LANDSMAN FUNK PC v. SKINDER-STRAUSS ASS

RENDELL, Circuit Judge. A.

This consolidated appeal encompasses three class actions brought in the District Court for the District of New Jersey under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b). The TCPA is a unique federal statute that provides a private right of action for recipients of unsolicited facsimiles, as well as statutory damages of $500 per "violation. The plaintiffs in these suits alleged that each respective defendant sent over 10, 000 unsolicited fax advertisements to plaintiffs at their New York or New Jersey offices, and to thousands of others throughout the country, in violation of the TCPA. The plaintiffs in each case requested more than $5 million in damages for themselves and the members of the classes they represented. All three cases were dismissed by the District Courts on the grounds that plaintiffs' claims did not fulfill the requirements of diversity jurisdiction. Although the District Courts' specific reasons for dismissal varied slightly, a common question arises in our review of each of the cases: whether, notwithstanding our ruling in ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir. 1998), that private TCPA claims do not present a federal question, the federal courts can exercise diversity jurisdiction over private suits brought under the TCPA. On appeal, appellees contend that the three District Courts that ruled on the issue of jurisdiction erred because none held — as they should have — that there can be no diversity jurisdiction over claims under the TCPA. Because this argument, if adopted, would be dispositive of all three cases — in that dismissal would be appropriate in each case if it is correct — we address this issue before considering other issues raised as to the propriety of the District Courts' rulings in each case.

In each of the cases, the plaintiffs sought to represent three classes: Class A, consisting of all persons in the United States to whom defendant sent or caused to be sent a fax advertisement without the recipient's express invitation or permission between four years before the filing of the complaint through July 8, 2005; Class B, consisting of all persons to whom defendant sent or caused to be sent a fax advertisement, which did not contain a notice as required by 47 U.S.C. § 227(b)(2)(D), between July 9, 2005 through July 30, 2006; and Class C, consisting of all persons to whom defendant sent or caused to be sent a fax, which did not contain a notice as required by 47 C.F.R. § 64.1200(a)(3)(iii), between August 1, 2006 through the present.

In Landsman Funk, P.C. v. Skinder-Strauss Associates, 636 F.Supp.2d 359 (D.N.J. 2009), the District Court dismissed plaintiffs' complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction; it held that it lacked federal question jurisdiction under ErieNet and diversity jurisdiction because, under New York law, plaintiffs cannot bring class actions for statutory damages and, thus, the plaintiffs here could not satisfy the $5 million amount-in-controversy requirement under the Class Action Fairness Act ("CAFA"). In Goodrich Management Corp. v. Afgo Mechanical Services, Inc., No. 09-00043, 2009 WL 2602200 (D.N.J. Aug. 24, 2009), the District Court dismissed plaintiffs' complaint under Rule 12(b)(1) and Rule 12(b)(6); it found that it lacked federal question jurisdiction under ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d Cir. 1998), and determined that, since plaintiffs could not show that they were entitled to Rule 23 class certification, it lacked diversity jurisdiction because CAFA's amount-in-controversy requirement could not be met. The Goodrich Management Corp. v. Flierwire, Inc. Court dismissed the case for lack of subject matter jurisdiction pursuant to Rule 12(h)(3) based entirely on the reasoning in Landsman and Afgo. No. 08-5818, 2009 WL 3029758 (D.N.J. Sept. 22, 2009).

Though this is not the focus of appellees' argument, it is always our duty to assure ourselves of the existence of subject matter jurisdiction. Keefe v. Prudential Prop. Cos. Ins. Co., 203 F.3d 218, 223 (3d Cir. 2000). See also Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" (internal citations omitted)).

In ErieNet, we held that Congress intended to divest federal courts of federal question jurisdiction over individual TCPA claims. We are now called upon to decide whether our reasoning in ErieNet extends to diversity jurisdiction. That is, did Congress intend that these actions should be maintained exclusively in state courts such that federal courts cannot exercise diversity jurisdiction over them? We hold here that Congress did not intend for exclusive state court jurisdiction. The TCPA does not strip federal courts of diversity jurisdiction over actions brought under § 227(b)(3). Given our ruling that each District Court has jurisdiction over its respective plaintiffs' private TCPA class action claims pursuant to 28 U.S.C. § 1332(d), we also must address the Courts' class certification determinations, as discussed more fully below.

We have jurisdiction under 28 U.S.C. § 1291 to review the District Courts' orders dismissing these cases for lack of subject matter jurisdiction. We exercise plenary review of a district court's § 12(b)(1) dismissal for lack of jurisdiction and a district court's § 12(b)(6) dismissal for failure to state a claim. McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009); Anjelino v. NY. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). We also exercise plenary review of a district court's resulting jurisdictional determination. Umland v. PLANCO Fin. Serv., 542 F.3d 59, 63 (3d Cir. 2008). We review a decision to certify or deny a class for abuse of discretion. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 136 (3d Cir. 2000) (citing In re Prudential Ins. Co. of Am. Sales Practice Litig., 148 F.3d 283, 299 (3d Cir. 1998)).

B.

The TCPA, which was passed in 1991 as part of an amendment to the Communications Act of 1934, declares it unlawful under federal law "to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement," unless certain statutory exceptions apply. 47 U.S.C. § 227(b)(1)(C). It contains distinct provisions for private parties on the one hand, and state attorneys general on the other, to enforce this prohibition by litigation. § 227(b)(3), (f). Section 227(b)(3), entitled "Private right of action," provides that:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State —

(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this sub-section or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3). Thus, this private right of action allows a person, "if otherwise permitted by the laws or rules of court of a State, [to] bring in an appropriate court of that State" a private action for damages or injunctive relief, and entitles a successful plaintiff to recover damages of at least $500 per unsolicited fax. Another provision, whereby state attorneys general can bring civil actions for damages and injunctive relief, provides that the federal courts "shall have exclusive jurisdiction" over all such actions. § 227(f)(1), (2). It also provides that the TCPA does not prevent state officials from bringing similar actions in state court or otherwise exercising their powers under state law. § 227(f)(5), (6).

In enacting this legislation, Congress explained that it sought "to facilitate inter-state commerce by restricting certain uses of facsimile ([f]ax) machines and automatic dialers." S.Rep. No. 102-178, at 1 (1991), reprinted in 1991 U.S.S.C.A.N. 1968, 1968. It noted that "unsolicited calls placed to fax machines . . . often impose a cost on the called party (fax messages require the called party to pay for the paper used . . .)." Id. at 1969. In addition, a so-called "junk fax" "occupies the recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax." H.R. Rep. No. 102-317, at 10 (1991). Congress also noted the need for federal regulation to fill the gaps between individual states' regulatory efforts, since "[s]tates do not have the jurisdiction to protect their citizens against those who use [automated dialing] machines to place interstate telephone calls." S.Rep. No. 102-178, at 5. That is, although "[m]any States have passed laws that seek to regulate tele-marketing," "telemarketers can easily avoid the restrictions of State law, simply by locating their phone centers out of state." H.R. Rep. No. 102-317, at 9-1. This history suggests that Congress intended both to "fill the gaps" in state regulation and to give consumers the right to file TCPA actions in state court. The TCPA, and its private right of action, were thus designed to put "teeth" into state regulation, rather than to establish a distinctly federal policy. Essentially, Congress "sought to put the TCPA on the same footing as state law . . ., supplementing state law where there were perceived jurisdictional gaps." Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (2d Cir. 2006).

In introducing the bill, its sponsor, Senator Ernest Hollings, described the private right of action as follows:

The . . . bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. The consumer outrage at receiving these calls is clear. Unless Congress makes it easier for consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue.

Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys' costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 Cong. Rec. S16204 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings).

C.

