174 F. Supp. 3d 768
W.D.N.Y.2016Background
- Plaintiff filed a putative TCPA class action in federal court alleging Hilton made two unsolicited marketing calls to his cell phone in 2014, using an autodialer and calling a number on the national do-not-call registry.
- Claims: statutory damages ($500 per call) under 47 U.S.C. § 227(b) and § 227(c), with treble damages for willful/knowing violations; injunctive relief requested.
- Plaintiff died on December 19, 2015 before class certification and before substitution occurred.
- Plaintiff’s estate moved to substitute as plaintiff; Hilton opposed and the court considered whether TCPA claims survive a plaintiff’s death.
- Court analyzed whether federal or state law governs survivability and applied federal common law post-Mims, evaluating whether TCPA claims are penal or remedial for survivorship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal or state law governs survivability of private TCPA claims in federal court | Estate assumed state law governs survivability (citing pre-Mims precedent) | Hilton argued in the alternative, asked court to apply federal law if appropriate | Federal law governs in federal court under Mims; court applies federal common law |
| Whether TCPA statutory damages are penal or remedial for survivorship | Estate implicitly treated claim as surviving under state survivorship rules | Hilton argued TCPA damages are penal and thus abate at death | TCPA claims are primarily penal for survivorship purposes and abate at plaintiff’s death |
| Whether injunctive relief sought survives plaintiff’s death | Estate sought substitution to pursue injunctive/class relief | Hilton argued mootness and that no live plaintiff remains | Individual prospective injunction claims are moot due to plaintiff’s death; class injunctive claims also moot because no named plaintiff remained before class certification |
| Whether the case should be dismissed or substituted | Estate sought substitution of the decedent’s estate as plaintiff | Hilton opposed substitution and urged dismissal | Motion to substitute denied; pending motions denied as moot; case dismissed |
Key Cases Cited
- Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012) (federal courts have federal-question jurisdiction over private TCPA suits and federal law supplies substantive rules)
- US Fax Law Ctr., Inc. v. iHire, Inc., 476 F.3d 1112 (10th Cir. 2007) (pre-Mims discussion that federal courts applying substantive state law to TCPA claims under diversity)
- Giovanniello v. ALM Media, LLC, 726 F.3d 106 (2d Cir. 2013) (post-Mims: federal law provides substantive rules for TCPA claims in federal court)
- Estwick v. U.S. Air Shuttle, 950 F. Supp. 493 (E.D.N.Y. 1996) (framework for determining whether statutory claims are penal or remedial for survivorship)
- Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) (rule that if named plaintiff’s claims become moot before class certification, the entire action typically becomes moot)
- ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 85 (2d Cir. 2007) (mootness where plaintiff dies before resolution of prospective relief)