Charvat v. NMP, LLC

CHARVAT, Philip Plaintiff- J.

Appellant,

NMP, LLC, a Delaware Limited Liabili-

ty Synergy Group, Company; Media Liability

LLC, Virginia Limited Defendants-Appellees.

Company,

No. 10-3390. Appeals,

United States Court

Sixth Circuit.

Aug. сalls to thirty-three telemarketing Ferron, placed A. Lisa BRIEF: John W. ON Columbus, Associates, selling him a purpose Wafer, & his home for Ferron Hadden, B. Ohio, Membership James Appellant. membership in the NASCAR McClure, Gallon, Anthony R. Port- B. Eric prerecorded call was a The first Club. LLP, er, & Arthur Colum- Wright, Morris the next two calls were message, voice Ohio, bus, Appellees. for remaining agent. a live placed messages. thirty prerecorded calls were BATCHELDER, Judge; Chief Before: call, during the third alleges that Charvat MOORE, Judges. Circuit GUY and place agent Defendants’ live he asked MOORE, J., opinion telephone of the number delivered name and residential his GUY, J., court, joined. in which do-not-call list. on Defendants’ 455-56), BATCHELDER, (pp. C.J. 18, 2009, filed suit On March Charvat concurring opinion a separate delivered NMP, in the States against LLC United judgment. for the Southern District of District Court TCPA, Ohio, alleging OPINION violations OCSPA, Rev. and the Ohio U.S.C. MOORE, Circuit KAREN NELSON Ann. 1345.02. He amended Code Judge. 3, 2009, complaint April to add Media alleg- Plaintiff-Appellant Philip Charvat as a defendant. De- Synergy Group, LLC NMP, Defendants-Appellees that LLC es fendants filed a motion to dismiss Char- Synergy Group, (together, and Media LLC Complaint pursuant Amended vat’s First “Defendants”) thirty-three unsolic- placed 12(b)(1) Procedure to Federal Rule Civil telemarketing calls to his home over ited jurisdic- subject-matter lack of for federal alleges He period three-month court, permission tion. With of the district Telephone that these calls violated the Charvat then filed a Second Amended (“TCPA”), 47 Protection Act Consumer Complaint to add a state-law claim of inva- and the Ohio Consumer privacy. sion of Defendants filed motion (“OCSPA”), Act Rev. Sales Practices Ohio to dismiss Charvat’s Second Amended alleges Ann. also Code 1345.02. He again arguing lack of federal Complaint, privacy. claim of invasion of state-law jurisdiction Rule subject-matter appeals now district court’s 12(b)(1) asserting but also that the state- to dismiss the case for lack of decision subject-matter jurisdiction. privacy Because the claim for invasion of fails to law (1) 12(b)(6). concluding court district erred Rule state a claim under federal-question juris- federal courts lack granted The district court Defendants’ (2) claims, and diction over TCPA dismiss, concluding motion to damages exceed Charvat’s do not subject-matter juris- court lacked federal $75,000 diversity jurisdic- required timely now appealed diction. Charvat claims, tion over state-law we Charvat’s challenges the district court’s conclusions judgment the district REVERSE (1) jurisdic- it federal-question lacked proceed- court and REMAND for further arising under tion over his claims ings opinion. consistent with this (2) TCPA, jurisdiction diversity it lacked I. & PROCEDURAL BACKGROUND $75,000 his claims do not because meet

HISTORY amount-in-controversy requirement, (3) priva- his state-law claim invasion alleges September from 10, 2008, cy fails as a matter of law. 2008 to December Defendants (A) II. ANALYSIS an аction based on a violation of this subsection or the pre- Statutory A. Overview enjoin scribed under this subsection to Telephone 1. The Consumer Protec- violation, such tion Act (B) an action to recover for actual monetary violation, loss from such a 1991, Congress In enacted the TCPA “to to receive each such privacy interests of residential protect violation, greater, whichever is by placing telephone subscribers restric- (C) unsolicited, both such actions. tions on automated calls to the home and to facilitate inter- If the court finds that the defendant by restricting state commerce certain uses willfully knowingly or violated this sub- ... and automatic regulations prescribed of facsimile machines section or the un- 102-178, subsection, S.Rep. may, dialers.” No. re- der this the' court in its 1968; discretion, printed in 1991 U.S.C.C.A.N. increase the amount of the equal award to an amount Telephone see Consumer Prоtection Act of to not more than L. 3 times the amount available under Pub. 105 Stat. 2394 (B) (current 227). subparagraph paragraph. § of this version at 47 U.S.C. 227(b)(3). § 47 U.S.C. contains a TCPA number restric- (d) telephone tions on the use of automated Subsection of the TCPA contains equipment, including prohibiting the “initi- procedural and “[technical standards” for any telephone any call to resi- such telephone equipment of] automated and atfion telephone using dential line an artificial or instructs the “prescribe FCC to technical prerecorded message procedural systems voice to deliver a and standards for are to prior express any prere- without the consent of the used transmit artificial or 227(b)(1)(B). message § corded voice via party.” telephone” called 47 U.S.C. and (b) to require- include certain listed minimum provides Subsection the Federal (“FCC”) 227(d)(3); § ments. see Communications Commission 64.1200(b). § C.F.R. prescribe regulatiоns “shall to implement the requirements subsection.” [that] In addition to the restrictions on auto- 227(b)(2). § Accordingly, pro- the FCC telephone mated in- equipment, TCPA mulgated regulations governing automated structs to regulations the FCC issue “con- calls, an artifi- telephone messages using cerning protect need to residential voice, prerecorded cial or and advertise- telephone privacy rights subscribers’ to telephone ments sent to ma- facsimile receiving telephone avoid to solicitations 64.1200(a).1 § chines. 47 C.F.R. See 227(c)(1). they object.” § which 47 U.S.C. (b) express Subsection also includes an Accordingly, issued FCC private right statutory of action and dam- prohibiting “person[s] or entities] [from] ages provision, which states: initiat[ing] any telemarketing pur- call for person entity may,