The TCPA "presents an unusual constellation of statutory features": "the express creation of a private right of action, an express jurisdictional grant to state courts to entertain them, and silence as to federal court jurisdiction of private actions." Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 512 (5th Cir. 1997). As noted above, we concluded in ErieNet that, based on the language, structure, and legislative history of the statute, there is no federal question jurisdiction over private actions brought under the TCPA. 156 F.3d at 516-19. In ErieNet, we interpreted the permissive language of § 227(b)(3) providing that a person "may" bring an action in state court to suggest that "Congress intended to authorize private causes of action only in state courts, and to withhold federal [question] jurisdiction." Id. at 516 (emphasis in original). We focused on the distinction between the general jurisdiction of state courts and the limited jurisdiction of federal courts. See id. ("[T]here is no presumption of jurisdiction in the federal courts."). It was significant, we said, that the statute's permissive authorization referred only to state courts of general jurisdiction;" `that authorization cannot confer jurisdiction on a federal court because federal courts are competent to hear only those cases specifically authorized.'" Id. (quoting Int'l Sci. Tech. Inst, Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1151 (4th Cir. 1997)). We noted that subject matter jurisdiction must be conferred by statute and that the TCPA did not expressly do that. Id.

The majority of courts of appeals to consider the question have similarly concluded that federal courts lack federal question jurisdiction over private TCPA claims. Citing § 227(b)(3)'s explicit authorization of jurisdiction over private actions in state courts and the absence of any reference to federal court, these courts have concluded that Congress did not intend to grant the federal courts federal question jurisdiction over private TCPA claims. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432, 435 (2d Cir. 1998); Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997); Int'l Sci Tech. Inst, Inc. v. Inacom Commc'ns, Inc., 106 F.3d 1146, 1156 (4th Cir. 1997). Only two courts of appeals have held otherwise. See Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010) (finding federal question jurisdiction under the TCPA based on § 227(f)(2)'s explicit provision for exclusive federal jurisdiction, 28 U.S.C. § 1441(a)'s authorization of removal to federal court unless expressly provided by Congress, and on its reading of Grable Sons Metal Products, Inc. v. Darue Engineering Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 45051 (7th Cir. 2005) (similarly finding federal question jurisdiction under the TCPA based on § 227(f)(2) and Grable).

Though we addressed federal question jurisdiction extensively in ErieNet, we had no occasion to consider whether there can be diversity jurisdiction over TCPA claims. 156 F.3d at 520. The issue presently before us is whether diversity jurisdiction exists in the federal courts, notwithstanding our conclusion in ErieNet that Congress intended for private litigants to seek recourse in state courts for TCPA violations. In ErieNet we asked whether Congress conferred subject-matter jurisdiction in the TCPA; here we ask whether Congress intended state courts to have exclusive jurisdiction over TCPA claims and, thus, stripped away diversity jurisdiction. For the reasons set forth below, we hold that Congress did not divest the federal courts of diversity jurisdiction over private causes of action under the TCPA Finding that we have diversity jurisdiction over TCPA claims does not disturb the concepts we set down in ErieNet; the TCPA has neither divested federal courts of diversity jurisdiction over private causes of action nor conferred on them federal question jurisdiction.

We acknowledge that ErieNet referred, somewhat imprecisely, to "federal court jurisdiction" and "federal jurisdiction." However, notwithstanding Judge Garth's view, our analysis and holding were limited to federal question jurisdiction. Our opinion in ErieNet begins by referring to "a district court's federal question jurisdiction" and Article Ill's authorization of "arising under" (i.e., federal question) jurisdiction, and then refers repeatedly to jurisdiction under 28 U.S.C. § 1331. 156 F.3d at 515, 518-20. By contrast, neither diversity jurisdiction nor the statute that authorizes it, 28 U.S.C. § 1332, is mentioned in the opinion at all. See Watson v. NCO Grp., Inc., 462 F.Supp.2d 641, 646 n. 2 (E.D.Pa. 2006) ("[O]riginal jurisdiction pursuant to sections 1331 and 1337 were the only types of jurisdiction at issue in ErieNet. The court did not discuss the effects of its holding on supplemental or diversity jurisdiction.") (internal citation omitted). Nor do the other Courts of Appeals cases finding that federal courts lack § 1331 jurisdiction under the TCPA compel the conclusion that they also lack diversity jurisdiction. See Accounting Outsourcing, LLC v. Verizon Wireless Pers. Commc'ns, LP, 294 F.Supp.2d 834, 83910 (M.D.La. 2003) ("Nothing in the reasoning of any of the courts' [§ 1331 TCPA] opinions, however, suggests it would be logical to extend that reasoning to diversity jurisdiction.").

Our references to "exclusivity" of jurisdiction and jurisdiction "only" in state courts in ErieNet must, as then-Judge (now Justice) Sotomayor stated about similar references in Foxhall, "be read in context." Gottlieb, 436 F.3d at 337. ErieNet addressed only federal question jurisdiction, not diversity jurisdiction, so our references to "exclusive" state jurisdiction there must be read to describe only "exclusive substance-based jurisdiction" over TCPA claims in the state courts, not truly exclusive state court jurisdiction. Notwithstanding Judge Garth's reference to Congress's having "provided" and "decreed" that "all" cases be brought "only" in state court, the TCPA does not so state. (If it did, I would share Judge Garth's view on the issue before us).

Chief Judge McKee takes issue with our opinion in ErieNet, urging that three recent Supreme Court opinions have undermined the reasoning and result in that case. ErieNet is a precedential opinion of our Court that is not before us on this appeal. Even if it were, however, the Supreme Court cases referred to did not involve a federal statute that set forth a private right of action for litigants to proceed in state court. The statute in Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 641, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002), the Telecommunications Act of 1996, explicitly provided that an action could be brought "in an appropriate Federal district court," and in Breuer v. Jim's Concrete of Brevard, 538 U.S. 691, 123 S.Ct. 1882, 155 L.Ed.2d 923 (2003), the statute at issue provided that an action to recover liability may be maintained" `in any federal or state court of competent jurisdiction.'" Id. at 693, 123 S.Ct. 1882 (quoting 29 U.S.C. § 216(b)). Unlike the TCPA, neither statute evinces any congressional intent to keep causes of action in state court in the absence in diversity. Neither statute specifically directs private rights of action to state court. Finally, in Whitman v. Department of Transportation, 547 U.S. 512, 126 S.Ct. 2014, 164 L.Ed.2d 771 (2006) (per curiam), the Court noted that the district court, in considering the question of whether it has jurisdiction under 5 U.S.C. § 7121, should look to the statute itself and the overall Act in which it appears to discern whether Congress intended for jurisdiction to lie elsewhere. Id. at 513-14, 126 S.Ct. 2014. In ErieNet, we did exactly that and found that the TCPA removed the jurisdiction that § 1331 often confers on federally created causes of action. Accordingly, these cases are inapposite.

D.

Here, the specific provision granting subject matter jurisdiction to the federal courts is 28 U.S.C. § 1332(d), an amendment added to § 1332 pursuant to the Class Action Fairness Act ("CAFA") of 2005. Under CAFA federal courts have original jurisdiction over class actions where there is minimal diversity and the aggregate amount in controversy exceeds $5 million, exclusive of interests and costs. § 1332(d)(2), (6). In each of these cases, minimal diversity is present and, given defendants' alleged transmission of over 10, 000 unsolicited faxes and the possibility of treble damages under the TCPA the aggregate amount in controversy exceeds $5 million CAFA requires. Thus, in light of our ruling that federal courts can exercise diversity jurisdiction over TCPA claims when the requirements of diversity are otherwise fulfilled, the New Jersey District Courts here had subject-matter jurisdiction under § 1332(d).

In holding that there is diversity jurisdiction under the TCPA, we rely heavily on then-Judge (now Justice) Sotomayor's opinion in Gottlieb v. Carnival Corp., where the Second Circuit persuasively applied two canons of statutory interpretation to the TCPA — the "whole act rule," which instructs that parts of a statute should be placed in the context of the entire statutory scheme and the principle that reliance on background principles of law inform a statute's interpretation — to conclude that federal courts should have diversity jurisdiction over § 227(b)(3) claims. 436 F.3d at 338343. Though we do not adopt Gottlieb's reasoning whole-sale, we note the soundness of the Second Circuit's approach and draw on it considerably.

