the reciprocal 
4

compensation owed under its reciprocal compensation 

agreement with Verizon. 

Thereafter, Verizon brought an action in district court 

against the state commission, WorldCom, and other 

telecommunications carriers, arguing that the state 

commission‟s ruling that it must pay reciprocal compensation 

to World Com violated the TCA and a ruling of the FCC.2 

Verizon cited 47 U.S.C. § 252(e)(6) and 28 U.S.C. § 1331 as 

the basis of the court‟s jurisdiction. 

Section 252(e)(6) of the TCA provides in part: “[i]n 

any case in which a State commission makes a determination 

under this section, any party aggrieved . . . may bring an 

action in an appropriate Federal district court to determine 

whether the agreement . . meets the requirements of . . . this 

[Act].” 47 U.S.C. § 252(e)(6). However, Verizon‟s suit 

involved “neither the approval or disapproval of a[n 

agreement] nor the approval or disapproval of . . . terms.” Id. 

Accordingly, the district court dismissed the case for lack of 

federal jurisdiction, and a divided Court of Appeals for the 

Fourth Circuit affirmed. 

The Supreme Court reversed, holding “even if § 

252(e)(6) does not confer jurisdiction, it at least does not 

divest the district courts of their authority under 28 U.S.C. § 

1331 to review the Commission's order for compliance with 

federal law.” Id. at 642 (emphasis in original). The Court 

began its analysis by determining that “Verizon‟s claim [of 

federal preemption] . . . falls within 28 U.S.C. § 1331‟s 

general grant of jurisdiction . . . .” Id. at 643. It then 

determined that “nothing in 47 U.S.C. § 252 (e)(6) purports to 

strip this jurisdiction.” Id. Rather, the Court found that § 

252(e)(6) “merely makes some other actions by state 

commissions reviewable in federal court. This is not enough 

to eliminate jurisdiction under § 1331.” Id. (emphasis in 

 

2

The FCC had ruled that the disputed calls were nonlocal “for 

purposes of reciprocal compensation but concluded that, absent a 

federal compensation mechanism for those calls state commissions 

could construe interconnection agreements as requiring 

compensation.” Id. at 640
5

original). The Court also found “none of the other provisions 

of the Act evince any intent to preclude federal review of a 

commission determination. If anything, they reinforce the 

conclusion that § 252(e)(6)’s silence on the subject leaves the 

jurisdictional grant of § 1331 untouched.” Id. at 644 

(emphasis added).

The Court‟s decision in Bruer v. Jim’s Concrete of 

Brevard, Inc., 538 U.S. 691 (2003), is even more to the point. 

There, Bruer sued his former employer, Jim‟s Concrete, under 

the Fair Labor Standards Act of 1938. A section of that Act 

states that a suit under the Act “may be maintain[ed] . . . in 

any Federal or State court of competent jurisdiction.” 29 

U.S.C. § 216(b). Bruer originally filed the case in state court, 

but Jim‟s Concrete attempted to remove the case to federal 

court. Bruer objected, arguing that the Act‟s provision that 

the suit “may be . . . maintain[ed] . . . in any federal or State 

court” deprived federal courts of removal jurisdiction.

A unanimous Supreme Court rejected the notion that 

removal was improper under the text of the statute. The Court 

again began by assuming federal removal jurisdiction existed 

and noting that “[n]othing on the face of [29 U.S.C.] § 216(b) 

looks like an express prohibition of removal [jurisdiction] . . . 

.” Bruer, 538 U.S. at 694. It noted that Congress‟s use of 

“maintain” was ambiguous and the fact that Congress stated 

that an action under the Act could be maintained in either 

federal or state court was therefore not sufficient to 

unambiguously establish congressional intent to divest federal 

removal jurisdiction. See id. at 695-96. 

Most recently, in Whitman v. Dept. of Transportation, 

547 U.S. 512 (2006), the Supreme Court, in a per curium 

opinion, explicitly rejected the Ninth Circuit Court of 

Appeal‟s approach to determining whether federal courts 

have jurisdiction over cases arising from the Civil Service 

Reform Act (“CSRA”). The Court noted that “[t]he Court of 

Appeals was correct in concluding that 5 U.S.C. § 7121(a)(1) 

does not confer jurisdiction.” However, that fact was not 

determinative because “[a]nother statute, . . . - a very familiar 

one - grants jurisdiction to the federal courts over „all civil 

actions arising under the Constitution, laws, or treaties of the 
6

United States.‟” Id. at 513-514 (quoting 28 U.S.C. § 1331). 

The Court continued: “The question, then, is not whether 5 

U.S.C. § 7121(a)(1) confers jurisdiction, but whether 5 U.S.C. 

§ 7121 (or the CSRA as a whole) removes the jurisdiction 

given to the federal courts.” Id. (citing Verizon Md., Inc., 535 

U.S at 642). 

