Fischer v. Verizon New York, Inc.
- Ronnie Abrams
- 1:18-cv-11628
- U.S. District Court · Southern District of New York
- 4
In Fischer v. Verizon New York, Judge Abrams denied Fischer’s second request to move his robocall lawsuit back to state court.
James H. Fischer and Verizon New York, Inc. and Verizon Communications, Inc.; the case remained in federal court.
What happened
Fischer v. Verizon New York, Inc. concerns James H. Fischer’s claim that Verizon companies made repeated prerecorded calls to his home landline without his consent, violating federal and New York law.
Fischer asked the federal court a second time to send the case back to state court, arguing that some claims were too old or that the entire case should be returned. The court held that the request was filed too late and that the age of the claims did not affect federal jurisdiction.
Judge Ronnie Abrams denied the second motion to remand. The court said the federal four-year time limit would apply to the federal claims in either court, and the state-law claims would receive the same limitations period in federal court as in state court.
The detailed version
- Fischer v. Verizon New York, Inc. · No. 1:18-cv-11628
- Ronnie Abrams
- Nov. 4, 2019
Background
James H. Fischer, proceeding without a lawyer, sued Verizon New York, Inc. and Verizon Communications, Inc. in New York state court. He alleged that, between 2011 and 2017, the defendants repeatedly made prerecorded, automated calls to his home landline selling Verizon services without his prior consent. He asserted claims under the Telephone Consumer Protection Act, a federal law, and New York General Business Law § 399-p.
The defendants removed the case to the U.S. District Court for the Southern District of New York. Fischer filed a first motion to send the case back to state court, which the court denied on May 28, 2019. After the defendants answered the amended complaint and argued that claims based on calls more than four years earlier were barred by the Telephone Consumer Protection Act’s statute of limitations, Fischer filed a second motion to remand on June 14, 2019.
Issue
The second motion asked the court to return allegedly time-barred claims to state court or, alternatively, to return the entire case to avoid duplicative proceedings. Fischer did not argue that the federal court lacked subject-matter jurisdiction, meaning its legal authority to hear the case.
Court’s analysis
The court held that the second motion was untimely. Under 28 U.S.C. § 1447(c), a motion to remand based on a defect other than lack of subject-matter jurisdiction must be filed within 30 days after removal. Fischer filed this motion more than six months after the defendants removed the case. The court also explained that a statute of limitations is a defense, not a jurisdictional defect.
The court added that the motion would fail even if it had been timely. The federal four-year statute of limitations for Fischer’s Telephone Consumer Protection Act claims would apply whether the case was heard in federal or state court. The court also stated that it would apply the same limitations period to the New York-law claims that a state court would apply.
Disposition
The court denied Fischer’s second motion to remand and directed the Clerk of Court to terminate the motion at docket entry 62. This order addressed whether the case should remain in federal court; it did not decide the underlying robocall claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.