Fair v. Verizon Communications Inc.

14-2194
Fair v. Verizon Communications Inc., et al.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of October, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 Avon E. Fair,
14
15 Plaintiff-Appellant,
16
17 v.
18 14-2194
19
20 Verizon Communications Inc.,
21 Verizon Inc., Verizon, et al,
22
23 Defendants-Appellees.
24 _____________________________________
25
26
27 FOR PLAINTIFF-APPELLANT: Avon E. Fair, pro se, New
28 York, NY.
29
30
 1 FOR DEFENDANTS-APPELLEES: Joseph A. D’Avanzo,
2 Esq., Ledy-Gurren, Bass,
3 D’Avanzo & Siff LLP,
4 White Plains, NY.
5
6 Appeal from a judgment of the United States District Court

7 for the Southern District of New York (Kaplan, J.).

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

9 DECREED that the judgment of the district court is AFFIRMED.

10 Appellant Avon E. Fair, pro se, appeals the district court=s

11 dismissal for lack of subject matter jurisdiction of her

12 disability discrimination claims under Section 255 of the

13 Telecommunications Act of 1996, 47 U.S.C. § 255, and of her

14 state law fraud and breach of contract claims. We assume the

15 parties= familiarity with the underlying facts, the procedural

16 history of the case, and the issues on appeal.

17 When reviewing the dismissal of a complaint for lack of

18 subject matter jurisdiction, we review the district court’s

19 factual findings for clear error and its legal conclusions de

20 novo. Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012).

21 Upon review, we conclude that the district court correctly ruled

22 that it lacked diversity jurisdiction because the parties were

23 both citizens of New York State. However, the district court

24 erred by dismissing the Telecommunication Act claim for lack
 1 of federal question jurisdiction rather than for failure to

2 state a claim.

3 The Telecommunications Act expressly provides that

4 “[n]othing in this section shall be construed to authorize any

5 private right of action to enforce any requirement of this

6 section or any regulation thereunder.” 47 U.S.C. § 255(f).

7 Furthermore, it grants “exclusive jurisdiction with respect to

8 any complaint under this section” to the FCC. Id.

9 Determinations that a federal statute does not provide a

10 private right of action are typically subject to dismissal under

11 Federal Rule of Civil Procedure 12(b)(6) (the “Rules”) for

12 failure to state a claim. See, e.g., Republic of Iraq v. ABB

13 AG, 768 F.3d 145, 171 (2d Cir. 2014) (affirming district court’s

14 dismissal under Rule 12(b)(6) that Foreign Corrupt Practices

15 Act does not provide a private right of action); Lopez v. Jet

16 Blue Airways, 662 F.3d 593, 597 (2d Cir. 2011) (affirming

17 district court’s dismissal under Rule 12(b)(6) that the Air

18 Carrier Access Act does not provide a private right of action);

19 George v. NYC Dep't of City Planning, 436 F.3d 102, 103 (2d Cir.

20 2006) (affirming district court’s dismissal under Rule 12(b)(6)

21 that the Coastal Zone Management Act does not provide a private

3
 1 right of action). Here, the conclusion that § 255 provides no

2 private right of action is categorically supported by the

3 explicit text of § 255(f); but that does not compel a different

4 result here. Cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006)

5 (“A claim invoking federal-question jurisdiction under 28

6 U.S.C. § 1331 may be dismissed for want of subject-matter

7 jurisdiction if it is not colorable . . . .”). Since plaintiff

8 has asserted a cause of action under § 255, which § 255 provides

9 no private right of action, her § 255 claims must be dismissed

10 for failure to state a claim.

11 Accordingly, rather than vacate and remand the case to the

12 district court, we affirm the dismissal under Rule 12(b)(1) for

13 lack of diversity, and we affirm the dismissal of the

14 Telecommunications Act claims, albeit on different grounds,

15 under Rule 12(b)(6) for failure to state a claim. See Norex

16 Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir.

17 2010) (affirming under 12(b)(6) without remand a district

18 court’s 12(b)(1) dismissal for lack of federal question subject

19 matter jurisdiction in a case concerning the extraterritorial

20 application of civil RICO).

4
1 We have considered all of Fair’s remaining arguments and

2 find them to be without merit. Accordingly, we AFFIRM the

3 judgment of the district court.

4
5 FOR THE COURT:
6 Catherine O=Hagan Wolfe, Clerk

5