A or if otherwise poses telephone to a residential subscriber by permitted the laws or rules of court person entity unless or has instituted [thе] State, bring appropriate of a in an court procedures [certain for maintain- listed] of that ing” State— a do-not-call list. 47 C.F.R. regulation, applicable Implementing Telephone 1. The 47 C.F.R. tions Consumer 64.1200, § was amended in November Reg. Protection Act Fed. changes impact but the do not (Dec. 14, subsections Regula- relevant to this case. See Rules 64.1200(d). here, equal to not more regula- award to an amount Relevant (1) pro- telemarketer than times the amount available under require tions caller, (B) of the individual paragraph. vide “the name subparagraph this entity or on whose person name of the 227(c)(5). made, a being tele- behalf the call is additionally provides an en- The TCPA or address at which phone number attorneys mechanism for state forcement contacted,” entity may or be person bring against persons actions general (2) 64.1200(d)(4); maintain a do-not-call of calls еngaging pattern practice in a (3) 64.1200(d)(6); list, per- honor a of the Act or or transmissions called, request not be son’s regulations: its (c) 64.1200(d)(3). Subsection attorney general Whenever private right of ac- TCPA also contains State, agency designated or an official or tion, which states: State, by to believe that has reason more than person A who has received any person engaged engaging has or is any 12-month telephone one call within pattern practice in a entity on behalf of the same period to residents calls or other transmissions regulations prescribed in violation of the of that State in violation of this section may, if otherwise under this subsection regulations prescribed or under this the court permitted by the laws or rules of section, may bring the a civil ac- State bring appropriate in an court of State enjoin tion on of its residents to behalf of that State— calls, actual such an action to recover for (A) an on a violation of action based monetary loss or receive in dam- this regulations prescribed under violation, ages for each or both such violation, enjoin subsection to such If actions. the court finds defendant (B) an actual action to recover for willfully reg- knowingly or violated such violation, monetary loss from such a or discretion, ulations, may, the court in its in up to receive to $500 increase the amount of the award to an violation, great- each such whichever is than equal amount to not more 3 times er, or preced- the amount available under the (C) actions. both such ing sentence. any in It shall be an affirmative defense brought paragraph 227(f)(1) (2008).2 action under this § The federal and the defendant has established jurisdiction district courts have exclusive care, implemented, with due reasonable 227(f)(2)(2008). § over such actions. procеdures effectively practices and 2. The Prac- Ohio Consumer Sales in viola- prevent telephone solicitations Act tices regulations prescribed tion of the under provides part The OCSPA in relevant If this subsection. the court finds supplier shall commit an unfair “[n]o willfully knowingly the defendant or vio- in connection deceptive practice act or prescribed lated subsection, with a consumer transaction.” Ohio Rev. may, this court in its 1345.02(A). discretion, § the amount of the Code Ann. The statute lists increase (e), (f), (g) 2. The TCPA amended in 2010 ed subsections as subsections was 2009, (h), (f), L. (g), respectively. apply Truth in Caller ID Act of Pub. No. Id. We 111-331, 124 Stat. 3572. The substance of when version of the statute effect purposes amendment is not relevant placed calls Defendants to Charvat. decision, redesignat- this but the amendment

445 Tickets, Inc., deceptive, 2004 WL practices deemed acts (6th Cir.2004) 1345.02(B), order), Attorney (unpublished but the Ohio Gen- 3239533 regulations defining mаy also issue circ eral and the decisions of six of our sister OCSPA, practices uits,3 that violate acts the district court concluded that 1345.05(B)(2). Additionally, the Ohio plain language “the of the TCPA creates a Attorney must make available for General private right of action state —not feder inspection decisions of Ohio courts public (Dist. Op. al—court.” R.53 Ct. deeming practices or acts to violate the urges apply unpub us not to 1345.05(A)(3). A consumer OCSPA. binding lished—and therefore not —deci his actual dam- may recover three times sion Durir-Rite and rather to follow the $200, greater, any ages or whichever is Seventh Circuit’s decision Brill v. Coun unfair, previously act that was declared Loans, Inc., trywide Home F.3d 446 regula- in a deceptive, or unconscionable (7th Cir.2005), then-judge Alito’s dis public tion or decision made available for ErieNet, Net, Inc., Velocity sent in Inc. v. 1345.09(B). inspection. Additionally, if (3d Cir.1998). These knowingly committed an supplier “the has оpinions analyze the Supreme Court’s deci Chapter practice act or that violates” Products, sions in & Metal Grable Sons “a the court award reasonable attor- v. Engineering Inc. Darue & Manufactur reasonably ney’s fee limited to the work ing, 545 U.S. 125 S.Ct. 1345.09(F). performed.” ‍‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌‌‌‌‌​​​​‌​‌​‌‌‌‌‌‌​‌​​​​‍(2005), Levitt, L.Ed.2d 257 Tafflin 107 L.Ed.2d U.S. S.Ct. Federal-Question B. Jurisdiction Un- (1990), and Breuer v. Jim’s Concrete of Telephone Pro- der the Consumer Brevard, Inc., 691,123 1882, 538 U.S. S.Ct. tection Act (2003), 155 L.Ed.2d 923 and conclude that argues first that the dis federal-question jurisdiction there is concluding trict court erred in that it Brill, 450-52; 427 at TCPA.4 See F.3d jurisdiction, federal-question lacked 28 ErieNet, (Alito, J., 156 at 521-23 F.3d 1331, un arising U.S.C. over his claims dissenting). But see Mims v. Arrow Fin. der the TCPA. We review de novo the (11th Servs., LLC, 920, 421 921 Fed.Appx. complaint of a district court’s dismissal (conclud Cir.2010) decision) (unpublished 12(b)(1) lack of sub pursuant to Rule ing that and Breuer do not over Grable ject-matter jurisdiction. Lewis v. Whirl precedent turn its Nicholson v. Hooters (6th 484, pool Corp., 487 630 F.3d Cir. Inc., (11th 1287, Augusta, 136 F.3d 1289 2011). - Cir.1998)), petition granted, cert. U.S. -, 3063,

Relying unpublished on our decision in 131 S.Ct. 180 L.Ed.2d 884 Construction, v. Amazing Dun-Ritе Inc. (2011). 911, Lanier, (9th Murphey argument v. 204 F.3d 915 4. There has been some Cir.2000); Realty Offices, Law Inc. v. Foxhall federal-ques- Seventh Circuit’s discussion of Ltd., Servs., 156 F.3d Telecomms. Premium 432, See, jurisdiction e.g., tion in Brill is dicta. ErieNet, (2d Cir.1998); Inc. v. Veloc 435 5, Opposition Brief in at Mims v. Arrow Fin. Net, Inc., 513, (3d Cir.1998); ity 156 F.3d 519 Servs., LLC, (U.S. 27, 2011). May No. 10-1195 Inc., Augusta, 136 Nicholson v. Hooters But, Sawyer Heating v. Atlas & Sheet Metal 1287, (11th Cir.1998), F.3d 1289 as modified Inc., Works, (7th Cir.2011), 642 F.3d 560 (11th Cir.1998); reh’rg, Chair 140 F.3d 898 Seventh Circuit reaffirmed its conclusion in Corp., King, 131 F.3d Inc. v. Houston Cellular federal-question jurisdiction there is Brill that 507, (5th 1997); Cir. Int’l Sci. & Tech. 514 Id. at under the TCPA. Commc’ns, Inc., Inst., Inc. v. Inacom 106 F.3d 1146, (4th 1997). 1156 Cir.