Our starting point is the historic grant of diversity jurisdiction to the federal courts, first under the Judiciary Act of 1789, then as codified at 28 U.S.C. § 1332. As did the Gottlieb court, we understand § 1332 as "an independent grant of federal jurisdiction intended to prevent discrimination against non-citizen parties regardless of whether state or federal substantive law is involved." 436 F.3d at 340. As such, diversity jurisdiction is "presumed to exist for all causes of action so long as the statutory requirements are satisfied." Id. Indeed, the language of § 1332 provides that district courts "shall have jurisdiction of all civil actions where "the matter in controversy exceeds $75,000 and where the parties are diverse. 28 U.S.C. § 1332 (emphasis added). Federal courts only lack diversity jurisdiction where Congress has explicitly expressed an intent to strip' federal courts of this jurisdiction, Gottlieb, 436 F.3d at 338, or where such jurisdiction is found to be irreconcilable with a congressional statute. U.S. Fax Law Ctr, Inc. v. iHire, Inc., 476 F.3d 1112, 1117 (10th Cir. 2007) (citing Colo. River Water Conser v. Dist. v. United States, 424 U.S. 800, 808, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). See also id. at 1117 ("[A]bsent an explicit indication that Congress intended to create an exception to diversity jurisdiction, one may not be created by implication.") (citing Ankenbrandt v. Richards, 504 U.S. 689, 700, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992)).

It is useful to begin with the origins of the two traditional bases for subject matter jurisdiction. Federal courts did not have general federal question jurisdiction until 1875. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). Before then, federal courts had jurisdiction over substantive law claims either when the federal statute sought to be enforced contained a specific grant of federal court jurisdiction or when diversity of citizenship was present. Diversity jurisdiction, by contrast, was "expressly contemplated by Article III of the United States Constitution" and has provided a jurisdictional basis for entry into the federal courts since the very inception of our judicial system in the Judiciary Act of 1789. Kopff v. World Research Grp., LLC, 298 F.Supp.2d 50, 55 (D.D.C. 2003). See also Hertz Corp. v. Friend, ___U.S.___, 130 S.Ct. 1181, 1188, 175 L.Ed.2d 1029 (2010) (noting the First Judiciary's Act's grant of authority to federal courts to hear suits "`between a citizen of the State where the suit is brought, and a citizen of another State'") (quoting § 11, 1 Stat. 78).

Today, diversity jurisdiction is "based on a grant of jurisdictional authority from Congress" in the form of 28 U.S.C. § 1332. U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Neirbo Co. v. Bethlehem Ship-building Corp., 308 U.S. 165, 171, 60 S.Ct. 153, 84 L.Ed. 167 (1939)). "As to diversity cases, Congress has given the federal courts cognizance, concurrent with the courts of the several states. [A party's] consent [to be sued in the courts of a state], therefore, extends to any court sitting in the state which applies the laws of the state." Id. (internal citations and quotution marks omitted) (emphasis added). Diversity jurisdiction's purpose — of "prevent[ing] apprehended discrimination in state courts against those not citizens of the state," Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) — exists independently of other considerations like the subject matter of the lawsuit or the nature of the law under which the suit is filed. See Accounting Outsourcing, 294 F.Supp.2d at 838 ("[N]o matter how one may label the diversity statute, it exists for an independent and important reason, unrelated to the subject matter of the lawsuit"). Indeed, the "presupposition of diversity jurisdiction," a concern with local bias, is usually not affected by other aspects of the cause of action. Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 546 n. 6, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Consequently, as a general matter, where parties are diverse and the amount in controversy meets the statutory bar, § 1332 operates as a threshold grant of jurisdiction. Other bases for federal jurisdiction may be expressly or impliedly proscribed, but such proscriptions are typically responsive to concerns that are either irrelevant or outweighed when the requirements for diversity jurisdiction are met.

Perhaps due to the mechanical nature of diversity jurisdiction's requirements, commentators have noted that, even after federal question jurisdiction was codified, litigants relied on diversity jurisdiction as a basis for entering federal court even where federal question jurisdiction existed. See Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77, 85, 134 (1997) ("In seeking injunctions against taxes alleged to violate the Constitution, federal court litigants continued to rely heavily on diversity jurisdiction well into th[e] [twentieth] century, long after the federal question statute had become available.").

Courts have long recognized the presumption of diversity jurisdiction regardless of the type of law under which a lawsuit arises. In Dodge v. Woolsey, 59 U.S. 331, 18 How. 331, 15 L.Ed. 401 (1855), for example, plaintiff, a Connecticut citizen and an investor in an Ohio corporation, sued, among others, an Ohio tax collector who was trying to collect taxes from the corporation. Plaintiff claimed that the taxes, which resulted from the passage of a new state law and state constitution in Ohio, violated the Contracts Clause of the U.S. Constitution because they abrogated the terms of the corporate charter the corporation had received from Ohio. Id. at 3350. Today, this claim would fall squarely under a federal court's federal question jurisdiction, but the Court's emphasis here was on the jurisdictional baseline that existed by virtue of the parties' diversity of citizenship. The Court rejected defendant's argument that the suit was within the exclusive jurisdiction of the state courts and noted "that the courts of the United States and the courts of the States have concurrent jurisdiction in all cases between citizens of different States, whatever may be the matter in controversy, if it be one for judicial cognizance . . . and that it is no objection to this jurisdiction, that there is a remedy under the local law." Id. at 347 (emphasis added). It is the parties being from different states, not the subject matter, that is determinative.

The presumptive existence of federal courts' diversity jurisdiction over all causes of action that meet § 1332's requirements is bolstered by the "well-established principle of statutory construction that repeal or amendment by implication is disfavored." Gottlieb, 436 F.3d 335 (citing Colo. River, 424 U.S. at 808, 96 S.Ct. 1236; Rosencrans v. United States, 165 U.S. 257, 262, 17 S.Ct. 302, 41 L.Ed. 708 (1897)). As the Supreme Court has emphasized, "[w]hen there are statutes," like § 1332, "clearly defining the jurisdiction of the courts, the force and effect of such provisions should not be disturbed by a mere implication." 165 U.S. at 262, 17 S.Ct. 302. See also Kopjf, 298 F.Supp.2d at 55 ("A federal court's original jurisdiction in diversity cases is not subject to implied exceptions."). In Colorado River, the Supreme Court stated that, "[i]n the absence of some affirmative showing of an intent to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." 424 U.S. at 808, 96 S.Ct. 1236. Clearly, § 227(b)(3) does not evince an intent to repeal § 1332 and is in no way irreconcilable with § 1332.

Federal question jurisdiction, by contrast, lacks diversity jurisdiction's expansive nature and straightforward applicability. Where a federal question clearly exists, district courts have original jurisdiction unless a specific statute places jurisdiction elsewhere, U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Int'l Sci, 106 F.3d at 1154), and if a federal question is not as clearly presented, determining whether "arising under" jurisdiction exists requires a multi-factorial analysis of how federal the claim really is; the process is more nuanced than the easily applied two-factor test for diversity jurisdiction, and the purposes served by allowing access to the federal courts under each statute are quite distinct. As the Fifth Circuit explained in finding that federal courts lack federal question jurisdiction under the TCPA, "[t]here is no `single, precise definition' of when a case falls within the original `federal question' jurisdiction of federal courts; `rather, the phrase "arising under" masks a welter of issues regarding the interpretation of federal and state authority and proper management of the federal jurisdictional system.'" Chair King, 131 F.3d at 510 (quoting Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (internal citations omitted)). Assessing whether a federal court has diversity jurisdiction generally avoids such thorny analysis. Thus, collapsing federal question and diversity jurisdiction together in the context of the TCPA ignores the meaningful difference between federal question jurisdiction, a constrained basis for jurisdiction that applies in a "narrow class" of federally-oriented cases, and diversity jurisdiction, which has traditionally been open to claims based on any cause of action out of concern for avoiding bias against out-of-state parties. Bryan v. BellSouth Commc'ns, Inc., 377 F.3d 424, 434 (4th Cir. 2004).

Indeed, § 1331's "all civil actions arising under" language has been interpreted to ensure that only cases "in which a well-pleaded complaint establishes either [1] that federal law creates the cause of action or [2] that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law" come into federal court under the court's federal question jurisdiction. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The federal question statute has not been read to confer upon federal courts "the full breadth" of federal question jurisdiction but instead has "been construed more narrowly than its constitutional counterpart." Chair King, 131 F.3d at 510 (citing Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 494-95, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)); Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 379-80, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). By contrast, § 1332(a)'s "all civil actions where" language has, in the absence of a specific directive otherwise, been interpreted to mean just what it says: when the conditions following "where" — sufficient amount in controversy and diversity of citizenship — are met, the suit can come into federal court.

