Critchfield Physical Therapy, P.C. v. Taranto Group, Inc., The

Filing 13

MEMORANDUM AND ORDER granting 6 Motion to Remand to State Court. Signed by District Judge Carlos Murguia on 4/16/2012. (YH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CRITCHFIELD PHYSICAL THERAPY,
P.C., d/b/a/ MONTGOMERY COUNTY
PHYSICAL THERAPY, individually and as
representative of a class of similarly situated
persons,
Plaintiff,
v.

THE TARANTO GROUP, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 12-2087-CM

MEMORANDUM AND ORDER
Plaintiff Critchfield Physical Therapy, P.C. d/b/a Montgomery County Physical Therapy,
brings this action individually and on behalf of a certified class against defendant The Taranto
Group, Inc.1 Plaintiff alleges that defendant’s unsolicited faxes violated the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227. The action was originally filed in the District Court of
Johnson County, Kansas, on November 1, 2007. On February 9, 2012, defendant filed a notice of
removal pursuant to the United States Supreme Court’s decision in Mims v. Arrow Financial
Services, L.L.C., __ U.S. __, 132 S. Ct. 740 (2012), holding that federal question jurisdiction exists
under 28 U.S.C. § 1331 for private claims for damages brought under the TCPA. The case is before
the court on Plaintiff Class’s Motion to Remand Again (Doc. 6). Plaintiff argues removal should be

1

The initial complaint named “Radha Geismann, M.D., P.C.” as plaintiff and “Aestheticare,
L.L.C. and the Taranto Group, Inc.” as defendants. (Doc. 1-2.) Aestheticare, L.L.C. was later
dropped as a defendant because the Taranto Group, Inc., was the correct corporate entity. Plaintiff
Critchfield intervened as the new named plaintiff by petition on November 12, 2008. (Doc. 1-3).

denied as untimely. Because the court concludes that the Mims decision does not provide a new
basis for removal, and because defendant’s notice of removal—filed several years after the
commencement of this action arising under federal law—is untimely, the court grants plaintiff’s
motion.
I.

Additional Facts
On December 10, 2007, within 30 days of the plaintiff filing the original complaint, then-

defendant Asetheticare, L.L.C. removed the action asserting subject matter jurisdiction pursuant to
28 U.S.C. § 1332(a) (general diversity). Judge Kathryn Vratil issued an order granting plaintiff’s
motion for remand and finding that defendant had failed to establish that any putative class member
asserted a claim for more than $75,000. Further, Judge Vratil declined to allow Aestheticare to
amend its notice of removal pursuant to 28 U.S.C. § 1653 to allege a new amount in controversy
under 28 U.S.C. § 1332(d) (class action jurisdiction – diversity and amount in controversy).
In that order, Judge Vratil noted that:
The TCPA is a federal law which generally prohibits the “use of any telephone
facsimile machine, computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C). Because the
TCPA 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” an action for
violation of the statute, id. § 227(b)(3), several circuit courts have determined that
claims under the TCPA do not involve federal questions, see Fun Servs. of Kansas
City, Inc. v. Hertz Equip. Rental Corp., No. 07-2244-CM, 2008 WL 341475, at *4 (D.
Kan. Feb. 6, 2008) (discussing circuit court opinions which reject federal question
jurisdiction under the TCPA). The Tenth Circuit has reserved ruling whether TCPA
claims may be asserted as federal questions, see U.S. Fax Law Ctr., Inc. v. iHire, Inc.,
476 F.3d 1112, 1115 n.3 (10th Cir. 2007), but has determined that diversity
jurisdiction may support such claims in federal court, see id. at 1117–18. Because
Aestheticare does not assert federal question jurisdiction as a basis of removal, the
Court need not consider whether TCPA claims may be brought as federal questions.
Geismann v. Aestheticare, LLC, 622 F. Supp. 2d 1091, 1094, n.2.
-2-

II.