446 jurisdiction pursuant of federal courts over over these state-law claims to 28 subject been the private TCPA claims has 1367, supplemental jurisdiction U.S.C. See, e.g., of much debate. Landsman & discretionary, mandatory. not See Gamel Assocs., Funk v. 640 PC Skinder-Strauss Cincinnati, 949, City v. 625 F.3d 951 (3d Cir.2011) (resulting in F.3d 72 three Cir.2010). (6th juris- If there is diversity jurisdic- separate on the issue of opinions diction, the district court not decline tion5), granted, banc 650 reh’g en F.3d to decide the state-law claims. (3d 17, May 2011 WL 1879624 Cir. 2011). briefing After in this сase conclud- We therefore consider whether ed, however, panel another of this court in concluding district court erred that the agreed with Charvat held federal- in controversy amount does not “exceed[ ] jurisdiction exists under question $75,000, or value of sum exclusive of Satellite, TCPA. Charvat v. EchoStar interest and costs.” 28 1332.6 (6th LLC, Cir.2010); 630 F.3d see Lewis, review this conclusion de novo. We Assocs., Saloon, also APB Inc. v. Bronco’s alleges 630 F.3d 487. Charvat Inc., 499, 500, Fed.Appx. jointly severally Defendants are liable (6th 2011 WL at *1 Cir. June 2011) decision), multiple brought for each of the claims (unpublished reh’g and reh’g en banc denied. are bound We pursuant to the TCPA and Ohio law. R.20 EchoStar “unless an inconsistent decision (2d Compl. Am. ag thus can We Supreme United States Court re- gregate claims Charvat’s to determine quires modification of or this the decision $75,000. whether the total exceeds sitting Court en prior banc overrules the Inc., Corp. Spaulding LM Ins. Enters. decision.” Sеc’y Salmi v. Health & (7th (discuss Cir.2008) 533 F.3d (6th Servs., Human 774 F.2d aggregation of ing against multiple claims Cir.1985). Therefore, we conclude that the defendants); Golden ex rel. Golden v. concluding district court erred in that fed- Golden, (3d n. Cir. eral lack federal-question jurisdic- courts 2004) (same), abrogated grounds on other tion over claims. TCPA Marshall, 293, by Marshall v. 547 U.S. 1735, 126 S.Ct. 164 L.Ed.2d 480 Diversity C. Jurisdiction (2006); 14AA Wright, Charles Alan ‍‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌‌‌‌‌​​​​‌​‌​‌‌‌‌‌‌​‌​​​​‍Arthur appeals Charvat also the district R. Cooper, Miller & Edward H. Federal court’s that it determination lacked diver (4th § Practice & Procedure ed. sity jurisdiction over his claims. Charvat 2011) (indicating that claims based on di alleges multiple state-law claims under the versity jurisdiction can aggregated be with OCSPA and a claim of state-law invasion claims federal-question jurisdic based on privacy. Although the district court tion). may jurisdiction supplemental exercise J., (McKee, Judge majority, concurring). Judge Rendell wrote for the con- Garth dis- cluding diversity ju- that federal courts have sented, concluding that federal courts have private risdiction over TCPA claims but reaf- diversity federal-question jurisdic- neither nor firming the Third Circuit's decision in ErieNet private tion over TCPA claims. Id. at 101 federal-ques- that federal have courts do not (Garth, J., dissenting). jurisdiction tion over TCPA claims. Landsman, Judge 640 F.3d at 78 n. 6. challenged 6. Defendants have not Charvat's Judge McKee concurred in Rendell's diversi- complete diversity assertion that there is be- ty-jurisdiction analysis argued but that Erie- parties, § tween the 1332. See Net is incorrect and that federal courts also ¶¶ (2d 1-4, 7). federal-question jurisdiction. Compl. have Id. at 95 R.20 Am. (1) prerecorded used a voice to deliv- Diversity jurisdiction is defeated dants “ certainty message legal prior express to a er a without his ‘appear[s] it

when consent, than in really claim is for less the violation of that the ” 227(b)(3)(A), v. in thirty-one § amount.’ Charvat GVN of the calls jurisdictional (6th Mich., Inc., (Count (2) One); Cir. provide 561 F.3d failed to 2009) Mercury Indem. (quoting entity St. Paul on person name оf the whose Co., made, v. Red Cab 303 U.S. being Co. the call was behalf (1938)). “con 64.1200(d)(4), 82 L.Ed. 845 We thirty-one § S.Ct. of 47 C.F.R. complaint (Count (3) in a the amount Two); sider of the calls failed to for lack of complaint not dismiss a and [do] provide number or address it subject jurisdiction ap matter unless person entity on which whose plaintiff legal certainty to a that the pears being may behalf the call was made be jurisdiction faith cannot claim the good contacted, in violation of 47 C.F.R. v. Har al amount.” Mass. Cas. Ins. Co. (Count 64.1200(d)(4), in the first call (6th Cir.1996) (inter mon, 415, 416 88 F.3d (4) Three); failed to maintain record of omitted). marks quotation nal previous request placed to be on the list, do-not-call in violation of 47 C.F.R. certainty that legal It is a 64.1200(d)(6), thirty of the calls that cannot recover (Count (5) Seven); and failed to honor his applicable when the law he or she seeks previous request, do-not-call in violation of Mich., damages. or bars the GVN limits 64.1200(d)(3), thirty 47 C.F.R. respect, In this we re 561 F.3d (Count Eight). argues calls re view the district court’s conclusions Defendants committed these violations statutory damages permitted garding the willfully knowingly therefore OCSPA, as the TCPA and the well statutory damages he is entitled to treble attorney fees recoverable under in each call. each violation circum Additionally, some OCSPA. alleges damages totaling thus stances, pleaded claim not be used $184,500under the TCPA. amount-in-controversy re satisfy Applying “it our decision in Michi- quirement if clear from the face of GVN [is] concluded that gan, the claim fails as a which we pleadings” 227(c)(5)’s damages provision “unambig- Saglioccolo Eagle matter of law. Ins. (6th Cir.1997) Co., uously statutory damages allows for 232-33 omitted). (internal basis,” quotation only per-call In 561 F.3d at marks 227(b)(3)’s we review the court’s district court concluded that respect, this district for calls like- damage provision conclusion that failed to state a automated Charvat recovery dаmages per claim invasion of under Ohio law wise limits to one privacy recognized district court in if court had decided it under call. The the district on the pursuant Michigan, motion to dismiss to GVN we relied word Defendants’ 12(b)(6). in the sentence in beginning Hamdi ex rel. Hamdi “call” Rule See (6th 227(c)(5), § that “each 619 n. 3 to conclude such Napolitano, F.3d Indus., Inc., Cir.2010); provides damages per- for on a Rogers v. Stratton violation” (6th Cir.1986). basis, at and that call 561 F.3d 227(b)(3)