In Brill, the Seventh Circuit, in dicta, conflated the two traditional bases for jurisdiction without explanation or citation — "if state jurisdiction really is `exclusive,' then it knocks out § 1332 as well as § 1331." 427 F.3d at 450. This is the only instance where a Court of Appeals, albeit without providing any reasoning, has concluded that the existence or absence of federal question jurisdiction under the TCPA dictates the same for diversity jurisdiction. For the reasons discussed herein, we reject this conclusion.

Nor does the fact that the TCPA is a federally created cause of action compel us to put diversity jurisdiction and federal question jurisdiction under the TCPA on equal footing. Though it is indeed "rare [for a] federal statute . . . [to] create[] a cause of action that gives rise to jurisdiction under § 1332, but not under § 1331," Gottlieb, 436 F.3d at 342 n. 8, it is not logically inconsistent. First, diversity jurisdiction is not by its statutory terms limited to state-law claims. As Judge Sotomayor observed in Gottlieb, "nothing in § 1332 indicates that diversity jurisdiction does not exist where federally-created causes of action are concerned." 436 F.3d at 335. Moreover, in the instances where federal statutes do not give rise to § 1331 jurisdiction, there is no indication that the rationale behind the absence of federal question jurisdiction also wipes out diversity jurisdiction.

A federal court's exercise of diversity jurisdiction over a federally-created cause of action will put the court in the "odd" position of "applying] federal substantive and procedural law," Gottlieb, 436 F.3d at 342 n. 8 (emphasis added). This in no way suggests that diversity jurisdiction is improper; it merely "emphasizes the sui generis nature of the [TCPA]." Id. The Sixth Circuit has also recognized and approved of this departure from Erie's directive to apply state substantive law and federal procedural law in diversity cases — a directive that is only applicable where state law causes of action are at issue. See Charvat v. GVN Michigan, Inc., 561 F.3d 623, 630 n. 6 (6th Cir. 2009). In Charvat, the Sixth Circuit rejected the district court's application of Ohio law in interpreting the federal TCPA and explained that, although federal courts sitting in diversity usually "apply state substantive law to state-law claims, this case presents a very different situation, because the statute on which the claims are based is itself a federal statute. As we have noted, `the applicability of state law depends on the nature of the issue before the federal court and not on the basis for its jurisdiction.'" Id. (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 333-34 (6th Cir. 2007) (internal quotation omitted)). Because the issue before it was "the interpretation of a federal statute," the Charvat court reasoned that it was "not bound by decisions of the state courts of Ohio interpreting the federal TCPA." Id. (citing Gottlieb, 436 F.3d at 343 n. 8).

Though the "vast majority" of cases that fall under § 1331 are "described by Justice Holmes' adage that `a suit arises under the law that creates the cause of action,'" Merrell Dow, 478 U.S. at 819, 106 S.Ct. 3229 (quoting Am. Well Works Co. v. Layne Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916)), it is not the case that every private cause of action under a federal statute begets federal question jurisdiction. Rather, "[i]nferior federal courts' `federal question' jurisdiction ultimately depends on Congress's intent as manifested by the federal statute creating the cause of action." Chair King, 131 F.3d at 510 (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 448, 12 L.Ed. 1147 (1850)). See also Int'l Sci., 106 F.3d at 1154 ("Because federal-question jurisdiction ultimately depends on an act of Congress, the scope of the district courts' jurisdiction depends on that congressional intent manifested in [the] statute."). Indeed, as our focus in ErieNet demonstrates, congressional intent is a touchstone of federal question jurisdiction analysis. See Merrell Dow, 478 U.S. at 812, 106 S.Ct. 3229 (noting that it has "consistently emphasized, in exploring the outer reaches of § 1331," that the determination of whether federal question jurisdiction exists over nonfederal causes of action "require[s] sensitive judgments about congressional intent, judicial power, and the federal system"). With diversity jurisdiction, however, unless Congress has been explicit in mandating exclusive state court jurisdiction or in precluding diversity jurisdiction, congressional intent is largely irrelevant to determining whether a federal court has diversity jurisdiction over a given cause of action.

Suits authorized by the federal statute at issue in Shoshone Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864 (1900), present an example of causes of action which, though created by federal law, do not fall under federal courts' federal question jurisdiction. In Shoshone, the Court considered whether a federal statute expressly authorizing "adverse suits" to determine title to land established federal question jurisdiction. Id. at 506, 20 S.Ct. 726. The statute provided that claims were to be determined "by local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States; or by the statute of limitations for mining claims of the State or Territory where the same may be situated." Id. at 508, 20 S.Ct. 726. The mere fact that a suit "takes its origin in the laws of the United States" does not, the Court reasoned, necessarily make it "one arising under the Constitution or laws of the United States," lest virtually every dispute over title to land "in the newer States" raise a federal question. Id. at 507, 20 S.Ct. 726. Accordingly, the Court held that the federal cause of action created by the mining statute did not confer federal question jurisdiction over claims that turned entirely on state law. Id.

See also Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 56 L.Ed. 1205 (1912) ("A suit to enforce a right which takes its origins in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.").

However, in noting the "conceded fact that, unless the amount in controversy is over $2,000, no jurisdiction attaches to the Federal court," id. at 511, 20 S.Ct. 726, the Court suggested that federal courts could exercise diversity jurisdiction over claims brought under the mining statute. Indeed, in International Science, the Fourth Circuit pointed to Shoshone as an example of a case where the Court found that, "notwithstanding the federal statutory basis, Congress intended that because of the predominance of state issues that cases be litigated in state courts unless there was diversity of citizenship.' 106 F.3d at 1154 (emphasis added). Even in Shoshone, where the statute at issue dealt with subject matter of the most local variety, land title, and specifically required the application of local laws and rules, it was not interpreted to create exclusive state court jurisdiction. The Shoshone Court's justification for removing certain federally created causes of action from federal courts' § 1331 jurisdiction where state law issues dominate or state rules govern does not apply to diversity jurisdiction, which, as we have described, "derives its basis not on the presence of a federal question, but rather on an independent anti-discrimination rationale." Biggerstaff v. Voice Power Telecomms., Inc., 221 F.Supp.2d 652, 657 (D.S.C. 2002). Both the mining statute and the TCPA are examples of federal causes of action that essentially enable state enforcement; as such, neither confers federal question jurisdiction in the federal courts, but neither, without more, disrupts the baseline framework of federal diversity jurisdiction over large claims between diverse parties.

Granted, the mining statute did not refer to the venue in which suits should or may be brought, whereas the TCPA specifically states that causes of action "may be brought" in "an appropriate court of that state." 47 U.S.C. § 227(b)(3).

Similarly, in Bay Shore Union Free School District v. Kain, 485 F.3d 730, 733-36 (2d Cir. 2007), the Second Circuit found that federal courts did not have federal question jurisdiction over claims under the Individuals with Disabilities Education Act (IDEA) where those claims turned entirely on state law and where diversity of citizenship was absent. IDEA required school districts to provide individualized education programs for disabled school-children and provided that parties "aggrieved by" the state or local agency's review of those programs "shall have the right to bring a civil action" challenging the agency's decision "in any State court of competent jurisdiction or in a district court of the United States." Id. at 735 (quoting 20 U.S.C. § 1415(i)(2)(A)). The Second Circuit found that, despite the reference in IDEA'S jurisdictional provision to "district courts," district courts lacked § 1331 jurisdiction over IDEA claims where the resolution turned entirely on state law, like the school district's challenge here to the local education agency's determination that the district was obliged to provide a student with a one-to-one aide during class. A federal court, Bay Shore said, "may not exercise jurisdiction over a civil action brought under § 1415(i)(2)(A) if the claims asserted turn exclusively on matters of state law and diversity of citizenship is absent." Id. at 736 (emphasis added). As in Shoshone, the court's conclusion regarding federal courts' lack of § 1331 jurisdiction under a federally created cause of action did not bear on the independent question of whether federal courts could have diversity jurisdiction under the statute.