Although these cases do not directly overturn ErieNet, 

they do clearly explain that our jurisdictional inquiry must 

begin with the general grant of federal jurisdiction found in 

Title 28 and then proceed to determining whether Congress 

has used language sufficiently specific to express an intent to 

divest federal courts of that pre-existing jurisdiction. 

B.

In examining our diversity jurisdiction here, the lead 

opinion quite correctly notes, “Here, the specific provision 

granting subject matter jurisdiction to the federal courts is 28 

U.S.C. § 1332(d) . . . .” Lead Op. at 16. It then proceeds to 

find that “[f]ederal courts only lack diversity jurisdiction 

where Congress has explicitly expressed an intent to strip 

federal courts of this jurisdiction . . . or where such 

jurisdiction is found to be irreconcilable with a congressional 

statute . . . .” Id. (citations omitted).3 Then, because the lead 

opinion finds that the TCPA is completely silent on the issue 

of federal jurisdiction, it quite correctly concludes that 

diversity jurisdiction must exist. I agree.

 

3

Judge Garth relies on statements of Senator Hollings to 

support his conclusion that Congress intended TCPA claims 

to be brought only in state courts. See Dissent at 4 & n2. I 

believe that the statements made by the bill‟s sponsor were 

best addressed by Judge Alto in his dissent in ErieNet. See 

ErieNet, 156 F.3d at 522 (“I do not believe that one speech 

given by one senator is sufficient to demonstrate the 

'unmistakable' intent of Congress. Moreover, even if Senator 

Hollings‟s statement were given controlling weight, it merely 

indicates that the TCPA was designed to „allow consumers to 

bring an action in State court.‟” (emphasis in original).
7

However, I depart from the lead opinion‟s decision to 

reaffirm the holding of ErieNet. The lead opinion concludes 

that the TCPA is one of those “rare” congressional acts that

deprives federal courts of federal question jurisdiction but not 

federal diversity jurisdiction. Lead Op. at 23. (citing Gottlieb, 

436 F.3d at 342 n.8). Indeed, the Supreme Court has recently 

noted that federally created causes of actions that do not 

result in federal question jurisdiction are “extremely rare,” 

citing a more than 110-year-old case as an example. Grable & 

Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 

U.S. 308, 317 n.5, 125 S.Ct. 2363, 2370 n.5 (2005) (citing 

Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726 

(1900)).4 

In justifying its differing analysis here and reaffirming 

the holding in ErieNet, the lead opinion attempts to 

distinguish federal question jurisdiction from diversity 

jurisdiction by insisting that “as our focus in ErieNet

demonstrates, congressional intent is a touchstone of federal 

question jurisdiction analysis.” Lead Op. at 25. Indeed it is, 

but it is the touchstone for determining both our diversity 

jurisdiction and federal question jurisdiction. 

 

4

Shoshone was a 1900 suit involving disputed title to a mine. 177 

U.S. 505. The Court held that there was no federal question 

jurisdiction even though the suit in support of an adverse claim to a 

mine arose out of a federal statute. The Court reasoned that 

Congress designed the federal system in such a way that “the great 

bulk of litigation respecting rights to property, although those 

rights may . . . go back to some law of the United States, is in fact 

carried on in the courts of the several states.” Id. at 507. 

However, suits under the TCPA do not involve the kind of 

local interests that have historically been left to the states. Rather, 

the TCPA is an attempt to regulate an instrumentality of interstate 

commerce. As the lead opinion notes, the legislative history of that 

Act refers to “the need for federal regulation to fill the gaps 

between individual states‟ regulatory efforts, since [s]tates do not 

have the jurisdiction to protect their citizens against those who use 

[automated dialing] machines to place interstate telephone calls.” 

Lead Op. at 9 (quoting S. Re. No. 102-178, at 5) (internal 

quotation marks omitted, brackets in original). 
8

The real reason that the lead opinion finds that we 

have diversity jurisdiction here while preserving ErieNet‟s 

conclusion that we lack subject matter jurisdiction is its 

analysis of diversity jurisdiction rests upon a very different 

foundation than the ErieNet conclusion regarding federal 

question jurisdiction. Here, the lead opinion correctly asks 

whether the TCPA abrogates jurisdiction already conferred by 

§ 1332, yet it preserves ErieNet, which improperly asked 

whether the TCPA confers jurisdiction itself, ignoring the 

grant of jurisdiction under § 1331. The opposing analytical 

approaches are outcome determinative, just as Judge Alito 

suggested in his ErieNet dissent. See 156 F.3d at 521-22. 

Moreover, “„[i]t is true . . . of journeys in the law that the 

place you reach depends on the direction you are taking. And 

so, where one comes out on a case depends on where one 

goes in.‟” United States v. Sigal, 341 F.2d 837, 844 & n.24 

(3d Cir. 1965) (quoting United States v. Rabinowitz, 339 U.S. 

56, 69 (1950) (Frankfurter, J. dissenting)). 