§ does not include the word Damages Under the TCPA 227(c)(5) (“A person § Compare “call.” telephone than one who has received more of violations alleges five counts Charvat by any period within 12-month or thirty-three call the TCPA from the entity in of the behalf of the same telephone alleges calls. He that Defen- “regulations subsec- focus on the tele- regulations prescribed under this phone ... to call itself.” 561 may bring tion ... ... an action F.3d 632. “The regulations’ in for ‘violation of the up damages tо each is receive therefore $500 227(b)(3) (“A violation____”), § the initiation of phone such with call without entity may having implemented ... ... an person bring proce- or the minimum action ... to receive for dures.” Id. Charvat is thus limited to $500 ”). $46,500 violation.... of damages each such district for violation of these regulations: thirty- court concluded that the textual difference for each of the interpret telephone alleges the sections one calls that is not a reason he Defen- 227(b)(3) § differently. having implement- It noted that is dants initiated without but minimum telephone procedures not limited to calls also en- ed the for maintain- transmissions, ing fax and conclud- a do-not-call compasses list. intend to “Congress pro- ed that did not question The more difficult is whether person

vide a to a receives an windfall who statutory damages Charvat recover automated call instead of a live call.” R.53 under both automated-call subseсtion (Dist. 9) Cong. Op. (citing Ct. Rec. TCPA, 227(b), § 47 U.S.C. and the 1991) S16,204, S16,205 (daily ed. Nov. subsection, do-not-call-list (statement Hollings)). of Sen. 227(c) (as § implemented in 47 C.F.R. 64.1200(d)). matter, § As an initial under our decision We look first to the statu- Michigan, tory language. GVN limited to The fact that the statute collecting statutory damages per-call separate on a includes provisions statutory (b) (c) multiple specifically, damages for his sug- basis subsections claims— Two, Three, Seven, Eight— gests Counts that a could recover under brought pursuant to the re- both. Chung See Reichenbach v. Hold- LLC, minimum quiring procedures ings, certain 159 Ohio App.3d 823 N.E.2d (2004).9 (b) maintaining a do-not-call list. 32-34 permits Subsection 227(c); 64.1200(d). § § In “an C.F.R. GVN action based on a violation this Michigan, introductory we read the lan- regulations prescribed subsection or the 64.1200(d)7 subsection,” 227(b)(3)(A)(em- guage of 47 C.F.R. con- under this (c) junction added),10 phases with the listed “minimum stan- permits and subsection procedures8 dards” for these an “telephone conclude action based on a call ... Mich., person entity any 7. "No shall initiate call federal TCPA.” GVN 561 F.3d at 630 n. telemarketing purposes to a residential person subscriber unless such entity procedures has instituted for maintain- recognize Michigan, 10.We that in GVN we ing persons request a list of who not to re- injunctive-relief prong declined to look to the telemarketing ceive calls made or on be- 227(c)(5) interpret damages provi- person entity.” half of that 47 C.F.R. sion, looking introductory instead at the lan- 64.1200(d). guage. 561 F.3d at 631-32. Unlike 227(c)(5), however, introductory lan- 8. The “minimum standards” include the 227(b)(3) guage provides §of no relevant lan- alleges— various violations guage indicating phrase to what the "each telemarketers, identification of sellers and lists, statutory-damages such violation” in the maintenance of and do-not-call honor- 227(b)(3) prong only language § ing requests refers. The in to be included on such lists—as provisions regarding maintaining phrase well as to which the "each a such violation” policy training (A)’s written damages do-not-call and of prong prong could refer is 64.1200(d)(l)-(7). personnel. § 47 C.F.R. regulations "violation of this subsection or the prescribed language. . under this subsection” course, 9. Of we "are not bound decisions interpreting of the state courts of Ohio maintaining for a do-not- procedures un- mum prescribed of violation 227(c)(5) harm subsection,” (emphasis as well as the additional of § call list der this added). private- Recovery of Additionally, being the two the call automated.11 signifi- provisions separate provisions contain the two right-of-action damages for differences, indicating in set- upset Congress’s cant textual not balance does “ to be treated provisions are distinct they ‘fair to the consumer ting damages both ” (c), re- which Mich., Subsection independently. See and the telemarketer.’ GVN list, maintenance of a do-not-call quires the Cong. (quoting at 632 n. 8 pеrson that a requirement has a threshold S16,204, S16,205 (daily ed. Nov. Rec. telephone call more than one “receive[] 1991) (statement Hollings)). of Sen. by or on be- any period 12-month within per therefore conclude a We entity.” the same half of of statutory damages recover son 227(c)(5). (c)’s private-right- § Subsection knowing for a willful or an affir- also includes provision of-action requirements, automated-call estab- if “the defendant has mative defense 227(b)(3), § for a willful or and $1500 care, with due implemented, and lished re knowing violation of the do-not-call-list to ef- practices procedures and reasonable 227(c)(5) if quirements, both vio —even solicitations fectively prevent telephone telephone occurred in the same call. lations un- regulations prescribed violation of willfully - alleges that Defendants (c) provisions Id. These ].” der [subsection (b)’s subsection auto knowingly