Plaintiffs' claims under the mining statute in Shoshone and IDEA in Bay Shore turned entirely on the interpretation of state law. By contrast, the sources of law applicable in adjudicating TCPA claims are not so clearly limited, thus complicating our § 1331 jurisdictional inquiry — i.e. Shoshone's exception to the rule that "a suit arises under the law that creates the cause of action" does not squarely apply to private causes of action under the TCPA. The presumption of diversity jurisdiction in both cases despite the state-law focus of the mining and IDEA statutes, however, underscores both diversity jurisdiction's independence from the § 1331 inquiry and its baseline presence where it has not been explicitly divested.

E.

With this understanding of diversity jurisdiction in mind, we turn now to the TCPA itself. Due to the nature of diversity jurisdiction, it would take a "clear and definitive" directive from Congress to persuade us "to remove a party's entitlement to a federal forum based on diversity." Accounting Outsourcing, 294 F.Supp.2d at 838. As the Second Circuit did, we "proceed according to the rule that § 1332 applies to all causes of action, whether created by state or federal law, unless Congress expresses a clear intent to the contrary." Gottlieb, 436 F.3d at 340. Our demand for a clear statement comports with our general view that "`repeals by implication are not favored and will not be presumed unless the intention of the legislature is clear and manifest.'" Hagan v. Rogers, 570 F.3d 146, 15455 (3d Cir. 2009) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (internal quotation marks and brackets omitted)).

We do not find the TCPA's language sufficiently clear or forceful enough to deprive federal courts of diversity jurisdiction over TCPA claims. Nothing in § 227(b)(3) or the overall statute indicates that Congress intended for individual claims brought under the TCPA to operate any differently than other suits between diverse parties where the amount in controversy meets § 1332's requirements.

First, § 227(b)(3) itself, which states that "[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State" an action for damages against defendants who have violated the TCPA, does not expressly remove federal courts' diversity jurisdiction over TCPA claims. As the Tenth Circuit has noted, "[t]his fact alone is probably sufficient to demonstrate the presence of diversity jurisdiction because `[diversity jurisdiction] is an independent grant of federal jurisdiction . . . [that] is presumed to exist for all causes of action so long as statutory requirements are satisfied.'" U.S. Fax Law Ctr., 476 F.3d at 1117 (quoting Gottlieb, 436 F.3d at 340).

We note, as Gottlieb did, the contrast between the absence of any reference to diversity jurisdiction in the TCPA and the overt elimination of such jurisdiction in at least two other federal statutes. See 436 F.3d at 340 n. 6. The Johnson Act states:

The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: ( I) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State.

28 U.S.C. § 1342 (emphasis added). In the Johnson Act, Congress made explicit its intention to preclude subject matter jurisdiction based on diversity. In addition, the legislative history of the Act makes it plain that Congress's purpose in passing the Act was to "prevent out-of state utilities from challenging state administrative orders in federal court," Accounting Outsourcing, 294 F.Supp.2d at 839 (citing California v. Grace, 457 U.S. 393, 410 n. 22, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982)), a purpose that aligns with divesting the federal courts of diversity jurisdiction.

The Tax Injunction Act provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

28 U.S.C. § 1341 (emphasis added). Though the text of the TIA does not specifically address diversity jurisdiction, the legislative history indicates that Congress intended to "stop out-of-state corporations from using diversity jurisdiction to gain injunctive relief against a state tax in federal court. . . ." Jefferson County, Ala. v. Acker, 527 U.S. 423, 435, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). Both the Johnson Act and the TIA "were designed to eliminate disparities between taxpayers who could obtain injunctive relief in federal court — namely out-of-state corporations asserting diversity jurisdiction — and local taxpayers who were left to litigate in state courts where taxpayers often had to pay first and litigate later." Accounting Outsourcing, 294 F.Supp.2d at 839. In these contexts, the usual justification for diversity jurisdiction — preventing discrimination against out-of-state defendants — is absent; in fact. Congress wished to address the converse concern — eliminating any preference for out-of-state defendants. With the TCPA, Congress has evinced no such countervailing concern. Neither the TCPA's text nor legislative history suggests any reason for barring federal subject matter jurisdiction where the parties are diverse and the amount in controversy meets the jurisdictional bar.

Moreover, the statute's "permissive grant of jurisdiction to state courts," ErieNet, 156 F.3d at 523 (Alito, J., dissenting) — its provision that litigants "may" bring private actions in state courts — does not indicate that suits are required to be brought in state court; it suggests only that, as the text says, they may be brought in state courts. As we observed in ErieNet, Congress, with this permissive language, " referred . . . [TCPA] claims to state court as forcefully as it could" given possible constitutional difficulties with mandating a resort to state courts. 156 F.3d at 516 (emphasis added). We found Congress's direction emphatic enough and adequately indicative of a lack of federal concern to remove federal courts' § 1331 jurisdiction over TCPA claims. The direction, however, is not the kind of precise, unambiguous statement of congressional intent to confer exclusive state court jurisdiction that is required to divest a court of its diversity jurisdiction. The language in the Johnson Act and the TLA, see supra n. 15, demonstrates that when Congress wishes to strip federal courts of diversity jurisdiction, it does so clearly, and usually in a context where the policy concerns underlying diversity jurisdiction are absent. In these instances, a congressional directive to strip courts of diversity jurisdiction need not be inferred from statutory text and legislative history that speak more directly to questions of federal interest, state/federal balance and other barometers of federal question jurisdiction; instead, the abrogation is clearly stated.

See ErieNet, 156 F.3d at 522 (Alito, J., dissenting) (noting that the TCPA was designed to " `allow consumers to bring an action in state court.'") (quoting 137 Cong. Rec. SI6205 (daily ed. Nov. 7, 1991)).

The TCPA's statutory structure further supports our interpretation. See United States v. CDMG Realty Co., 96 F.3d 706, 714 (3d Cir. 1996) (noting that, in statutory construction, "[m]eaning derives from context"). Courts of appeals addressing federal question jurisdiction under the TCPA have pointed out that Congress's drawing of jurisdictional distinctions in other parts of the TCPA made its failure to do so in § 227(b)(3) more significant. The Second Circuit in Foxhall and the Fourth Circuit in International Science cited § 227(f)(2)'s explicit mandate that federal courts have exclusive jurisdiction over TCPA claims brought by states' attorneysas evidence that where Congress affirmatively intended for federal court jurisdiction, it so stated. In addition, as Gottlieb recognized, § 227(f)(2)'s exclusive jurisdiction language further suggests that Congress, in the very same act, knew how to explicitly assign exclusive jurisdiction to one set of courts. Thus, when in § 227(b)(3) it "did not similarly vest categorical, `exclusive' jurisdiction in state courts for private TCPA claims," it therefore "did not divest federal courts of both federal question and diversity jurisdiction." Gottlieb, 436 F.3d at 338 (emphasis added). Regarding the overall statutory structure, the Second Circuit concluded, and we agree, that "[j]ust as nothing in the language of § 227(b)(3) expresses a congressional intent to divest the federal courts of jurisdiction under the TCPA, nothing in the statutory structure indicates that intent." Id. at 339.

Section 227(f)(2) provides, in relevant part, that "[t]he district courts of the United States . . . shall have exclusive jurisdiction over all civil actions brought under this subsection." 47 U.S.C. § 227(f)(2).

Our interpretation is also consistent with the TCPA's statutory purposes, as revealed in the statute's legislative history. See Klein v. Vision Lab Telecomm., Inc., 399 F.Supp.2d 528, 534 (S.D.N.Y. 2005) ("This interpretation [that federal courts have § 1332 jurisdiction under the TCPA] is consistent with the purposes of the TCPA, as reflected in the Act's legislative history."). In reading the TCPA to exclude federal question jurisdiction, several courts of appeals have looked to Senator Hollings's suggestion that "state courts provide a more appropriate forum for small value claims and plaintiffs appearing on their own behalf." Accounting Outsourcing, 294 F.Supp.2d at 837 (citing Int'l Sci, 106 F.3d at 1152-53 (internal citations omitted)). See also, e.g., ErieNet, 156 F.3d at 518 (citing the congressional record and Senator Hollings's statement); Int'l Sci, 106 F.3d at 1152-53 (same). Congress's preference for resolving small TCPA claims in state courts designed to handle them, significant to § 1331 analysis, has little relevance and "little force in a diversity suit, which by definition involves an amount in controversy exceeding $75,000." U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Accounting Outsourcing, 294 F.Supp.2d at 840). As then-Judge (now Justice) Alito noted in his ErieNet dissent, "the Senator said nothing about preventing corporate adversaries who are battling over large sums of money from . . . go[ing] to federal court." 156 F.3d at 522. Nothing in the Senator's statements contradicts or even speaks to the basic rationale underlying diversity jurisdiction — protecting out-of-state defendants from pro-citizen bias in the state courts. Indeed, our holding that federal courts have diversity jurisdiction over TCPA claims where § 1332's conditions are met — for the same protectionist reasons they always have diversity jurisdiction over larger claims between diverse parties — in no way conflicts with Congress's wish that individual low-value claims regarding unsolicited faxes be litigated in state courts.

