Giovanniello v. ALM Media, LLC

726 F.3d 106

Earle GIOVANNIELLO, Plaintiff–Appellant,

v.ALM MEDIA, LLC, Defendant–Appellee.

Docket No. 10–3854–cv.

United States Court of Appeals, Second Circuit.

Argued: May 7, 2013.

Decided: Aug. 8, 2013.

Todd C. Bank, Kew Gardens, NY, for Plaintiff–Appellant.

Chad R. Bowman (Elizabeth C. Koch, on the brief), Levine Sullivan Koch & Schulz, L.L.P., Washington, D.C., for Defendant–Appellee.

Before: RAGGI, LOHIER, AND WALLACE,^* Circuit Judges.

J. CLIFFORD WALLACE, Circuit Judge:

This case returns to us on remand from the Supreme Court. Appellant Earle Giovanniello sought review of our decision in Giovanniello v. ALM Media, LLC, 660 F.3d 587 (2d Cir.2011), arguing that we erred in concluding that Connecticut state law dictated the statute of limitations that applies to a claim brought in federal court under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA). The Supreme Court granted Giovanniello's petition for certiorari, vacated our previous judgment, and remanded the case for further consideration in light of Mims v. Arrow Financial Services, LLC, –––U.S. ––––, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012). Giovanniello v. ALM Media, LLC, ––– U.S. ––––, 133 S.Ct. 159, 184 L.Ed.2d 1 (2012).

We conclude, in light of Mims, that federal law supplies the appropriate statute of limitations—here, four years, see28 U.S.C. § 1658(a)—rather than Connecticut state law. This holding, however, does not save Giovanniello's claim because we join every other circuit court to have addressed the issue and conclude that the tolling rule announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), extends only through the denial of class status in the first instance by the district court. As Giovanniello acknowledges, cutting off tolling at this point requires a conclusion that his September 8, 2009 filing was untimely. We therefore affirm the district court's judgment of dismissal.

I.

This case is the fourth attempt by Giovanniello to commence and prosecute a putative class action under the TCPA, 47 U.S.C. § 227(b)(1)(c), for an unsolicited fax advertisement that he allegedly received on January 28, 2004. We review briefly that history.

A.

Giovanniello alleges that on January 28, 2004, ALM Media, LLC (ALM) sent him an unsolicited fax advertisement. Giovanniello contends that he is merely one of at least 10,000 individuals who likewise received unsolicited fax advertisements sent by ALM. As a result, Giovanniello filed, on April 23, 2004, a putative class action complaint in Connecticut state court. On August 30, 2004, however, Giovanniello voluntarily withdrew his complaint. Less than a month later, on September 20, 2004, Giovanniello filed another complaint in Connecticut state court against ALM. Once again, Giovanniello voluntarily dismissed that complaint on June 27, 2005.

B.

On March 8, 2007, Giovanniello filed a third action against ALM under the TCPA in the Southern District of New York. On August 6, 2007, the district court dismissed Giovanniello's putative class action complaint for lack of subject-matter jurisdiction, concluding that the TCPA, though permitting diversity jurisdiction in federal court, looked to applicable state law to determine the availability of a class action in a particular case. Giovanniello v. New York Law Publ'g Co., No. 07 Civ. 1990, 2007 WL 2244321, at *4 (S.D.N.Y. Aug. 6, 2007). Because New York law did not permit a class action “predicated on statutory damages,” the district court concluded that the court lacked subject-matter jurisdiction to hear Giovanniello's putative class action. Id., applyingN.Y. C.P.L.R. § 901(b). The district court concluded that because Giovanniello could not maintain a class action, the maximum damages he could potentially receive as an individual claimant ($1500) fell short of the minimum amount required for diversity jurisdiction under 28 U.S.C. § 1332(a). Id.

Following dismissal, Giovanniello moved for reconsideration. The district court denied that motion. Giovanniello v. New York Law Publ'g Co., No. 07 Civ. 1990, 2007 WL 4320757 (S.D.N.Y. Dec. 11, 2007). On December 19, 2007, Giovanniello appealed from the judgment of dismissal and denial of reconsideration. The parties stipulated to a stay of the appeal pending resolution of another appeal involving a similar issue. After this court resolved the related appeal and issued a show cause order to Giovanniello, he failed to respond. We accordingly dismissed Giovanniello's appeal on February 9, 2009.