If we begin our analysis at the correct starting point, 

we would come out exactly where Judge Alito argued that we 

should in his ErieNet dissent. The private right of action 

under the TCPA unquestionably falls within § 1331‟s general 

grant of federal question jurisdiction. There is nothing in the 

TCPA that purports to strip that jurisdiction away, and the 

lead opinion here alludes to nothing that would accomplish 

that result. As the ErieNet majority recognized, neither the 

text of the statute nor the legislative history of the TCPA 

refers to federal courts at all. 156 F.3d at 516. This 

complete absence of expression simply cannot be woven into

the clear expression of congressional intent required to 

entirely remove federal jurisdiction. See Verizon, 535 U.S. at 

644.

C.

I am not alone in concluding that intervening Supreme 

Court decisions have undermined ErieNet‟s analytical 

framework. The Court of Appeals for the Seventh Circuit has 

noted that ErieNet and other decisions in the other Courts of 

Appeals that have found that federal courts do not have 

jurisdiction over cases involving the TCPA, “cannot be
9

reconciled with” recent Supreme Court decisions, including 

Bruer. Brill, 427 F.3d at 450. 

More recently, in Charvat v. Echostar Satellite, LLC, 

630 F.3d 459 (6th Cir. 2010), the Court of Appeals for the 

Sixth Circuit reversed its previous stance that there was no 

federal question jurisdiction under the TCPA, and concluded 

that intervening Supreme Court decisions undermined its 

previous analysis. The court noted that Congress had 

elsewhere in the TCPA created “exclusive federal jurisdiction 

over Telephone Act claims brought by state attorneys 

general.” 630 F.3d at 464 (citing 47 U.S.C.§ 227(F)(2)). The 

court reasoned that Congress therefore clearly knew how to 

use language that would create exclusive jurisdiction in a 

given forum, yet it had not otherwise done so. Rather, 

Congress had merely stated that the private cause of action 

created in § 227 could be brought in state courts.5The court 

examined provisions of the statute that permit suits to be 

brought in state courts and concluded that they were not 

sufficient to divest federal question jurisdiction: “These 

provisions may suggest that Congress anticipated that the Act 

would be privately enforced primarily in state court. But they 

do not establish that such claims may proceed only in state 

court—that state court jurisdiction is exclusive. Otherwise, 

the Act would preclude even federal—diversity jurisdiction.”

Id. at 464 (citing 28 U.S.C. § 1332). 

Conclusion

 

5

 In his dissenting opinion, Judge Garth reasons that 

Congress's use of “may” in the TCPA simply reflects the fact 

that “a litigant is not required to bring an action, but if he 

chooses to do so, he must comply with certain requirements.” 

Dissent at 10. However, no aggrieved party is ever required

to bring a lawsuit, and I am therefore not convinced that the 

permissive wording of the TCPA can be explained as Judge 

Garth suggests. I do not believe that Congress thought it 

necessary to tell aggrieved parties that they need not bring a 

lawsuit unless they want to. 
10

Today, we correctly hold that the TCPA does not 

preclude diversity jurisdiction. However, by allowing our 

decision in ErieNet to stand, we create two anomalies: First, 

we create an anomaly in our subject matter jurisdiction 

jurisprudence by using different analyses when determining 

whether there is diversity jurisdiction and federal question 

jurisdiction. Second, we create a situation whereby 

individual plaintiffs can bring a claim under a federally 

created cause of action in federal court only when the 

requirements of diversity jurisdiction are satisfied, but 

plaintiffs who cannot satisfy those requirements must sue 

under a federal statute in state court. 

I believe that our analysis with regard to diversity 

jurisdiction is equally applicable to federal question 

jurisdiction. We should have used this opportunity to correct 

the mistake we make in our analysis in ErieNet, and I regret 

that we are not taking this opportunity to say so.
1

Landsman & Funk PC v. Skinder-Strauss Associates et al.

Nos. 09-3105, 09-3532 & 09-3793

GARTH, Circuit Judge, dissenting:

The sole issue on this appeal is whether the Federal 

courts have jurisdiction to hear claims asserted under the 

Telephone Consumer Protection Act, 47 U.S.C. § 227. My 

colleagues claim they do. Because I would hold the District 

Courts‟ judgments lacked any source of jurisdiction over the 

plaintiffs‟ claims -- either federal-question jurisdiction (28 

U.S.C. § 1331) or diversity jurisdiction (28 U.S.C. § 1332) --

I am obliged to dissent from Judge Rendell‟s opinion, and I 

disagree with Chief Judge McKee‟s separate opinion.

1

I 

would affirm the dismissal of the complaint in each of the 

three cases under review.

I.

The Telephone Consumer Protection Act (TCPA) 

prohibits certain uses of telephone equipment. In particular, it 

prohibits the use of any device to send an unsolicited 

advertisement in the form of a fax, except under certain 

circumstances to a recipient with whom the sender has an 

established business relationship. 47 U.S.C. § 227(b)(1)(C). 

The TCPA creates a private right of action for persons 

aggrieved by statutory violations. In relevant part, 47 U.S.C. 