Judge Alito, who argued that federal courts do have federal question jurisdiction under the TCPA, suggested that such battling corporate adversaries could choose to go to federal court, even in the absence of diversity. We disagree with his overall conclusion but concur with his reading of the statute's legislative history — that it "confirm[s] the permissive grant of state jurisdiction found in the statute's text" and does not indicate that Congress intended for exclusive state jurisdiction. 156 F.3d at 522.

In examining the TCPA's statutory purpose, we also note what Congress clearly was not contemplating or targeting with passage of the TCPA. Private suits under the TCPA do not fall into the narrow ambit of causes of action over which state courts have exclusive jurisdiction even if the requirements of diversity are met. Cf. Colo. River, 424 U.S. at 817, 96 S.Ct. 1236 (noting the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them"). These suits concern domestic relations — divorce, alimony, and child custody — and are confined to the state courts because of their highly localized nature and because of the primacy of states' interest in these matters. The TCPA, by contrast, does not regulate an area of the law characterized by deep-seated historical deference to state courts and state policy. Cf. Ankenbrandt, 504 U.S. at 704, 112 S.Ct. 2206 ("[S]tate courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees.").

As we have explained, nothing in the statutory text or legislative history of the TCPA expressly indicates that Congress intended to strip federal courts of their diversity jurisdiction under § 1332 over TCPA claims. Since diversity jurisdiction is not explicitly abrogated, it will only be found lacking if the "diversity jurisdiction statute and the TCPA are `irreconcilable.'" U.S. Fax Law Ctr., 476 F.3d at 1117 (citing Colo. River, 424 U.S. at 808, 96 S.Ct. 1236). See also Hagan, 570 F.3d at 155 (" `An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act covers the whole subject area of the earlier one and is clearly intended as a substitute.'") (quoting Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (internal citations and quotation marks omitted)).

The diversity jurisdiction statute and the TCPA are not irreconcilable. Though federally established, the TCPA essentially operates like a state law. By providing a federal law to counteract evasion of state law across state lines, Congress "sought to put the TCPA on the same footing as state law, essentially supplementing state law where there were perceived jurisdictional gaps." Gottlieb, 436 F.3d at 342. In ErieNet, we noted that the "mere need for federal legislation and provision of remedies does not give a right of access to a federal forum," 156 F.3d at 517; nor does a federal law's gap-filling function or its operation alongside state law remove the action from federal court entirely. We agree with the Second Circuit that, "[i]nsofar as Congress sought, via the TCPA, to enact the functional equivalent of state law that was beyond the jurisdiction of a state to enact, it would be odd to conclude that Congress intended that statute to be treated differently, for purposes of diversity jurisdiction, than any other state statute." 436 F.3d at 342.

Though the interstitial role of the TCPA does not suggest a clearly identifiable federal interest that would provide a basis for federal question jurisdiction, the TCPA's text and history also do not reflect the kind of clearly exclusive, localized concerns that are at the heart of domestic relations statutes or statutes like the TIA and the Johnson Act, see supra, which do not allow for diversity jurisdiction. See Accounting Outsourcing, 294 F.Supp.2d at 840 ("Unlike matters involving taxes and public utilities, matters involving fax transmission can hardly be deemed `traditionally regulated' by the states."). It is thus coherent to conclude that the TCPA produces neither federal question jurisdiction nor exclusive state court jurisdiction.

Not only are the TCPA and the diversity statute compatible, but it is actually the " eliminat[ion] [of] diversity jurisdiction over TCPA claims" that would produce anomalous results. U.S. Fax Law Ctr., 476 F.3d at 1117 (emphasis in original). Indeed, interpreting the TCPA to vest exclusive jurisdiction in state courts would mean that "`state law claims based on unlawful telephone calls could be brought in federal court, while federal TCPA claims based on those same calls could be heard only in state court.'" Id. (quoting Kinder v. Citibank, No. 99-CV-2500, 2000 WL 1409762, at *4 (S.D.Cal. Sept. 14, 2000)). See also Gottlieb, 436 F.3d at 342 ("The reasoning of those district courts that have noted the anomaly that would result if a plaintiff alleging a state-law cause of action for unauthorized telemarketing could sue in federal court on the basis of diversity jurisdiction but a TCPA plaintiff could not do so is . . . persuasive.") (citing Kinder, 2000 WL 1409762, at *4). Bifurcating related cases would "promote a needless waste of resources through duplicative discovery and motion practice, and would create the possibility of conflicting factual findings and legal holdings." Watson, 462 F.Supp.2d at 646. In addition, finding exclusive state court jurisdiction under the TCPA would bar the federal courts from exercising supplemental jurisdiction under 28 U.S.C. § 1367 over TCPA claims: "[W]here a federal court exercised federal question jurisdiction over a claim involving other provisions of the Communications Act or diversity jurisdiction over a claim under a parallel state statute, it could not hear a related TCPA claim." 436 F.3d at 342. Without a clear statement from Congress precluding the exercise of supplemental jurisdiction over TCPA claims we are unwilling to so interfere with this established and independent basis of jurisdiction. See Watson, 462 F.Supp.2d at 646 ("To interpret ErieNet to foreclose supplemental jurisdiction would produce a result that is unsupported by the language and the intent of the TCPA, and is inconsistent with the purpose of supplemental jurisdiction.").

Other impermissible consequences could also flow from the elimination of diversity jurisdiction. We note the possibility that, in the absence of diversity jurisdiction under § 1332, a plaintiff who had received unsolicited faxes could entirely lose his right to file a private TCPA claim. The language in the TCPA providing that a plaintiff may bring suit in state court "if otherwise permitted by the laws or rules of a State" suggests that, without diversity jurisdiction in federal courts, a plaintiff "could be without any venue to file his claim if a state opted out of the TCPA." U.S. Fax Law Ctr., 476 F.3d at 1117 (" `[I]f otherwise permitted by the laws or rules of a court of a State' implies that federal [question or diversity] jurisdiction . . . is available; otherwise where would victims go if a state elected not to entertain these suits?") (citing Brill, 427 F.3d at 451).

Finally, we recognize that, on a practical level, Congress probably did not anticipate a circumstance in which a conflict between § 1332 and § 227(b)(3) would arise. Indeed, Congress set the statutory damages for individual TCPA claims at $500, a figure substantially lower than the $75,000 diversity jurisdiction bar. We have little doubt that in designing a statute to provide relief to aggrieved recipients of unsolicited faxes, Congress expected that these individuals would sue in state court and did not want federal court to be bothered with their claims. However, as the Second Circuit concluded, "Congress's failure to foresee a circumstance in which diversity jurisdiction could be invoked does not serve as a barrier to federal jurisdiction in the absence of a clear statement to divest the federal courts of diversity jurisdiction." Gottlieb, 436 F.3d at 343. Congress has given no indication that when litigants can aggregate their claims to add up to $75,000, or file as a class to reach CAFA's $5 million requirement, it intended that these claims be barred from federal court. Its failure to anticipate this circumstance does not signal or predict its intent now that the circumstance has arisen. To conclude otherwise is to enter the realm of speculation. We would prefer to let Congress speak for itself. As it stands, the TCPA does not direct us to treat diversity jurisdiction any differently than we normally would, and the litigants present no argument for why we should disrupt the standard premise that a federal forum is available for completely diverse parties where the amount in controversy is $75,000 or more and for minimally diverse parties where the amount is $5 million or more.

