Second Circuit Holds that Diversity Jurisdiction Is Available for Private Actions under the TCPA

The Second Circuit in Gottlieb v. Carnival Corp., --- F.3d ----, 2006 WL 257103 (2d Cir. Feb. 03, 2006), has held that although there is no federal question jurisdiction over private causes of action brought under the Telephone Consumer Protection Act, diversity jurisdiction remains available so long as the requirements of the federal diversity statute are satisfied. Here is an excerpt from the opinion:

This case presents the question of whether federal courts have diversity jurisdiction over private causes of action brought under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Plaintiff-appellant Sherman Gottlieb ("Gottlieb") appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.), entered on May 3, 2005, dismissing his claims under the TCPA for lack of subject matter jurisdiction and dismissing his parallel state law claims for lack of supplemental jurisdiction. Relying primarily on this Court's decision in Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432 (2d Cir.1998), where we held that Congress intended to divest the federal courts of federal question jurisdiction over private TCPA claims, the district court concluded that "jurisdiction over TCPA claims resides in the state courts exclusively" and that federal courts lack diversity jurisdiction over such claims. Gottlieb v. Carnival Corp., 367 F.Supp.2d 301, 307 (E.D.N.Y.2005). The district court reasoned that "it must be assumed that [the Second Circuit] used its words carefully and advisedly" when we stated in Foxhall that state courts have "exclusive jurisdiction" over TCPA claims. Id. at 309. Our ruling in Foxhall, however, related only to the existence of federal question jurisdiction over private TCPA claims; we did not consider in that case whether federal courts have diversity jurisdiction over such claims. We hold here that Congress did not divest the federal courts of diversity jurisdiction over private actions under the TCPA. We thus vacate the judgment of the district court and remand the case for further proceedings.