Judgment Standard
This court has federal question jurisdiction over “all claims ‘arising under the Constitution,

laws, or treaties of the United States.’” Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th
Cir. 2003) (citing 28 U.S.C. § 1331). A defendant may remove a case filed in state court if the
plaintiff could have filed suit in federal court originally. 28 U.S.C. § 1441(a). The notice of removal
shall be filed within 30 days of defendant’s receipt of a copy of the initial pleading. 28 U.S.C. §
1446(b)(1). “[I]f the case stated by the initial pleading is not removable, a notice of removal may be
filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(2)(3). “Because the courts of the United States are courts
of limited jurisdiction, there is a presumption against federal jurisdiction.” Frederick & Warinner v.
Lundgren, 962 F. Supp. 1580, 1582 (D. Kan. 1997) (citing Basso v. Utah Power & Light Co., 495
F.2d 906, 909 (10th Cir. 1974)). “Doubtful cases must be resolved in favor of remand.” Thurkill v.
The Menninger Clinic, Inc., 72 F. Supp. 2d 1232, 1234 (D. Kan. 1999) (citing Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995)).
III.

Analysis
The 30-day time period contained in the removal statute is not a mere guideline. Once it is

expired, any attempt at removal is untimely unless some change in the nature of the action creates a
new basis for removal. From this court’ review of the case law and the commentary to the federal
rules, a new basis for removal will generally only arise from some change within the action itself; an
amended pleading, the addition of a party, or something similar. Generally, a decision in an
unrelated case is not an “order or other paper” that will trigger the 30-day removal period. See
McCormick v. Excel Corp., 413 F. Supp. 2d 967, 970–71 (E.D. Wis. 2006); Penn. v. Tap Pharm.
-3-

Prods. Inc., 415 F. Supp. 2d 516, 526–27 (E.D. Pa. 2005).
The Mims decision clearly indicates that the federal courts have concurrent
jurisdiction—rather than exclusive jurisdiction— over private TCPA claims. See Mims, __ U.S. at
__, 132 S. Ct. at 747. Mims did not, however, create this jurisdiction. Mims merely interpreted the
language of the statute. C.f. In re Mutual Funds Inv. Litig., 767 F. Supp. 2d 542, 545–46 (D. Md.
2011) (holding that removal was timely where filed within 30 days of appellate court mandate
holding claims were removable, but regardless, plaintiffs waived their right to object to timeliness of
removal through their affirmative activity in multidistrict litigation (MDL) settlement in federal
court); Haag v. Webster, 434 F. Supp. 2d 732, 734 (W.D. Mo. 2006) (holding that decisions from
other, unrelated cases may qualify as an “order or other paper” only if they “change the legal
landscape” by making a previously unremovable case removable); Landry v. Cross Country Bank,
431 F. Supp. 2d 682, 686 (S.D. Tex. 2003) (holding defendant timely removed state law usury action
after United States Supreme Court held state law usury claims against national banks were
completely preempted by National Bank Act; decision broadened the law rather than merely
clarifying it).
The release of a Supreme Court decision clarifying that claims under the TCPA can justify
federal question jurisdiction does not constitute a new basis for removal under 28 U.S.C. § 1446.
And the court disagrees with defendant’s suggestion that until the Mims decision was issued there
was no reasonable basis upon which to seek removal. Indeed, Judge Vratil’s order remanding the
action noted that the Tenth Circuit had reserved explicitly ruling whether TCPA claims may be
asserted as federal questions, see Geismann, 622 F. Supp. 2d at 1094, n.2. (citing U.S. Fax Law Ctr.,
Inc., 476 F.3d at 1115 n.3). Judge Vratil’s order specifically noted that, because defendant did not
raise federal question jurisdicition as a basis for removal, the court did not need to consider it. This
-4-

defendant could have pursued removal on the basis that the defendant in Mims did, but chose not to.
Removal statutes are strictly construed and the court resolves all doubts against removal.
Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The court concludes that the
Mims decision does not provide a new basis for removal, and defendant’s notice of removal—filed
several years after the commencement of this action arising under federal law—is untimely.
IT IS THEREFORE ORDERED that Plaintiff Class’s Motion to Remand Again (Doc. 6) is
granted.
Dated this 16th day of April, 2012, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-5-