See also Charvat, 630 F.3d at 464 (interpreting § 227(b)(3) to "suggest that Congress anticipated that the Act would be privately enforced primarily in state court" but concluding that this does not "establish that such claims may proceed only in state court — that state court jurisdiction is exclusive").

The availability under § 227(f) of a cause of action brought by the state in federal court on behalf of its citizens does not act as a substitute for these aggregated claims; firstly, a parens patriae case brought by a state under § 227(f) does not provide the individual compensation provided for by § 227(b)(3)'s private cause of action and, secondly, as we noted in ErieNet, "the sheer number of calls made each day-more than 18, 000, 000-would make it impossible for government entities alone to completely or effectively supervise this activity." 156 F.3d at 515.

In holding that we have diversity jurisdiction over individual TCPA claims, we join a majority of courts of appeals and district courts that have considered or addressed the issue. See Gottlieb, 436 F.3d 335; U.S. Fax Law Ctr., 476 F.3d at 1117 (following Gottlieb in concluding that, "absent an explicit indication that Congress intended to create an exception to diversity jurisdiction, one may not be created by implication" and finding no such explicit indication in the TCPA); Gene Gene LLC v. BioPay LLC, 541 F.3d 318, 324-25 (5th Cir. 2008) (concluding without specific analysis of the diversity jurisdiction question that, because the requirements of CAFA were met, it has diversity jurisdiction over aggregated CAFA claims: "[Regardless of federal question jurisdiction,] subject-matter jurisdiction, in any event, is proper under provisions of CAFA."); Klein, 399 F.Supp.2d at 533-34; Watson, 462 F.Supp.2d at 647; Kopff, 298 F.Supp.2d at 55; Charvat, 703 F.Supp.2d at 739 n. 1; Accounting Outsourcing, 294 F.Supp.2d at 83940. We conclude that neither the TCPA'itself nor our decision in BrieNet precludes district courts from hearing TCPA claims where an independent basis for federal jurisdiction, like diversity or supplemental jurisdiction, exists. Federal question and diversity are distinct jurisdictional, bases; at least in the context of the TCPA, the existence or non-existence of one jurisdictional basis does not affect the existence of the other. As we read the TCPA, there is nothing in the statute itself — or suggested by its legislative history — that provides a basis for federal jurisdiction and, at the same time, there is nothing in it that deprives federal courts from hearing TCPA claims where independent grounds for jurisdiction exist. A federal cause of action that gives rise to § 1332, but not § 1331, jurisdiction is indeed rare, Gottlieb, 436 F.3d at 342 n. 8, but it would defy congressional intent as expressed in the TCPA's text and statutory scheme not to endorse this unique jurisdictional framework.

F.

The Landsman District Court did not base its dismissal on the unavailability of diversity jurisdiction over private TCPA claims. It correctly noted that there could be diversity jurisdiction under the TCPA, largely based on its understanding that our ruling in ErieNet was confined to federal question jurisdiction. However, the District Court then went on to examine state law, deeming state law "with respect to the TCPA" to be "substantive" under Erie and conducting a choice-of-law analysis between New York and New Jersey law. See Erie, 304 U.S. 64, 58 S.Ct. 817. The Court appeared to believe that Erie controlled — and required a choice-of-law analysis — since the issue before the court in a diversity case necessarily involves a choice among state laws. The Court reached the conclusion that New York law would apply, and because New York does not permit class claims seeking aggregated statutory damages, plaintiffs could not possibly have damages that would satisfy the $5 million amount-in-controversy requirement under CAFA. Accordingly, the District Court found that it could not exercise diversity jurisdiction over the case and granted defendant's motion to dismiss.

Landsman also acknowledged that plaintiffs satisfied the three basic requirements of § 1332(d): that the class have at least 100 members, that there exist minimal diversity between the parties (Landsman is a New York citizen, and Skinder-Strauss a New Jersey citizen), and that the amount in controversy be at least $5 million (the complaint alleged that defendant sent over 10, 000 faxes, and the damages for each fax are $500).

Citing our decision in Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008), the Landsman Court decided that, in diversity cases, it must first determine whether a "matter" is procedural or substantive; substantive "matters" require a choice-of-law analysis. Concluding that "no law could be more substantive than" CPLR § 901(b), since it "would foreclose the possibility of this Court having jurisdiction," 636 F.Supp.2d at 364, it performed a choice-of-law analysis to decide whether the substantive law of New Jersey or New York should apply.

New York's Civil Practice Law and Rules ("CPLR") § 901(b) states the following:

Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.

C.P.L.R. § 901(b) (emphasis added).

We conclude that the Landsman Court's reasoning missed the mark. Because plaintiffs were proceeding under federal, not state, law — namely, the federal TCPA — there was no need for choice-of-law analysis under Erie. Furthermore, even if the fact that the TCPA is a federal statute were not determinative, under Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., ___ U.S. ___, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), federal law regarding class actions would be applied in federal courts, not state law. Rule 23, not § 901(b), controls this TCPA class action, and plaintiff is thus authorized to maintain a class action as long as Rule 23's prerequisites are met. The Landsman District Court and the Flierwire District Court, which adopted Landsman's, reasoning on this point, erred in finding that New York's § 901(b) applies here to preclude a TCPA class action. Since plaintiffs have met § 1332(d)'s requirements, the District Courts can exercise diversity jurisdiction over their claims. The only remaining question, then, is whether Rule 23 was satisfied.

See Erie, 304 U.S. at 78, 58 S.Ct. 817 (" Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.") (emphasis added); supra n. 10 (noting that Erie's directive to apply state substantive law and federal procedural law in diversity cases is only applicable where state law causes of action are at issue).

In Shady Grove, the Supreme Court held that § 901(b) "cannot apply in diversity suits" in federal court; rather, Rule 23 controls. 130 S.Ct. at 1437. The only exception is when Congress has explicitly "carved out . . . federal claims . . . from Rule 23's reach," id. at 1428, which is not the case here. Indeed, we do not interpret § 227(b)(3)'s "if otherwise permitted by laws or rules of court of a State" language to carve out TCPA claims from Rule 23's ambit; we agree with Justice Scalia that reading § 227(b)(3) to require deference to state class action law would mean that the TCPA "effect[ed] an implied partial repeal of the Rules Enabling Act," and "would require federal courts to enforce any prerequisite to suit state law makes mandatory — a state rule limiting the length of the complaint, for example." Holster v. Gatco, Inc., ___ U.S. ___, 130 S.Ct. 1575, 1575-76, 176 L.Ed.2d 716 (2010) (Mem. granting petition for writ of certiorari, vacating judgment and remanding to the Second Circuit) (Scalia, J., concurring). "A more probable" reading of this language "is that when a State closes its doors to claims under the Act § 227(b)(3) requires federal courts in the State to do so as well." Id. at 1576. This language deals with the threshold requirement of where and when TCPA suits can be brought. It basically authorizes a state to keep these claims out of state court, see Brill, 427 F.3d at 451; Int'l Sci., 106 F.3d at 1156, but it does not explicitly require the application of state law or direct federal courts to defer to state law in deciding whether a class action can be maintained. Such a clear statement from Congress would be needed for TCPA claims to fall under the exception articulated in Shady Grove. Further, the Shady Grove plurality objected to treating § 901(b) as a substantive law, since "it is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule." Id. at 1444. Because Rule 23 "regulates procedure," "it is authorized by [the Rules Enabling Act] and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights." Id.

G.

The Afgo District Court took a different tack than the Landsman Court, but we also disagree with its approach. As was the case in Landsman, the Afgo court presumed the case could proceed based on diversity, but reasoned that if a class could not be certified, then § 1332(d)'s amount in controversy could not be met. Accordingly, the Court set forth Rule 23's class certification requirements and determined that they were not fulfilled here. As we have noted, see supra, Rule 23 does apply here. However, delving into the propriety of class certification was the wrong focus at that early stage of the proceeding.