violated sub- in the automated-сall appear do not requirements and subsection mated-call 227(b)(3). section, § (c)’s thirty- requirements do-not-call-list subsections, moreover, two Thus, telephone one of the calls. Char- (b) im target different harms: Subsection thirty-one maximum for the vat’s automated restrictions on poses greater alleges calls that he violated telephone transmissions, which calls and telephone $93,000. requirements total both sets of a nuisance found to be “more Congress Finally, alleges we note that Charvat than calls privacy invasion of greater statutory damages to for that he is entitled 102- persons.” S.Rep. ‘live’ placed by regula- the violations of the do-not-call-list reprinted 64.1200(d), tions, pursuant 47 C.F.R. (c) 1968, 1972. Subsection U.S.C.C.A.N. (b)’s damages provision, subsection in 47 accompanying regulations its 227(b)(3). (2d Compl. Am. R.20 64.1200(d) pro minimum impose C.F.R. ¶¶ 52, 55, An action based on a list maintaining for a do-not-call cedures call that violates the do-not-call- cаlls—live or automated— apply to all however, provided regulations, list to res telemarketing purposes initiated (c) §of 227. Technical and subsection By enact telephone subscribers. idential specific to automated procedural standards private-right-of-action provi ing separate 227(d) accompa- §in calls are included sions, including statutory damages each 64.1200(b), nying regulation C.F.R. its intent Congress evidenced provision, right of provide private do not which be able to recover person that a provision. statutory-damages mini- or a action failure institute telemarketer’s Regula- Rules and any In the Matter to make de- action.” "decline[d] 11. The FCC has specific Telephone contours of the Consumer Implementing termination about the tions action,” right because it TCPA’s Red. Act 18 F.C.C. Protection Congress, not the Commis- it is for (2003). "believes sion, right clarify this either or limit argue time on allegеd damages appeal, Defendants now should have that, pursuant pursuant violations to Supreme the do-not-call the Ohio 227(c)(5) (b)(3); remand, § instead of on ‍‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌‌‌‌‌​​​​‌​‌​‌‌‌‌‌‌​‌​​​​‍Golding Court’s decision in Culbreath v. permit district court shall Charvat to L.L.C., Enterprises, 114 Ohio St.3d technical, complaint his for this amend (2007), an “simply sending 872 N.E.2d 284 non-prejudicial pleading error. See Fed. unsolicited communication violates 15(a)(2). R.Civ.P. not, law, a matter of TCPA does consti- tute a Br. Appellee violation of CSPA.” Damages Under OCSPA Rather, un- argue, at 10. Defendants alleges Charvat also six counts of solicited call telephone deceptive, must be thirty- of the from the violations OCSPA unfair, or ar- unconscionable. Defendants telephone In five par three calls. counts gue that has not to the five counts allel TCPA outlined unfair, telephone or deceptive, calls were above, alleges he that each violation of the unconscionable. is аlso a violation of Ohio TCPA Revised Culbreath, that, agree We under 1345.02(A) (Counts Four, § Five, Code delivering prerecorded message without Nine, Ten, Six, respectively). He also consent, prior express in violation calls, alleges thirty in of the Defen 227(b)(3)(A), not, itself, § by beginning failed to state at the of the dants violation of the OCSPA. See 872 N.E.2d sale, purpose that the to make a in call was are, course, at 291. We bound provisions violation the disclosure Supreme Ohio (“O.A.C.”) interpretation Court’s Code Ohio Administrative 109:4-3-ll(A)(l)12 Ohio law. The earlier Ohio Court of Com § 16 C.F.R. and/or 310.4(d)(2),13 mon § Pleas cases that and therefore violation Charvat cites in 1345.02(A) (Count insufficient, § Revised complaint Ohio Code are Cul light of Eleven). breath, He claims that he is entitled to support Charvat’s claim OCSPA statutory damages of for each viola 227(b)(3)(A). relating § to 47 U.S.C. See call, $30,600. totaling in each ¶ tion (2d See n.2) Compl. R.20 Am. (citing Com 1345.09(B). § Ohio Rev.Code Ann. (Ohio Ltd., v. EIP poli No. at 1-2 2002) (Ohio July Att’y Ct. C.P. Gen. rely OCSPA claims Charvat’s his as- (“PIF”) 08514); Insp. Pub. File No. Cham TCPA, sertion of the violations O.A.C. Inc., Delivery, bers v. R & C No. 109:4-3-ll(A)(l), 16 C.F.R. (Ohio 2002) (PIF 310.4(d)(2), May Ct. C.P. are also violations of Ohio 2088)). 1345.02(A). (2d Four, therefore, Revised R.20 Count fails Am. Code ¶¶ n.3). n.2, Compl. For state a claim the first OCSPA. states, 109:4-3-11(A)(1) states, 310.4(d)(2) 12.O.A.C. 13. 16 C.F.R. deceptive practice It shall be a act or prac- telemarketing It is an abusive act or connection with a consumer transaction in- tice and a this Rule for a tele- volving any sup- direct sale solicitation for a marketer in an or outbound call [sjolicit plier to ... clearly, a sale without upsell pur- internal or external to induce the affirmatively, expressly revealing at the goods chase of or services to fail to disclose supplier initially time the contacts the con- truthfully, promptly, and in a con- clear and consumer, prospective sumer and before spicuous person receiving to the manner statement, making any asking any ques- other call, purpose ... sell [t]hat call is to tion, entering the residence of the consum- goods or services. consumer, prospective purpose er that the sale, stating Attorney inspec- of the contact is public to effect The Ohio General’s general goods sup- http://www.opif.ag. terms the or services the tion file is available plier has to offer.... state.oh.us.