§ 227(b)(3) reads:

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 

 

1

 Judge Rendell believes there is no federal-question § 

1331 jurisdiction, but there is diversity § 1332 jurisdiction.

Chief Judge McKee would hold that there is both 

federal-question § 1331 jurisdiction and diversity § 1332 

jurisdiction.

I would hold that there is no federal-question § 1331 

jurisdiction, nor is there diversity § 1332 jurisdiction.
2

State [a private claim under the 

TCPA].

(Emphasis added.) Recipients of faxes sent in violation of the 

TCPA are entitled to an injunction against further violations, 

and to damages equal to an amount of the greater of their 

actual losses or $500 for each violation. Id. § 227(b)(3).

I emphasize at the outset our obligation to interpret 

specific and unambiguous provisions of a statute in a manner 

consistent with their plain meaning. United States v. Ron 

Pair Enters., Inc., 489 U.S. 235, 242 (1989); Lawrence v. City 

of Philadelphia, 527 F.3d 299, 316–17 (3d Cir. 2008). In 

construing the meaning of a statute, we are required to look 

first to the statute‟s plain meaning, Kaufman v. Allstate N.J.

Ins. Co., 561 F.3d 144, 155 (3d Cir. 2009), as evidenced by 

“„the ordinary meaning of the words used,‟” United States v. 

Doe, 564 F.3d 305, 310 (3d Cir. 2009) (quoting United States 

v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008)). We have been 

instructed to begin with the text of a provision and, if its 

meaning is clear, end there.

It is therefore clear to me that where Congress 

deliberately has designated the “courts of that State” as the 

forum for all claims of TCPA violations, we have no 

alternative but to comply with that dictate and hold that 

Federal courts may not entertain such claims, either by virtue 

of federal-question § 1331 jurisdiction, see ErieNet, Inc. v. 

Velocity Net, Inc., 156 F.3d 513 (3d Cir. 1998), or by virtue 

of diversity § 1332 jurisdiction.

II.

A. ErieNet remains viable as a precedent.

In September 1998, my colleague Judge Rendell and I 

constituted a majority of this court‟s panel holding that 28 

U.S.C. § 1331, which endows the district courts with 

“original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States,” did not 

permit Federal courts to hear TCPA claims. ErieNet, 156

F.3d 513. Although acknowledging that “Congress could 

have more clearly expressed its intent in the TCPA to decline 
3

to provide jurisdiction for these consumer suits in district 

court,” we held: “To find federal court jurisdiction here 

would not only be contrary to the clear intent of Congress, but 

also would represent a departure from well-established 

principles reflecting a reluctance to find federal jurisdiction 

unless it is clearly provided for.” Id. at 519.

In an earlier portion of that opinion, where we 

concluded that the TCPA did not itself confer jurisdiction on 

Federal courts, we examined the text of § 227(b)(3). We 

reasoned that “[t]he permissive authorization of jurisdiction in 

state courts does not imply that jurisdiction is also authorized 

in federal courts,” and concluded that the fora for such claims 

were exclusively the state courts, because “the most natural 

reading of this language is that Congress intended to 

authorize private causes of action only in state courts, and to 

withhold federal jurisdiction.” Id. at 516-17. 

We also were influenced by the statement of the 

TCPA‟s chief legislative sponsor, Senator Hollings,2 which 

reflected an intent that TCPA claims be brought in state court, 

id. at 515, and for an obvious reason – the penalty for 

violating TCPA was $500, far below the $75,000 amount 

which must be disputed to invoke a Federal court‟s diversity 

jurisdiction. We recognized that the remedy sought by a 

consumer would be brought in a State‟s small claims court. 

Finally, we observed that some other sections of the statute 

expressly provided for concurrent jurisdiction in the Federal 

courts, and suggested that the absence of a similar provision 

in § 227(b)(3) was “significant.” Id. at 517.

ErieNet thus held that § 1331 does not confer Federal 

jurisdiction over TCPA claims on the Federal courts, and has 

not since been overruled. And although Judge Rendell‟s

opinion tries to explain away ErieNet by noting that the 

ErieNet parties only sought federal-question jurisdiction, it 

cannot ignore the unequivocal language of our opinion and 

holding. ErieNet categorically discounted all forms of 

Federal jurisdiction. We emphatically stated: 

 

2

Sen. Hollings‟s statement is neither questioned nor 

contradicted by any other Senator‟s.
4

“Congress intended that private enforcement suits 

under the TCPA be brought in state, and not federal,

courts.” Id. at 516.

“The most natural reading [of § 227(b)(3)] is that 

Congress intended to authorize private causes of action 

only in state courts, and to withhold federal 

jurisdiction.” Id. at 517.

“„[T]he clear thrust of [Senator Hollings‟] statement 

was consistent with the bill‟s text that state courts were 

the intended fora for private TCPA actions.‟” Id.

