SIXTH DIVISION
June 29, 2007
No. 1-06-0459
FIRST CAPITAL MORTGAGE CORPORATION, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
UNION FEDERAL BANK OF INDIANAPOLIS, ) Honorable
) James F. Henry,
Defendant-Appellee. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
Must Illinois courts allow a private right of action under a
federal statute that provides for such a right? The Telephone
Consumer Protection Act of 1991 (the Act) (47 U.S.C. §227(b)(3)
(2000)) establishes a private right of action for its violation
"if otherwise permitted" by state court rules. We hold that the
Act requires Illinois courts to allow a private right of action
unless a neutral rule of judicial administration bars the cause.
Because we find no applicable rule that bars the cause of action
here, we find that the plaintiff has a right to pursue a claim
under the Act.
In 2004 First Capital Mortgage Corporation sued Union
Federal Bank of Indianapolis, alleging that defendant sent
plaintiff hundreds of unsolicited faxes between July 2002 and
October 2004. In count I plaintiff sought to recover under the
Act, and in count II plaintiff sued for conversion of its ink and
1-06-0459
paper for the faxed advertisements.
Defendant moved to dismiss count I, arguing that Illinois
does not permit a private right of action under the Act. The
trial court granted the motion with prejudice pursuant to section
2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West
2004). The court expressly found no just reason to delay appeal.
Plaintiff filed a timely notice of appeal.
Supreme Court Rule 304(a) gives this court jurisdiction over
the appeal. 155 Ill. 2d R. 304(a). We review the dismissal de
novo. Klinkner v. County of Du Page, 331 Ill. App. 3d 48, 50
(2002).
The Act provides:
"It shall be unlawful for any person ***
* * *
*** to use any telephone facsimile
machine, computer, or other device to send an
unsolicited advertisement to a telephone
facsimile machine ***[.]
* * *
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--
***
-2-
1-06-0459
*** an action to recover *** $500 in
damages for each *** violation [of the Act.]"
47 U.S.C.A. §227(b)(1)(C), (b)(3)(B) (2000).
Cases under the Act have focused on interpretation of the
phrase "if otherwise permitted." The parties agree that we
should interpret the phrase as an acknowledgment that state
courts need not change procedural rules to accommodate claims
under the Act. See Schulman v. Chase Manhattan Bank, 268 A.D.2d
174, 179, 710 N.Y.S.2d 368, 372 (2000); Accounting Outsourcing,
LLC v. Verizon Wireless Personal Communications, L.P., 329 F.
Supp. 2d 789, 798 (M.D. La. 2004). This approach comports with
the Supreme Court's reasoning in Howlett v. Rose, 496 U.S. 356,
110 L. Ed. 2d 332, 110 S. Ct. 2430 (1990), where the court said:
"Federal law is enforceable in state courts ***
because the Constitution and laws passed pursuant to it
are as much laws in the States as laws passed by the
state legislature. The Supremacy Clause *** charges
state courts with a coordinate responsibility to
enforce that law according to their regular modes of
procedure. * * *
* * *
*** A state court may not deny a federal right,
when the parties and controversy are properly before
-3-
1-06-0459
it, in the absence of 'valid excuse.' Douglas v. New
York, [New Haven & Hartford R.R. Co.], 279 U.S. 377,
387-388[, 73 L. Ed. 747, 752, 49 S. Ct. 355, 356]
(1929) (Holmes, J.). 'The existence of the jurisdiction
creates an implication of duty to exercise it.' Mondou
v. New York, [New Haven & Hartford R.R. Co.], 223 U.S.
1, 58[, 56 L. Ed. 327, 349, 32 S. Ct. 169, 178] (1912);
[citations].
***
*** When a state court refuses jurisdiction
because of a neutral state rule regarding the
administration of the courts, we must act with utmost
caution before deciding that it is obligated to
entertain the claim. [Citations.] The requirement that
a state court of competent jurisdiction treat federal
law as the law of the land does not necessarily include
within it a requirement that the State create a court
competent to hear the case in which the federal claim
is presented. * * * States may apply their own neutral
procedural rules to federal claims, unless those rules
are pre-empted by federal law." Howlett, 496 U.S. at
367-72, 110 L. Ed. 2d 347-51, 110 S. Ct. 2438-41.
Thus, the Act forms part of the law enforceable in Illinois
-4-
1-06-0459
courts. We use applicable rules of statutory interpretation to
determine whether the Act creates a private right of action. See
Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386
(1982). We look first to the language of the Act. See Krautsack
v. Anderson, 223 Ill. 2d 541, 553 (2006). The Act expressly
grants a private right of action, limited only by the
qualification that the action must be "otherwise permitted by the
laws or rules of court." 47 U.S.C. §227(b)(3) (2000).
The limitation allows state courts to apply "neutral rule[s]
of judicial administration" (Howlett, 496 U.S. at 374, 110 L. Ed.
2d at 352, 110 S. Ct. at 2442) to claims under the Act, and if
such rules bar a claim, the state court may dismiss it. Meehan
v. Illinois Power Co., 347 Ill. App. 3d 761, 766 (2004). The
court in Howlett gave three examples of such rules of judicial
administration. Thus, a state court appropriately applied forum
non conveniens to dismiss a federal claim where the doctrine
would also bar a similar state claim between the parties. See
State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S.
1, 95 L. Ed. 3, 71 S. Ct. 1 (1950). Where neither party involved
in a federal claim resided in the forum state, the state court
had authority to dismiss the claim. See Douglas, 279 U.S. 377,
73 L. Ed. 747, 49 S. Ct. 355 (1929). Similarly, the state court
correctly dismissed a federal claim that arose outside of the
-5-
1-06-0459
forum state. See Herb v. Pitcairn, 325 U.S. 77, 89 L. Ed. 1483,
65 S. Ct. 954 (1945).
Defendant claims that such a neutral rule of judicial
administration bars the claim here. It finds the rule in Reuben
H. Donnelly Corp. v. Brauer, 275 Ill. App. 3d 300 (1995).
According to Donnelly, Illinois courts will imply a private right
of action from a silent statute only if courts need such a cause
of action to achieve the purposes of the statute. Donnelly, 275
Ill. App. 3d at 311; see Parra v. Tarasco, Inc., 230 Ill. App. 3d
819, 824-25 (1992). Donnelly states a rule of statutory
construction (see Moore v. Lumpkin, 258 Ill. App. 3d 980, 989
(1994)), not a rule of judicial administration. Here we have no
need to look to rules for implying a private right of action.
The statute on its face expressly grants a private right of
action. Therefore Donnelly does not apply to interpretation of
the Act.
Defendant does not suggest that any rule of judicial
administration, like forum non conveniens, bars plaintiff's
claim.
The Act, including its express provision for a private right
of action, forms part of the law of Illinois. No neutral rule of
judicial administration bars plaintiff's cause of action against
defendant under the Act. Accordingly, we reverse the dismissal
-6-
1-06-0459
of count I of the complaint and we remand for further proceedings
in accord with this order.
Reversed and remanded.
FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.
-7-