451 (S.D.Ohio 2008), However, grounds, dur- on other alleges also Charvat aff'd 623). calls, Mich., believe, failed Defendants 561 F.3d We ing telephone GVN num- provide however, their name and a limiting recovery per- that address, a record ber or failed maintain is too narrow of a view of the call basis placed on request of to be previous his have limited the re OCSPA. Ohio courts list, and to honor his do-not-call failed covery statutory when multiple of request. As the cases previous do-not-call transaction violations occur the same indicate, complaint cited in his by Charvat injury. cause the same See Charvat v. ¶ (2d n.2), courts Compl. R.20 Am. 57 Ohio 78, 845, N.E.2d Ryan, App.3d 168 Ohio 858 these have found that violations (2006), grounds, 856 overruled on other or deceptive practices TCPA are unfair 394, (2007); 765 116 St.3d 879 N.E.2d Ohio v. Cont’l under the OCSPA. See Charvat Howard, 77654, v. No. 2002 Ferrari WL Inc., 99CVH12-10225, Servs., No. Mortg. (Ohio 1500414, July 11, Ct.App. at *7 (Ohio 1270183, 2002 at *5 Ct.C.P. June WL Smolak, 2002); Crye v. 110 App.3d Ohio 1882). 2000) (PIF 1, also No. Charvat 504, 779, (1996); N.E.2d 674 784-85 Couto alleges in Eleven that Defendants Count Gibson, Inc., 1475, 37800, 1992 v. No. WL each call beginning failed to state at (Ohio 1992) (un 26, Ct.App. at *13 Feb. that of the call to make purpose was decision); published Eckman v. Columbia sale, 109:4-3- violation O.A.C. Inc., Oldsmobile, App.3d 65 Ohio 585 310.4(d)(2). 11(A)(1) 16 C.F.R. and/or (1989). N.E.2d The Ohio Court of complaint includes decisions Charvat explained has Appeals courts have found that viola- which Ohio supplier have where is found to en unfair or tions of are these in acts gaged that constitute violations the OCSPA. deceptive practices separate rulings or court inter rules ¶ n.3) (2d Compl. (citing Am. See R.20 preting 1345.02 [Ohio Code] Revised v. Wykle, Ohio ex rel. Fisher No. 1345.03,the consumer is entitled to $200 (Ohio 1992) (PIF Apr. 8, No. at Ct. C.P. actual per violation his or her dam 1141); rel. Ohio ex Petro v. Craftmatic violation, each ages for whichever is Inc., 05-CVH-06-06060, at 13 Org., No. not, however, greater. pre This does (PIF (Ohio 2005) July No. Ct. C.P. finding a court from that the facts clude Network, 2347)); Burdge Sys. v. Satellite only are such that one act occurred that LLC, (Fairfield, F No. 2005 CV or, only ... resulted one 2005) (PIF May 11, Ohio Mun. Ct. applied that two rules are so similar 2344). reject We therefore Defendants’ only facts one violation to the with argument pleadings that Charvat’s found. Five, Ten, Six, Nine, respect to Counts Crye, 674 N.E.2d at 784-85. Eleven are deficient under Culbreath.15 In Ryan, 858 N.E.2d Ohio that, al- court The district concluded whether Appeals analyzed sepa- Court violations though multiple Charvat each constitute rate violations the TCPA OCSPA, limited to one Charvat was (Dist. violations of the OCSPA. The remediable recovery per teleрhone call. R.53 10) the technical (citing Ohio court concluded Op. Ct. v. GVN Mich., Inc., calls in 47 C.F.R. F.Supp.2d 928-29 standards for automated Needletrades, Moreover, 15(a); Indus. amend his com- Tucker Union of (6th plaint discovery Emps., if reveals that the automated & Textile Cir. ways deceptive, messages were in other un- fair, Fed.R.Civ.P. or unconscionable. See 64.1200(b)(1) (2) and require dis- alleged Because the OCSPA violations —which

closure of the name and number separate injuries, caused three caller, of respectively both di- can separate recover three —“are preventing harm, rected at the same awards for the calls. Charvat therefore wit, rendering party the called $18,200 without can recover a maximum total of for means to contact the caller in stop order to brought pursuant claims to the OCS- future violative calls.” Ryan, 858 N.E.2d PA: thirty-one for the calls in $6200 which words, at 856. In other “violations of Defendants provide failed to both their these two in fact information, a name cause[] and contact $6000 single injury.” Id. The thirty therefore calls in which Defendants failed only was one entitled award of to maintain a record of $200 Charvat’s do-not- both Id. violations. at 856-57. request The Ohio call and failed to honor the re- court also held that the failure to maintain quest, and for the thirty calls in a policy written for maintaining a do-not- which Defendants failed to state at the call-list, required under 47 C.F.R. beginning of each call that purpose § 64.1200(d)(1), separate a “cause[s] and the call was to make a sale.