(quoting Int‟l Sci. & Tech. Inst., Inc. v. Inacom 

Commc‟ns, Inc., 106 F.3d 1146, 1153 (4th Cir. 1997)). 

“[T]he explicit reference to state courts, and the 

absence of any reference to federal courts, reflects 

Congress‟ intent to withhold jurisdiction over such 

consumer suits in federal court.” Id.

“To find federal jurisdiction here would not only be 

contrary to the clear intent of Congress, but would also 

represent a departure from well-established principles 

reflecting a reluctance to find federal jurisdiction 

unless it is clearly provided for.” Id. at 519.

“[T]he TCPA reflects Congress‟ intent to authorize 

consumer suits in state courts only . . . .” Id.

“Congress intended to refer private litigants under the 

TCPA to state court . . . .” Id. at 520.

It must be emphasized that by holding that there was 

no Federal jurisdiction, we were not referring to federalquestion § 1331 jurisdiction alone, but we were referring to 

Federal jurisdiction as a whole. That whole includes diversity

§ 1332 jurisdiction.
5

III.

The Federal Courts Have No Diversity Jurisdiction Over 

TCPA Claims

Judge Rendell now seeks to explain away our ErieNet

opinion and to limit its reach, its reasoning, and its carefully 

chosen language to apply to just federal-question jurisdiction. 

In doing so, Judge Rendell‟s opinion now disclaims its allinclusive doctrine of jurisdiction despite our Court having 

approved the ErieNet opinion on circulation. ErieNet was 

circulated to our entire Court pursuant to our internal 

procedures, and was approved by the entire Court, other than 

the dissenting Judge in ErieNet.

3

 Under our principles, 

standards, and culture, unless an opinion of our Court is 

overruled either by the Supreme Court or by an en banc of 

our Court, it remains as a steadfast precedent and binds all 

subsequent panels, including this panel. See 3d Cir. Internal 

Operating P. 9.1. As a consequence, with no Federal 

jurisdiction available to adjudicate their claims, appellants 

have now argued that diversity § 1332 jurisdiction permits the 

Federal courts to hear their claims under the TCPA.

I respectfully disagree. 

A. Federal Courts Cannot Presume Jurisdiction Unless

Congress Has Granted It.

As a court of limited jurisdiction, we do not presume 

jurisdiction where it has not been otherwise divested, but 

rather, may only entertain a case if Congress given us 

jurisdiction to hear it. Bowles v. Russell, 551 U.S. 205, 212-

13 (2007); Kokkonen v. Guardian Life Ins. Co. of Am., 511 

U.S. 375, 377 (1994); Ankenbrandt v. Richards, 504 U.S. 

689, 697-98 (1992) ) (citing, among other cases, Cary v. 

Curtis, 44 U.S. 236, 245 (1845); Bender v. Williamsport Area 

Sch. Dist., 475 U.S. 534, 541 (1986) (citing Marbury v. 

Madison, 5 U.S. 137, 173-180 (1803)); Owen Equip. & 

Erection Co. v. Kroger, 437 U.S. 365, 372 (1978); Kline v. 

Burke Const. Co., 260 U.S. 226, 233-34 (1922); Sheldon v. 

Sill, 49 U.S. 441, 448-49 (1850); United States ex rel. 

 

3

 A petition for rehearing was denied by the Court. 

No Judge other than Judge Alito voted for rehearing.
6

Gittlemacker v. County of Philadelphia, 413 F.2d 84, 88 (3d 

Cir. 1969). That fundament of our jurisdiction rings as true

today at it did in 1799, when the Supreme Court held that “[a]

circuit court . . . is of limited jurisdiction . . . [a]nd the fair 

presumption is (not as with regard to a court of general 

jurisdiction unless the contrary appears, but rather) that a 

cause is without its jurisdiction, until the contrary appears.” 

Turner v. Bank of N. Am., 4 U.S. 8, 10 (1799). And certainly

when Congress has provided that such claims may only be 

heard in state courts, and not Federal courts, a court should be 

loath to impute jurisdiction that would confound and run 

contrary to the statutory language Congress has chosen. See

Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951) (“The 

jurisdiction of the federal courts is carefully guarded against 

expansion by judicial interpretation . . . .”).

Judge Rendell‟s opinion, which relies upon diversity 

jurisdiction to accommodate the plaintiffs‟ claims under the 

TCPA, is flawed. “Diversity, like all federal jurisdiction, is

limited in nature . . . .” Ramada Inns, Inc. v. Rosemount 

Mem‟l Park Ass‟n, 598 F.2d 1303, 1306 (3d Cir. 1979); see 

also, e.g., Loughlin v. United States, 393 F.3d 155, 171 (D.C. 

Cir. 2004) (“„Because federal courts are of limited 

jurisdiction, there is a presumption against the existence of 

diversity jurisdiction.‟” (quoting Naartex Consulting Corp. v. 

