In Bais Yaakov of Spring Valley v. Peterson’s Nelnet, LLC, 2011 WL 1458779 (D.N.J. 2011), Judge Thompson allowed a TCPA class action to proceed in the district court under CAFA.
Here, Plaintiff’s First Amended Complaint alleges diversity jurisdiction under 28 U.S.C. § 1332(d) o n the grounds that “the matter in controversy concerning the TCPA exceeds t he sum or value of $5,000,000, exclusive of interests and costs, involves thousands of class members and is a class action in which at least one member of the class, i.e., Plaintiff, is a citizen of a state different from Defendant.” (First Am. Compl. ¶ 3). Plaintiff has sufficiently alleged diversity of citizenship by stating that Plaintiff’s principal place of business is in New York and Defendant’s principal place of business is in New Jersey. (Id. at ¶ 6–7.) Additionally, Plaintiff’s allegation that Defendant has “sent well over ten-thousand (10,000) unsolicited and/or solicited fax advertisements,” (id. at ¶ 18), would be sufficient to meet the $5,000,000 threshold for diversity jurisdiction, given that the TCPA provides for penalties of $500 per violation, see 47 U.S.C. § 227(b)(3)(B). Based on the Third Circuit’s Landsman decision, diversity jurisdiction under § 1332(d) provides a sufficient basis for this Court to exercise jurisdiction over this matter. Accordingly, Plaintiff’s class action may proceed assuming Rule 23’s requirements are met. However, it would be premature for this Court to decide the class certification issue on a motion to dismiss, prior to any discovery. Thus, we must deny Defendant’s motion to dismiss for lack of subject-matter jurisdiction.