C.

On September 8, 2009, Giovanniello filed his fourth putative class action under the TCPA (the instant case) in United States District Court for the District of Connecticut. A year later, the district court concluded that, even assuming that the federal four-year statute of limitations applied, see28 U.S.C. § 1658(a), and that the statute of limitations was tolled during the pendency of Giovanniello's state suits through voluntary dismissal and during the pendency of Giovanniello's Southern District of New York action through dismissal, Giovanniello's filing was untimely. Giovanniello v. ALM Media, LLC, No. 3:09CV1409, 2010 WL 3528649, at *6 (D.Conn. Sept. 3, 2010). Giovanniello appealed.

On appeal, we held that the TCPA's “otherwise permitted by state law” provision required us to apply Connecticut state law, including any applicable statute of limitations, in determining whether Giovanniello's claim was time barred. Giovanniello, 660 F.3d at 593. We thus concluded that because Connecticut state law parallel to the TCPA, seeConn. Gen.Stat. § 52–570c(d), only provided for a two-year limitations period, regardless of whether tolling applied during the pendency of Giovanniello's prior actions, his fourth filing was necessarily untimely. 660 F.3d at 597. Subsequently, the Supreme Court granted Giovanniello's petition for certiorari, vacated our previous disposition, and remanded for further consideration consistent with its decision in Mims. Giovanniello, 133 S.Ct. 159. Thus, we must again address whether Giovanniello's September 8, 2009 claim was timely.

Giovanniello contends that Mims supports his argument that the federal catch-all statute of limitations applies, not Connecticut's two-year limitations period. Under the federal limitations period, Giovanniello contends that he had 1461 days to file his claim from the date he allegedly received the unlawful fax. Between January 24, 2004 (the day on which he allegedly received the unlawful fax), and September 8, 2009 (the day he filed the instant action), 2051 days passed. Giovanniello contends, however, that the pendency of his previous actions in their respective courts, through dismissal in each case, tolled the limitations period a total of 560 days. While recognizing that the resulting total (1491 days) is 30 days short of the total needed to make the filing in this case timely, Giovanniello asks us to conclude that the applicable limitations period was also tolled during either or both the pendency of his motion for reconsideration of the dismissal of his third filing in the Southern District of New York or his appeal from the judgment of dismissal in that same case. Because the pendency of reconsideration and appeal were each longer than 30 days, Giovanniello contends that if we extend tolling through either period, his September 8, 2009 class action was timely filed.

II.

We review de novo a district court's judgment of dismissal. City of Pontiac Gen. Emps'. Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir.2011). “We are free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.” United States v. Yousef, 327 F.3d 56, 156 (2d Cir.2003) (internal quotation marks omitted).

While we must determine whether the district court was correct that American Pipe tolling does not extend beyond denial of class status, we must first reach the predicate question of whether a federal or state limitations period applies here. See generally Board of Regents v. Tomanio, 446 U.S. 478, 485–86, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (indicating that the source of the applicable statute of limitations supplies the applicable “rules of tolling”); accord Pearl v. City of Long Beach, 296 F.3d 76, 80–81 (2d Cir.2002).

A.

28 U.S.C. § 1658(a) provides that “[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues.” See also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (explaining that “a cause of action ‘aris[es] under an Act of Congress enacted’ after December 1, 1990—and therefore is governed by § 1658's 4–year statute of limitations—if the plaintiff's claim against the defendant was made possible by a post–1990 enactment”).

Congress enacted the TCPA on December 20, 1991, over a year from the effective date of section 1658(a). See47 U.S.C. § 227. The TCPA does not contain a statute of limitations. That statute provides, however, that “[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State.” Id. § 227(b)(3).

We previously held that section 227(b)(3)'s “if otherwise permitted” language constituted an exception to the generally applicable catch-all limitations period in section 1658(a). Indeed, in our prior decision, we concluded that section 227(b)(3) is “ ‘unambiguous' in placing an express limitation on the TCPA [that] federal courts are required to respect’: a TCPA claim ‘cannot be brought if not permitted by state law.’ ” Giovanniello, 660 F.3d at 592,quoting Bonime v. Avaya, Inc., 547 F.3d 497, 502 (2d Cir.2008). We reasoned that the “if otherwise permitted” language indicates Congress's intent that states have a “ ‘fair measure of control’ ” over TCPA claims. Id. at...