Watt, 722 F.2d 779, 792 (D.C. Cir. 1983)); Bank One, Texas, 

N.A. v. Montle, 964 F.2d 48, 54 (1st Cir. 1992) (stating that 

finding of no jurisdiction “is consistent with the notion that 

federal courts are courts of limited jurisdiction and the 

corollary presumption against diversity jurisdiction”); Bishop 

v. Hendricks, 495 F.2d 289, 293 (4th Cir. 1974) (noting that 

“artificial creation of diversity” would “run counter to the 

general policy of viewing the federal courts as tribunals of 

limited jurisdiction whose subject matter jurisdiction 

principles should be applied with restraint” (citation and 

internal quotation marks omitted)). Thus, diversity 

jurisdiction is not available to parties in lawsuits involving 

federal statutes that specify and provide restrictions and

requirements for jurisdiction. Congress, in §227(b)(3),

provided that all private claims (which would include 
7

diversity) be maintained in state courts, not Federal courts.4

There is simply no basis on which a Federal court can

conclude that its diversity jurisdiction is any less limited than 

other founts of Federal jurisdiction.

I admire Judge Rendell‟s historical analysis of 

diversity § 1332 jurisdiction. See Rendell op. at 17-28. 

Unfortunately, however, it has no application here, and is thus 

irrelevant because Congress has decreed that all cases under 

the TCPA are to be brought in state court. This being so, I 

see no point in discussing the history of diversity jurisdiction.

B. Jurisdiction over TCPA claims is exclusive in the state 

courts.

Section 227(b)(3) is the only provision of the TCPA 

that addresses the remedy available to a private party who has 

received an unsolicited fax in violation of the statute.

Congress imposed two key constraints on the availability of a 

forum for such a claim.

5

Under Congress‟s explicit language, the cause of 

action must be both (1) “permitted by the laws or rules of 

court of a State” and (2) “[brought] in an appropriate court of 

that State.”

The only reading of this language that is faithful to 

Congress‟s intent is that a private party may sue only in state 

court. By referring to a “court of a State” and a “court of that 

 

4

In Gottlieb v. Carnival Corp., 436 F.3d 335, 340 (2d 

Cir. 2006), the reasoning and holding of which Judge Rendell 

relies on heavily, the Second Circuit inexplicably deviated 

from established precedent by concluding that “the better 

course” would be to assume that “§ 1332 applies to all causes 

of action, whether created by a state or federal law, unless 

Congress expresses a clear intent to the contrary.” 

5 As noted earlier, § 227(b)(3) 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 

private claim under the TCPA.
8

State,” Congress was referring to state courts, not to Federal 

courts. The basic definitions of the word “of” include 

“[d]erived or coming from,” “[b]elonging or connected to,” 

and “issuing from.” Webster’s II University Dictionary

(1988). A court that is “of” a State must, therefore, be one 

whose power is derived from, belongs to, or is issued from,

the State. 

A Federal court, of course, possesses none of these 

properties; it is, instead, a court whose power is derived from 

the Federal government. A Federal district court merely 

happens to be located within the geographic boundaries of a 

State, and is not “of” that State. Thus, the District Court for 

the District of New Jersey cannot be said to be a “court of” 

New Jersey. Only the state courts of New Jersey satisfy that 

definition.6 Hence, when the TCPA uses the words “court of 

that State” plainly and unambiguously, it unmistakably refers

to a court which is part of a State‟s judicial system -- i.e., a 

state court.

That conclusion is not affected by the statute‟s use of 

the word “may” rather than “shall.” Although “[t]he word 

„may,‟ when used in a statute, usually implies some degree of 

discretion[,] . . . [t]his common-sense principle of statutory 

construction is by no means invariable, . . . and can be 

defeated by indications of legislative intent to the contrary or 

by obvious inferences from the structure and purpose of the 

statute.” United States v. Rodgers, 461 U.S. 677, 706 (1983) 

(citations and footnote omitted). The plain meaning of this 

 

6

This reading of the statute is consistent with other 

Federal statutes and with case law. Federal statutes use the 

terms “courts of a State” and “courts of the State” to refer 

exclusively to state courts. See, e.g., 28 U.S.C. § 2254(b)(1)

(“An application for a writ of habeas corpus . . . shall not be 

granted unless it appears that . . . the applicant has exhausted

the remedies available in the courts of the State . . . .”); 28 

U.S.C. § 1257(a) (“Final judgments or decrees rendered by 

the highest court of a State in which a decision could be had, 

may be reviewed by the Supreme Court by writ of certiorari . 

. . .”). Indeed, I have discovered no instance in which the 

phrase “court of a State” is used in a context that could 

possibly be read to include Federal courts. 
9

term in this context is that a litigant is not required to bring an 

action, but if he chooses to do so, he must comply with 

certain requirements. Here, the text, purpose, and structure of 

§ 227(b)(3) demonstrate that Congress intended to limit the 

private right of action to state courts, notwithstanding its use 

of the term “may.” Thus, a claimant need not bring an action 

under the TCPA, but if he chooses to do so, he must bring it 

in state court.

