In Gomez v. Campbell-Ewald Co., 2013 WL 655237 (C.D.Cal. 2013), Judge Gee found that a claim against a contractor that sent text messages to cellular telephone as part of the US Navy’s marketing campaign fell within the TCPA’s 4-year federal catch-all statute of limitations.
In its motion for judgment on the pleadings, Defendant contends that Plaintiff’s claim is time-barred by an Illinois two-year statute of limitations because Plaintiff filed his complaint almost four years after he received the allegedly unlawful text message at issue in this case. The crux of Defendant’s position is that Congress intended for courts to apply state law to TCPA claims and, therefore, the state statute of limitations applies to such claims. Since the time that Defendant filed its motion, however, the United States Supreme Court issued its decision in Mims v. Arrow Financial Services, LLC, ––– U.S. ––––, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012). In Mims, the Supreme Court clarified that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA and uniform application. The Supreme Court also noted that, in enacting the TCPA, Congress “enacted detailed, uniform, federal substantive prescriptions and provided for a regulatory regime administered by a federal agency” and that “TCPA liability thus depends on violation of a federal statutory requirement or an FCC regulation, §§ 227(b)(3)(A), (c)(5), not on a violation of any state substantive law.” Id. at 751. ¶ In light of the Supreme Court’s ruling in Mims that the TCPA is intended to have uniform application, the Court finds that the four-year statute of limitations in 28 U.S.C. § 1658 applies to TCPA claims.FN2 [FN2. The federal “catchall” limitations statute, 28 U.S.C. § 1658 provides that: Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues. 28 U.S.C. § 1658. A cause of action is governed by 28 U.S.C. § 1658 “if the plaintiff’s claim against the defendant was made possible by a post–1990 enactment.” Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 382 (2004). The TCPA was enacted in 1991.] The Court therefore denies Defendant’s motion for judgment on the pleadings.
Judge Gee granted summary judgment, however, to the contractor on the basis of derivative sovereign immunity in that the contractor could avail itself of immunity afforded to the US Navy against liability under the TCPA.