Imhoff Investment, LLC v. ALFOCCINO OF AUBURN HILLS, INC., and ALFOCCINO, INC.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0402n.06
No. 10-1998
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IMHOFF INVESTMENT, LLC,
Plaintiff-Appellant,
v.
ALFOCCINO OF AUBURN HILLS, INC.,
and ALFOCCINO, INC.,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.
PER CURIAM. The plaintiff, Imhoff Investment, LLC, appeals the district court’s
order dismissing its complaint for lack of subject-matter jurisdiction. Imhoff brought a claim
pursuant to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(3), which
provides for a private right of action in state court. The district court dismissed the
complaint, holding that the TCPA did not confer federal-question jurisdiction. 28 U.S.C.
§ 1331. In doing so, the district court correctly noted that the majority of circuit courts
addressing this issue have held that the TCPA does not authorize a private cause of action
in federal court and that jurisdiction in section 227(b)(3) cases lies exclusively in state
court. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (“We join the Second,
Third, Fourth, Fifth, and Eleventh Circuits in the somewhat unusual conclusion that state

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No. 10-1998
Imhoff Investment v. Alfoccino of Auburn Hills
courts have exclusive jurisdiction over a cause of action created by a federal statute, the
Telephone Consumer Protection Act of 1991.”) (internal quotation marks omitted),
abrogated on other grounds by Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012).
Nevertheless, while the instant appeal was pending, another panel of this court
reached a conclusion contrary to the majority rule, interpreting the TCPA to confer non-
exclusive jurisdiction over private actions filed in state court under section 227(b)(3). See
Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463 (6th Cir. 2010) (“[T]he district court
had federal-question jurisdiction over the claims under the Telephone Act and pendent
jurisdiction over the rest of the claims.”). We have long held that a “panel of this [c]ourt
cannot overrule the decision of another panel.” Salmi v. Sec’y of Health & Human Servs.,
774 F.2d 685, 689 (6th Cir. 1985). Thus, Charvat “remains controlling authority [in the
Sixth Circuit] unless an inconsistent decision of the United States Supreme Court requires
modification of the decision or this [c]ourt sitting en banc overrules the prior decision.” Id.
In the absence of either occurrence, we conclude that the district court has subject-matter
jurisdiction in this case and, therefore, REVERSE the judgment of the district court and
REMAND the matter for further proceedings.
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