Moreover, as we said in ErieNet, “[f]or Congress‟ 

reference to state courts to have any meaning,” it must be that 

a private action under the TCPA may be brought only in state 

court. 156 F.3d at 517. By specifically referring to state 

courts, Congress was directing that those courts be the proper 

forum. Why else would they, and only they, be mentioned? 

Indeed, while Senator Hollings noted that Congress had not 

“dictated” which state court, Congress was clearly delineating

state courts, as opposed to the Federal court. 

C. Statements of Legislators

Notwithstanding our observation in ErieNet that 

“Congress referred [TCPA] claims to state court as forcefully 

as it could, given the constitutional difficulties associated 

with Congress‟ mandating a resort to state courts,” 156 F.3d 

at 516 (emphasis added), Judge Rendell and Chief Judge 

McKee now perceive ambiguity in that same congressional 

directive. I see no reason to depart from our holding in 

ErieNet that the language of the TCPA is plain and 

unambiguous, and requires a plaintiff‟s claim under the 

TCPA to be brought in a state -- not a Federal -- forum.

But even if the language were not so plain, it is telling 

that nowhere in the Congressional Record is there any 

implication or contemplation that private enforcement actions 

in the Federal courts were to be countenanced. Indeed, 

recognizing Sen. Hollings‟ concerns, it is apparent, as I noted 

earlier, that Congress wanted to make it easier for consumers 

to obtain damages from those who violate the bill. The 

Senator stated: “Small claims court, or a similar court, would 

allow the consumer to appear before the court without an 

attorney.” 137 Cong. Rec. S16204, 16205. It is obvious to 

me, as it must have been to Sen. Hollings and his colleagues, 
10

that Federal courts do not entertain “small claims,” and that a 

consumer would likely retain counsel if the cause of action 

were to be pursued in Federal court. 

Sen. Hollings was similarly aware of the disturbance 

caused to consumers by unsolicited faxes and telephone calls. 

He referred to patients in hospitals whose treatment might be 

interrupted by unsolicited calls, among others who would be 

the beneficiaries of this amendment. Accordingly, his 

amendment to the TCPA provided, in the same legislation, 

that any person who has received more than one telephone 

call within any twelve-month period by or on behalf of the 

same entity, in violation of the prescribed regulations, was 

permitted to bring in an appropriate “court of that State” an 

action which could result in $500 in damages, or if the 

violation was willful, an amount not more than $1500. Both 

the fax and the telephone provisions have amounts 

recoverable as damages in state court only. These statutory 

damages are far less than any diversity amount established by 

Congress for a Federal court‟s diversity jurisdiction. 

D. State Claims (47 U.S.C. § 227(f)(2)) as Distinct from

Private Claims (47 U.S.C. § 227(b)(3)))

47 U.S.C. § 227(f)(2) provides that when a State, as 

distinct from a private claimant, brings an action under the 

TCPA, it must be brought in the Federal courts.

It is significant that when Sen. Hollings‟ amendment 

turned to the authority of a State to pursue violators, that 

section of the amendment to the TCPA directed that 

jurisdiction was exclusive in the Federal courts. See 47 

U.S.C. § 227(f)(2). 7 It is evident that the Senate was keenly 

 

7

 Section 227(f)(2) provides:

The district courts of the United 

States, the United States courts of 

any territory, and the District 

Court for the District of Columbia 

shall have exclusive jurisdiction 

over all civil actions brought 

under this subsection [“Actions by 
11

aware of both state and Federal jurisdictions, and had both in 

mind when it sorted them out for defined purposes: A 

consumer‟s private right of action had to be brought in state

court; a State‟s cause of action had to be brought in Federal

court.

What could be plainer or more unambiguous?

E. Sister Courts of Appeals

I acknowledge that other courts have held that 

diversity jurisdiction may exist notwithstanding the absence 

of federal-question jurisdiction. See Gene & Gene, LLC v. 

BioPay, LLC, 541 F.3d 318, 325 n.6 (5th Cir. 2008); US Fax 

Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112, 117-18 (10th Cir. 

2007); Gottlieb, 436 F.3d at 340-41; see also Charvat v. 

EchoStar Satellite, LLC, 630 F.3d 459, 464 (6th Cir. 2010)

(holding, contra ErieNet and case law in five other circuits, 

that federal-question jurisdiction exists over TCPA claims); 

Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 450-51

(7th Cir. 2005) (holding that TCPA suits could be brought in 

Federal court under either § 1331 or § 1332, but noting that 

“if state jurisdiction really is „exclusive,‟ then it knocks out § 

1332 as well as § 1331”). However, I simply do not find the 

reasoning of these cases persuasive.

 

States”]. Upon proper 

application, such courts shall also 

have jurisdiction to issue writs of 

mandamus, or orders affording 

like relief, commanding the 

defendant to comply with the 

provisions of this section or 

regulations prescribed under this 

section, including the requirement 

that the defendant take such 

action as is necessary to remove 

the danger of such violation. 

