Giovanniello v. ALM Media, LLC
726 F.3d 106
2d Cir.2013Background
- Giovanniello alleges he received an unsolicited fax advertisement on January 28, 2004 and pursued multiple putative class actions against ALM Media in state and federal courts between 2004 and 2009.
- He filed and voluntarily dismissed state-court class suits in Connecticut (2004, 2004–2005) and later filed a putative class action in S.D.N.Y. (2007) that was dismissed for lack of subject-matter jurisdiction because New York law then barred the asserted class remedy. He appealed but the appeal was dismissed.
- On September 8, 2009 Giovanniello filed a fourth suit in the District of Connecticut asserting TCPA claims (individual and class) and invoking federal-question jurisdiction.
- The district court dismissed the 2009 suit as time-barred even assuming the 4-year federal limitations period and tolling during prior proceedings.
- On remand from the Supreme Court (in light of Mims), the Second Circuit reevaluated whether the federal 4-year catch-all statute (28 U.S.C. § 1658(a)) governs TCPA claims in federal court and whether American Pipe tolling extends beyond a district court’s denial of class status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal §1658(a) 4-year limitations period governs TCPA claims in federal court or whether state limitations (Conn.) apply via §227(b)(3) "if otherwise permitted" clause | Mims supports application of federal §1658(a); TCPA is a federal statute supplying substantive rules so federal limitations apply | §227(b)(3)’s "if otherwise permitted" shows Congress intended state law (including state SOL) to control TCPA claims | Federal §1658(a) governs TCPA claims in federal court; §227(b)(3) does not displace §1658(a) post-Mims |
| Scope of American Pipe tolling: Does tolling continue past district court denial of class status (through reconsideration or appeal)? | Tolling should continue through reconsideration and appeal, which would make the 2009 filing timely | Tolling ends when district court denies class status; individual members must act then to preserve claims | American Pipe tolling ends upon district court denial of class certification; tolling does not extend through later reconsideration or appeal |
| Effect of Mims on prior Second Circuit precedent (Foxhall, Bonime, Holster) interpreting §227(b)(3) | Mims undermines those precedents; federal-question jurisdiction and federal substantive law for TCPA mean state-law limitations shouldn’t bind federal courts | Prior Second Circuit interpretations remained persuasive to require state-law content for TCPA in federal court | Mims abrogates Foxhall and undermines Bonime/Holster to the extent they treated §227(b)(3) as displacing federal substantive law and federal SOL |
| Timeliness of Giovanniello’s September 8, 2009 filing after applying federal SOL and tolling rules | Tolling during earlier proceedings plus tolling through reconsideration/appeal makes filing timely | Even with tolling only through district-court proceedings, filing is untimely | Filing was 30 days too late under §1658(a) because tolling stopped at the S.D.N.Y. denial; dismissal affirmed |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (federal-question jurisdiction exists for private TCPA claims and TCPA supplies substantive federal rules)
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (commencement of class action tolls statute of limitations for putative class members during pendency of class-certification)
- Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) (tolling remains until denial of class certification; then members must act to preserve claims)
- Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) (scope of §1658 and when a cause of action arises under a post-1990 Act)
- Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008) (prior Second Circuit view treating §227(b)(3) as an express limitation imposing state-law controls)
- Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010) (applied Bonime reasoning to interpret §227(b)(3))
- Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (view of §227(b)(3) as permissive forum clause; federal courts may adjudicate TCPA claims)
- Korwek v. Hunt, 827 F.2d 874 (2d Cir. 1987) (rule on serial class filings referenced for tolling and class-action procedure)