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The U.S. Supreme Court will review an Eleventh Circuit ruling that a plaintiff provided the court with no reason to reconsider its precedent holding that, since Congress granted state courts exclusive jurisdiction over private actions under the Telephone Consumer Protection Act, federal courts do not have subject matter jurisdiction over such private actions brought under the Act.
In his motion asking the court to reconsider the court's binding precedent, established in Nicholson v. Hooters of Augusta, Inc.,136 F.3d 1287, 1288-89 (11th Cir. 1998), modified, 140 F.3d 898 (11th Cir. 1998), Marcus D. Mims pointed to two Supreme Court cases and one Seventh Circuit case for support. The Eleventh Circuit, however, was not persuaded because neither Grable & Sons Metal Products, Inc. v. Darue Eng'g, 545 U.S. 308 (2005), nor Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691 (2003), considered the TCPA, and neither explicitly or implicitly overrules the precedent at issue. (See U.S. v. Kaley, 579 F.3d 1246, 1255.)
The Eleventh Circuit also explained that the Seventh Circuit's decision in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005), does not overturn its precedent. (See Kaley, 579 F.3d at 1255.) Therefore, the Eleventh Circuit held, the district court “properly dismissed Mims' complaint for lack of subject matter jurisdiction.” In his successful petition for certiorari, Mims posed the following question: Did Congress divest the federal district courts of their federal question jurisdiction under 28 U.S.C. §1331 over private actions brought under the TCPA? (Mims v. Arrow Financial Services LLC, U.S., No. 10-1195, cert. granted, 6/27/11).
Counsel for plaintiff were Deepak Gupta and Scott L. Nelson, Public Citizen Litigation Group, Washington, and Donald Yarbrough, Law Office of Donald A. Yarbrough, Fort Lauderdale, Fla. Counsel for defendant was Barbara A. Sinsley, Barron, Newburger & Sinsley, PLLC, Austin, Texas.
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