Upon a proper showing, a 

permanent or temporary 

injunction or restraining order 

shall be granted without bond.
12

For example, in Gottlieb, the case on which Judge 

Rendell seeks to support her diversity theory, the Second 

Circuit acknowledged its own precedent, which, like ErieNet, 

concluded that Federal courts do not have § 1331 jurisdiction 

over TCPA claims. See Foxhall Realty Law Offices, Inc. v. 

Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir. 

1998). The Second Circuit said, “Our discussion of 

„exclusive jurisdiction‟ in Foxhall must be read in context. 

Foxhall dealt only with federal question jurisdiction; diversity 

jurisdiction was not raised in Foxhall.” Gottlieb, 436 F.3d at 

337. In an accompanying footnote, the court said: “Our use 

of the word „exclusive‟ in Foxhall meant only that state courts 

have exclusive substance-based jurisdiction over private 

TCPA claims. Foxhall did not speak to the existence of 

citizenship-based, or diversity, jurisdiction.” Id. at 337 n.3. 

With Foxhall thus distinguished, the court in Gottlieb went on 

to consider whether § 1332 provided a basis for jurisdiction, 

and concluded that it did, because “there is no clear statement 

of congressional intent to divest the federal courts of diversity 

jurisdiction over TCPA claims.” Id. at 340-41. 

I am not convinced, and I do not agree. Each of the 

considerations that led us in ErieNet (and the Second Circuit 

in Foxhall) to conclude that § 1331 jurisdiction is absent --

the statutory text‟s reference to state courts, the statement, 

motivation, and reasoning of the bill‟s legislative sponsor, etc. 

-- applies equally to the question of whether diversity 

jurisdiction exists. It simply does not make sense to say that 

Congress has made state-court jurisdiction “exclusive” with 

respect to one jurisdiction-conferring statute (§ 1331), but not 

the other (§ 1332). 

Our holding in ErieNet that Federal courts lacked 

federal-question § 1331 jurisdiction flowed from our analysis 

that Congress intended to confine private TCPA claimants to 

state court. Every rationale we relied upon to support that 

conclusion in ErieNet applies with equal force against the 

contention that Federal courts may exercise their diversity 

jurisdiction to hear TCPA claims.8

 

8

 Judge Rendell‟s opinion maintains that aggregation 

of small claims for purposes of diversity jurisdiction assuages 

any concern that small claims could worm their way into 
13

F. Class Action Fairness Act of 2005

Nor am I persuaded to change my view because of the 

fact that the Class Action Fairness Act (CAFA) was enacted 

later in time than the TCPA. As I understand it, the argument 

is that since CAFA was enacted in 2005, fourteen years after 

the TCPA was enacted in 1991, and since CAFA is a 

jurisdiction-conferring statute, it created Federal jurisdiction 

over claims brought under TCPA, even if the Federal courts 

would have lacked jurisdiction to hear them before CAFA 

became effective. I believe that it reads too much into CAFA 

to conclude that it creates jurisdiction over particular causes 

of action that Congress had earlier decided to exclude from 

Federal jurisdiction. 

CAFA was enacted to expand Federal jurisdiction over 

class actions involving classes with certain characteristics 

(e.g., only minimal diversity) that would have precluded 

Federal jurisdiction pre-CAFA. CAFA could not, and did 

not, confer jurisdiction over particular causes of action that 

Congress had previously withdrawn from the Federal courts. 

It is for Congress and only Congress, not the courts, to decide 

whether TCPA should be amended to allow claims to be 

heard in the Federal courts. Cf. Bowles, 551 U.S. at 212 

(“Within constitutional bounds, Congress decides what cases 

the federal courts have jurisdiction to consider.”). The courts 

of the Third Branch should not, and cannot, amend 

Congress‟s legislation to accord with a court‟s view. It is not 

a judicial function to enact legislation, or to repeal or amend 

legislation by court decree. That function -- the legislative 

function -- has been assigned by the Constitution to the 

Congress -- not the courts.

 

Federal court. See Rendell op. at 33-35, 39-40. But we are 

not concerned with whether diversity jurisdiction over TCPA 

claims makes sense as a matter of policy; rather, our task is to 

hew as closely as possible to the intent of Congress, as 

evidenced by the statutory terms its has chosen. See infra

Section III.F. 
14

IV.

I therefore respectfully dissent from the opinions of 

Judge Rendell and Chief Judge McKee. I would hold that 

Federal courts lack all jurisdiction -- under either § 1331 or § 

1332 -- to adjudicate claims asserted under 47 U.S.C. § 

227(b)(3). I would therefore affirm the District Court‟s 

decisions on the basis that no jurisdiction existed to entertain 

the various plaintiffs‟ claims. Thus, I do not address the 

issues that the majority opinion has discussed pertaining to

class actions and Shady Grove Orthopedic Associates, P.A. v. 

Allstate Insurance Co., 559 U.S. ___, 130 S.Ct. 1431 (2010).