Rule 23(a) requires that a plaintiff seeking class certification must establish four requirements: numerosity, commonality, typicality and adequacy of representation. Fed.R.Civ.P. 23(a). In addition, plaintiffs must meet one of the requirements of Rule 23(b). Rule 23(b) requires that one of the following conditions is met:
(1) prosecuting separate actions by or against individual class members would create, a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed.R.Civ.P. 23(b). Goodrich alleged in its complaint that it meets Rule 23(b)(3)'s predominance and superiority requirements, under which a plaintiff must show that "questions of law or fact common to the members of the class predominate" over questions affecting only individual members and that a class action is "superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3).

The Afgo Court held that, even with additional discovery, plaintiffs would not be able to fulfill Rule 23(a)(3)'s typicality requirement or any of Rule 23(b)'s requirements. Regarding both typicality and predominance, it explained that there were too many "crucial factual determinations to be made with respect to claims and defenses that will vary from party to party," in particular, consent to receive faxes and the existence of a prior business relationship with defendant. 2009 WL 2602200, at *5. With respect to Rule 23(b)(1), the Court concluded that the claims of all potential plaintiffs were factually distinct enough that there would be no risk of inconsistent adjudications. Id. Finally, it concluded that a class action was not a superior means of adjudicating this kind of controversy because the individual recovery scheme contemplated by the TCPA — which allows individuals to recover $500 to $1500 per violation when their actual losses from receiving unwanted faxes are slight by comparison — already contains a punitive element that both deters potential violators and motivates individuals to file claims. Id. In fact, the Afgo Court reasoned, a class action would be an inferior means; an individual plaintiff who could have received damages quickly and without attorney's fees on her own would instead have to engage in protracted litigation and incur substantial legal fees that would reduce her recovery. Id. Afgo's class certification analysis — and Flierwire's adoption of it — are conclusory at best.When the District Courts decided the class certification issue, there had been no motion for class certification and no discovery; whether the class could potentially fit within Rule 23 was determined on a motion to dismiss. This ruling was premature. To determine if the requirements of Rule 23 have been satisfied, a district court must conduct a "rigorous analysis." In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008). In doing so, a "court may `delve beyond the pleadings to determine whether the requirements for class certification are satisfied.'" Id. at 316 (quoting Newton v. Merrill Lynch, Pierce, Fenner Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001)). Particularly when a court considers predominance, it may have to venture into the territory of a claim's merits and evaluate the nature of the evidence. Id. at 310-11. In most cases, some level of discovery is essential to such an evaluation. In Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), we emphasized the importance of discovery as part of the class certification process. "It seems appropriate," we said, "that the class action process should be able to `play out' according to the directives of Rule 23 and should permit due deliberation by the parties and the court on the class certification issues." Weiss, 385 F.3d at 347-48 (footnote omitted). Accordingly, "[a]llowing time for limited discovery supporting certification motions may . . . be necessary for sound judicial administration." Id. at 347 n. 17. These concerns were the basis for setting down a "rigorous analysis" requirement in Hydrogen Peroxide, where we recognized that changes in Rule 23 reflected the need "for a thorough evaluation of the Rule 23 factors." Hydrogen Peroxide, 552 F.3d at 318.

The Flierwire Court did not conduct an independent analysis on the class certification question; it wholly adopted A/go's reasoning on this point.

We note at the outset our agreement with plaintiff Landsman that this case is not among the rare few where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met. See Rios v. State Farm Fire Cas. Co., 469 F.Supp.2d 727, 740 (S.D.Iowa 2007).

Further, in the specific context of claims filed under the TCPA statute, it is difficult to resolve without discovery whether there are factual issues regarding class members' business relationships with defendants or whether they consented to the receipt of faxes. See Gene Gene LLC v. BioPay LLC, 541 F.3d 318, 327-28 (5th Cir.2d08) (in discussing issues of commonality regarding consent, noting that "there are no invariable rules regarding the suitability of a particular case filed under [§ 227(b)(3)] of the TCPA for class treatment; the unique facts of each case generally will determine whether certification is proper") Without discovery, the "unique facts" of this case, or any other, will not really be exposed. As the Fifth Circuit noted, differences among plaintiffs' consent may be defeated by common proof developed in discovery. See id. at 327-28 (noting the possibility of presenting a "novel, class-wide means of establishing . . . lack of consent" on discovery — where the common question was whether inclusion of the recipients' fax numbers in a purchased database indicated their consent to receive faxes). The parties should have the opportunity to develop the record on this issue.

Furthermore, we believe that the Afgo Court's reasoning on many of the aspects of how the class might or might not pass muster under Rule 23 were conclusory and subject to debate. First, it is not clear that, as a matter of law, differences regarding consent are sufficient to defeat class certification. In Hinman v. M M Rental Center, Inc., 545 F.Supp.2d 802 (N.D. Ill. 2008), the district court rejected the defendant's argument that considerations of consent and receipt of faxes are individualized questions so as to defeat class certification and noted that "commonality and typicality are generally met where, as here, a defendant engages in a standardized course of conduct vis-à-vis the class members, and plaintiffs' alleged injury arises out of the conduct." 545 F.Supp.2d at 806-07 (citing Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998)). The defendant had argued that, because the TCPA applies only to unsolicited faxes, individual analysis is required to determine whether each class member consented to transmission of the faxes in question. The court nonetheless found that the class members met Rule 23's commonality requirement. It pointed out that the defendant's fax broadcasts were transmitted en masse based on a "leads" list compiled several years earlier and that, under these circumstances, the consent question could be understood as a common question. "The possibility that some of the individuals on the list may separately have consented to the transmissions at issue is an insufficient basis for denying certification." Id. at 807. But see Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D.Pa. 1995) (denying certification of TCPA claim based on "inherently individualized" question of consent).

Second, the Afgo Court stated that a class action would not be a superior method of handling claims under the TCPA. We are not so sure this is correct. The Afgo Court's suggestion that the individual statutory damages of $500 to $1500 are enough to both punish offenders and spur victims substitutes its judgment for that of Congress and makes unmerited presumptions regarding deterrence and the motivation to litigate. Had Congress wanted to preclude aggregation of individual TCPA claims, it could have so provided in the TCPA itself or in CAFA, which specifically lists certain types of statutory claims that could not be brought as class actions. 28 U.S.C. § 1332(d). CAFA lists various other statutes, but not the TCPA. Moreover, although nuisance faxes, are not the most egregious of wrongs policed by Congress, the District Court was speculating when it assumed that individual suits would deter large commercial entities as effectively as aggregated class actions and that individuals would be as motivated — or even more motivated — to sue in the absence of the class action vehicle. The District Court should not have dismissed out of hand the possibility that a class action could provide a superior method of "fairly and efficiently adjudicating the controversy," as required by Rule 23(b)(3). Although individual actions under the TCPA may be easier to bring in small claims court than other types of cases, that does not necessarily undermine the greater efficiency of adjudicating disputes involving 10, 000 faxes as a single class action. Indeed, as plaintiffs point out, we have little reason to believe that individual actions are automatically efficient; plaintiffs can still face protracted litigation when they sue individually.

The Afgo Court also states, without citation, that New Jersey law would govern the substantive aspects of a TCPA case brought under a federal court's diversity jurisdiction and that New Jersey would not permit class actions in a case such as this. As we noted above, this is neither relevant nor correct.

Finally, where common issues certainly exist, a district court might consider sub-classing in lieu of decertification. The Hinman court, for example, noted the viability of defining the class to include only individuals who did not consent. "[B]y certifying a class of individuals who received unsolicited faxes," the court explained, it was" `merely setting the boundaries of the class' not resolving the substantive issues.'" Hinman, 545 F.Supp.2d at 807 (internal quotation marks and citation omitted). See Chiang v. Veneman, 385 F.3d 256, 268-69 (3d Cir. 2004) (rather than decertifying a class, choosing the "less drastic course" of "simply modify[ing] the class definition"); Simer v. Rios, 661 F.2d 655, 672 n. 29 (7th Cir. 1981) ("[Decertification] ignores the possibility of subclassing, a viable alternative in resolving such problems.").

Discovery is necessary for the district court to conduct the "rigorous analysis" it is tasked with at this stage, and more than speculation and supposition is needed to say that any vehicle is really superior. A more robust record must be developed here as to the precise nature of the class claims. Accordingly, we will vacate the orders of the District Court dismissing these three cases and remand for further proceedings consistent with this opinion.