distinct harm” from violations of the tech- Invasion-of-Privacy Claim 64.1200(b)(1) nical (2), standards therefore supporting separate a damage We next consider Charvat’s Ryan, award. 858 N.E.2d at 857. challenge of the district court’s determina tion that his state-law claim of invasion of Applying Ryan analysis court’s privacy fails as a matter of law. The lаw, Ohio we conclude that Charvat is enti- district court concluded that thirty-one tled to separate damage three awards un- prerecorded calls, telemarketing which der the OCSPA for the violations. were made during mid-day over period The alleged TCPA violations related to months, “may three have annoy been Defendants’ failure to disclose their name ing” but “do not constitute a plausible (Counts and contact information Five and claim for an intrusion that ‘outrage would Six) caused the single injury preventing or cause mental suffering, shame or humil from contacting Defendants to iation person to a ordinary sensibilities’ prevent future calls. Defendants’ failure or that would ‘highly be offensive to a to maintain a record of Charvat’s do-not- ” (Dist. reasonable person.’ R.53 Op. Ct. call request and failure to honor his re- 13) Peth, (quoting Housh v. 165 Ohio St. (Counts Ten) quest Nine and also caused a 35, 133 syllabus para. (1956); N.E.2d 340 single injury receipt of calls —Charvat’s Fee, Sustin v. 69 Ohio St.2d after requesting placed to be on the do- (1982)). N.E.2d We review de not-call injuries, list. The however, two novo the district court’s decision that the separate distinct, are and Charvat claim failed as a matter of Sagliocco law. therefore is entitled to separate damage lo, 112 F.3d injuries. awards for both Additionally, the provisions disclosure O.A.C. 109:4-3- Ohio recognizes the tort of inva 11(A)(1) 310.4(d)(2) and 16 C.F.R. are sion of right to privacy for “the wrong directed at a third distinct harm —deceiv- ful intrusion into one’s activities in ing the caller about purpose of the call. such a manner outrage as to or cause Thus, Charvat is entitled to separate mental suffering, shame or humiliation to a damage award under the OCSPA for person Housh, of ordinary sensibilities.” Count Eleven. syllabus 133 N.E.2d para. 2. The Ohio (2) plaintiff-debtor’s] sister [the has to the Restate- “called Supreme looked Court (2d) scope of Torts to at least two times аnd ment define friend informed intrusion-upon-seclusion an liability for issued them that warrant had been checks”; (3) claim: because arrest of the bad [his] intrudes, physi- plaintiff-debtor’s] landlord”; intentionally “called [the One who otherwise, (4) upon solitude or cally the his employer or “sent letters and and his af- of another or faxes, seclusion concerning King the debt.” concerns, liability is to subject or to Inc., fairs Cashland, 18208, 99-1640, Nos. if privacy, invasion his the other for of (Ohio 1232768, Ct.App. Sept. at *2-3 WL highly would offensive the intrusion be 2000) decision). 1, (unpublished to person. a reasonable However, because creditor has a “[a] Sustin, (citing Re- N.E.2d at 993-94 pursue to take action to right reasonable (1977)). (2d) of Torts 652B statement Roush, persuade payment,” debtor and considering a defendant’s When whether syllabus para. N.E.2d we believe to the are offensive telephone calls important distinguish it is instanc- to to action- enough support an outrageous сalling in which a creditor a debtor es is invasion Ohio privacy, able claim of of instances which a telemarketer from is to a of differ- have looked number courts unsolicited calls to residential placing tele- calls, factors, including of ent the number Indeed, Congress en- phone subscribers. calls, day the the time of the content of acted the TCPA because consumers com- made, and that the calls were whether telemarketing that unsolicited plained other contacts accompanied by were calls calls, particular and in automated calls and plaintiff. with the an messages, are “a nuisance and invasion Roush, the con- Supreme In Ohio Court 2, 4-5, S.Rep. privacy.” of No. a defendant-creditor’s conduct cluded that 1968, 1969, in 1991 reprinted U.S.C.C.A.N. plain- an was actionable as invasion of the Thus, content, respect with 1972. the defendant privacy when tiff-debtor’s Appeals has conсluded Ohio Court campaign and tor- to harass initiate[d] the content of the call or trans- even when debtor, telephone[d] the debtor ment the objectionable, mitted material is not home every day six times at her eight communication itself “is offen- unsolicited employment place and —some right and violative of the individual’s sive p.m. period 11:45 as late as calls —over Mut. Ins. Co. v. privacy.” Motorists weeks, telephone^] of three the debtor’s Inc., App.3d Dandy-Jim, 182 Ohio them of the superiors inform[ed] (2009). 659, 666 912 N.E.2d debt, place at her debtor call[ed] calls, respect to the number of With peri- three times within a employment Appeals’ decision Irvine Ohio Court with threat of 15 minutes a resultant

od Journal, App.3d Beacon 147 Ohio v. Akron employment. of loss of (2002), indicates 770 N.E.2d 1105 4; syllabus para. accord id. N.E.2d calls” is suffi- alleging phone “hundreds of example, In another the Ohio Court claim, whereas for an actionable al- сient concluded that a defendant- Appeals only phone two or calls not. leging three “collection tactics exceeded creditor’s (2d) (citing Restatement Id. at reasonableness” when the defen- bounds of d, states 652B cmt. which of Torts (1) forty fifty calls phone dant “made knocking on liability no “there is “if he was asking plaintiff-debtor],” [the door, or him to the tele- calling calling] plaintiffs him Rodney King,’ and ‘related to or even two or ‘faggot’ on one occasion ‘punk phone mother fucker’ and ass three, ‍‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌‌‌‌‌​​​​‌​‌​‌‌‌‌‌‌​‌​​​​‍debt”); Therefore, fact payment to demand of a that the calls to Corporate accord Investigative Misseldine v. night Charvat were made late at not rvs., Inc., Se 2003 WL early morning necessarily does not (Ohio Ct.App. May at *7 preclude his claim. 2003) decision) (“A (unpublished phone few Finally, we that the district court believe calls do such wrongful not constitute intru important thirty failed to consider an faсt: sion.”). appeals The court of in Irvine of the thirty-one calls were concluded that the trial court did not abuse expressly requested made after Charvat its giving following jury discretion in placed be do-not-call Defendants’ list. instruction, quotes directly which from the ¶ (2d 86). R.20 Am. Compl. Persisting (2d) commentary in the Restatement of calling request after this do-not-call is Torts: likely more outrage offensive to and a only It when calls are person. Considering reasonable all of the persistence repeated with such and fre- circumstances, factual we conclude that the quency as to amount to a course of outrage highly calls could or be offensive hounding that the Plaintiffs becomes a Therefore, to a person. reasonable we substantial burden to his existence that cannot conclude that Charvat’s invasion-of- privacy Plaintiffs’ is invaded. privacy claim a fails as matter of law. The (alterаtion omitted) 770 N.E.2d at 1112 damages that has pleaded good Charvat (internal omitted); quotation marks see invasion-of-privacy faith for the claim thus (2d) Restatement of Torts 652B cmt. d. may be included in determination of Receiving thirty-one calls over the course controversy the amount in purposes for of of certainly three months is less intrusive (2d jurisdiction. determining See R.20 “hundreds,” than receiving thirty-one but 40).16 Am. Compl. at calls significantly would be more offensive than receiving three fewer calls. The Attorney Fees threshold of when number of calls Finally, pleads Charvat damages of “at becomes persistent frequent so and as to $50,000” attorney costs, least fees and “hounding” clearly constitute is not delin- eated; pursuant say we cannot as a matter of to Ohio Revised law Code 1345.09(F). (2d thirty-one 40). that calls over three months Am. Compl. R.20 at does not a constitute substantial burden. In Michigan, GVN we noted that “reason- fees, able attorney when mandated or al-

