Charvat v. NMP, LLC
2011 U.S. App. LEXIS 18081
| 6th Cir. | 2011Background
- Charvat alleges that NMP, LLC and Media Synergy Group, LLC placed 33 telemarketing calls to his home in 2008 seeking NASCAR Membership Club enrollment.
- Calls included one prerecorded message, two live calls, and 30 additional prerecorded messages; Charvat asked to be placed on a do-not-call list during the third call.
- Charvat filed suit in the Southern District of Ohio asserting TCPA, OCSPA, and later a state-law invasion-of-privacy claim.
- The district court dismissed for lack of subject-matter jurisdiction, ruling no federal-question jurisdiction and insufficient diversity damages.
- Charvat appeals, arguing federal-question jurisdiction exists under the TCPA and that damages exceed $75,000 for diversity purposes.
- The Sixth Circuit reverses, holding federal-question jurisdiction exists and Charvat’s damages exceed the diversity-threshold, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does TCPA create federal-question jurisdiction for private claims? | Charvat: TCPA private action creates federal-question jurisdiction. | NMP/Media Synergy: TCPA private right is in state court; no federal-question jurisdiction. | Yes; we hold federal-question jurisdiction exists under TCPA. |
| Is there diversity jurisdiction given the amount in controversy? | Charvat's combined federal and state claims exceed $75,000. | Damages do not meet the amount requirement when limited to TCPA/OCSPA damages per district court reading. | Yes; Charvat’s claims exceed $75,000; diversity jurisdiction exists. |
| May Charvat recover damages under both §227(b) and §227(c) for the same calls? | Charvat should be eligible for damages under both provisions for distinct statutory damages. | Not addressed by the parties; district court did not consider it. | The majority discusses potential overlap but remands for correction; not resolved on record here. |
| Are Charvat's OCSPA claims viable and how are damages counted? | OCSPA violations arise from TCPA violations and related regulations; seeks multiple statutory damages. | Culbreath v. Golding Enterprises limits OCSPA liability for mere TCPA violation absent deception/unfairness. | OCSPA claims viable for separate injuries; three distinct damages awards permitted; total damages align with jurisdictional threshold. |
| Does Charvat have a viable invasion-of-privacy claim? | Repeated unsolicited calls after do-not-call requests justify intrusion claim. | Unsolicited calls are not sufficiently outrageous to support intrusion claim as a matter of law. | The district court erred; the calls could support invasion-of-privacy; damages may count toward jurisdiction. |
Key Cases Cited
- EchoStar Satellite, LLC v. Brighthouse Networks, LLC, 630 F.3d 459 (6th Cir. 2010) (recognizes federal-question jurisdiction for private TCPA claims)
- GVN Michigan, Inc. v. Charvat, 561 F.3d 623 (6th Cir. 2009) (damages under TCPA per-call; supports aggregation for diversity analysis)
- Ryan v. Ohio, 858 N.E.2d 845 (Ohio Ct. App. 2006) (distinguishes separate injuries for OCSPA damages when multiple TCPA violations occur)
- Irvine v. Akron Beacon Journal, 770 N.E.2d 1105 (Ohio Ct. App. 2002) (telephone-calls threshold for invasion-of-privacy; frequency matters)
- Housh v. Peth, 133 N.E.2d 340 (Ohio 1956) (invasion-of-privacy framework in Ohio)
- Sustin v. Fee, 431 N.E.2d 992 (Ohio 1982) (Restatement-based test for invasion of privacy in Ohio)
- Crye v. Smolak, 674 N.E.2d 779 (Ohio Ct. App. 1996) (multiple TCPA-related OCSPA violations may yield multiple damages)
- Culbreath v. Golding Enterprises, L.L.C., 114 Ohio St.3d 357 (Ohio 2007) (TCPA telemarketing not automatically OCSPA deceptive without deception/unfairness)