The court appeals of Irvine also stat- statute, may lowed be ed included in “telephone that calls need not be made day controversy at a certain amount in purposes time of the of constitute di- an invasion of privacy.” versity jurisdiction.” 770 N.E.2d at 561 F.3d at 630 n. 5 Miller, alleges compensatory damages damages. Zappitelli of See v. 114 Ohio $75,000,” "at punitive damages (2007) least of "at St.3d 868 N.E.2d $75,000,” ("Without attorney least finding fees and costs of a of malice and the award $50,000.” (2d "at Compl. punitive plaintiff least R.20 Am. damages, justify cannot EchoStar, (internal questioned In we attorney quota- whether award of fees.” pleading punitive omitted)). that, damages Charvat's was tion marks Because it is clear sufficient alleged punitive under Ohio tort law. 630 F.3d even without (citing 462-63 attorney Ohio Rev.Code Ann. invasion-of-privacy fees for his 2315.21(C)(1); claim, v. Mt. Sinai Med. Moskovitz total of Charvat’s claims "exceeds Ctr., $75,000,” 69 Ohio St.3d 635 N.E.2d 331 ... we need not (1994)). can lеgal certainty Whether Charvat recover attor- and do not address ney invasion-of-privacy fees for pleaded punitive damages claim de- Charvat’s and at- pends punitive torney whether he is entitled to fees. Co., necessary calculated as for Charvat Aetna Ins. court (citing Williamson Life (6th Cir.), denied, $75,000 given cert. its conclusions that F.3d to reach 169 L.Ed.2d 128 S.Ct. 552 U.S. could recover maximum (2007)). Code Ohio Revised $46,500 under the TCPA and 1345.09(F) court provides that “[t]he However, Id. at 15 & n.5. the OCSPA.17 a rea party prevailing award analysis it is from our above because clear attorney’s limited to the work fee sonable $75,000, claims exceed that Charvat’s total supplier if ... reasonably performed, [t]he not do not how to we need address prac an act or knowingly committed has attorney amount fees determine [Chapter 1345].” tice that violates calculating the be included when can has further clarified Supreme Ohio Court in controversy., amount knowing “to establish above, explained we For the reasons 1345.09,for an award Revised [Ohio Code] that Charvat’s total conclude fees, only attorney prove need $75,000, exceed for di- required claims in a acted manner that the defendant jurisdiction. versity The district court need not prove the CSPA and violated concluding that it lacked thus erred vio that the conduct defendant knew the diversity jurisdiction over Charvat’s Ryan, v. 116 Ohio the law.” Charvat lated claims. (2007). St.3d 879 N.E.2d

Nevertheless, plaintiff aif demon even Chapter violation of III. knowing

strates CONCLUSION trial court has discretion “[t]he EchoStar, Pursuant to our decision in attorney are war whether fees determine conclude that the district 630 F.3d we each Id. under the facts of case.” ranted determining federal court erred that attorney permitted fees Even when are federal-question jurisdiction lack courts case, statute, as in courts this some Additionally, private claims. over TCPA fees not counted such towards have total- because Charvat has claims if amount-in-controversy requirement $75,000, we that ing more than conclude or dis- example “future “speculative,” determining erred in the district court 14AA cretionary or fees.” unreasonable jurisdiction over diversity it not have did Alan Arthur R. Miller & Wright, Charles Accordingly, claims. state-law Charvat’s H. Federal Practice & Cooper, Edward dismiss- we REVERSE the district court’s (4th ed. Procedure 3702.5 subject-matter jurisdiction, for lack of al ways the different district court discussed proceedings and we REMAND for further analyzed attorney have which courts with opinion. consistent this the stan- “[u]nder and indicated that fees [Charvat], generous to dard most BATCHELDER, M. Chief ALICE attor- must estimate reasonable Court in the Judge, concurring judgment. prose- be incurred in ney’s likely fees federal agree majority I with the (Dist. Op. at cuting the case.” R.53 Ct. jurisdiction exists over question 15). The district court concluded brought and that claims TCPA standard, ... applying [Char- this “[e]ven other- holding district court erred likely not incur reasonable fees is vat] Inc., $22,300” Michigan, v. the district wise. See Charvat GVN amount —the penny be "one short.” diversity-jurisdiction statute that Charvat would still 17. Because the Co., F.3d Liberty v. Mut. Fire requires controversy to "ex- Freeland Ins. the amount (6th Cir.2011). $75,000, we note 28 U.S.C. ceed[]” (6th Cir.2009). 631-32 I also Because it clear that Charvat has in agree majority’s good pled with the conclusion that faith exceeding $75,000, court I any the district erred when it determined believe that further discus- sion diversity jurisdiction. specific that it neither lacked How- claims is neces- ever, sary join majority’s appropriate, I nor I would simply cannot discus- remand matter to sion the district court for regarding question whether proceedings. further both recover under 227(b) (c) violations that oc- during single phone curred call. The

parties themselves have neither raised nor issue,

argued this the district court did

not even mention it.1 therefore ought We

not address resolve particular ques- this

tion. TORRES-RENDON, Tomas B. I would also note that the district court’s Petitioner, resolution of privacy Charvat’s invasion of anomaly. claim is a procedural “The test HOLDER, Jr., jurisdictional ‍‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌‌‌‌‌​​​​‌​‌​‌‌‌‌‌‌​‌​​​​‍Attorney Eric H. whether amount has States, been met General of the considers whether the United Respondent. only can succeed the merits in a very superficial way.” Chesley, Kovacs v. No. 10-3735. (6th Cir.2005). F.3d Although it Appeals, United States Court purported apply “legal certainty” test, Seventh Circuit. clearly judged district court merits of Charvat’s claim rather than Argued May merely assessing whether he could assert Aug. Decided it in good faith. The district court’s evalu- ation of merits of Charvat’s invasion of

privacy claim is inconsistent with that

court’s simultaneous assertion that it subject jurisdiction.

lacked matter Da- Cf. Pharma, L.P., Walt v. Purdue (6th Cir.2005). Although I agree

with majority’s conclusion that Charvat pleaded

has this claim in good faith and he seeks should count

toward controversy the amount in pur-

poses determining diversity jurisdiction,

I join do not majority’s broader discus-

sion of the issue. fact, however, 227(c);

1. In explicitly Charvat has disclaimed that error is irrelevant to 227(c) any recovery. reliance party any It is the fact argu- that neither made has true, out, majority points as the respect ments with to whether has some 227(b) mislabeled violations should be able recover under both 227(b), arising 227(c) as occurring during for violations pursuant single he cites were phone enacted call.

Case Details

Case Name: Charvat v. NMP, LLC

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 30, 2011

Citation: 656 F.3d 440

Docket Number: 10-3390

Court Abbreviation: 6th Cir.