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Michael v. Charter Communications, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 27, 2019

ALEX MICHAEL, Plaintiff,



         This matter is before the Court for determination of whether plaintiff's claims are time-barred and whether he has standing to proceed. The parties appeared for oral argument and have submitted extensive briefs on these issues. All matters are pending before the undersigned United States Magistrate Judge with the consent of the parties, pursuant to 28 U.S.C. § 636(c).

         I. Background

         Plaintiff Alex Michael alleges that he was a subscriber of defendant Charter Communications, Inc., from July 2007 through May 2009. Plaintiff states that defendant advertised and marketed that its services were provided for monthly itemized rates on a no-contract basis. He alleges that, contrary to its representations, defendant failed to disclose that, in addition to collecting subscribers' fees, it would sell to third parties subscribers' personally identifiable information (PII), including names, addresses, and subscription information. In his second amended complaint, plaintiff alleges that defendant sold his PII “numerous times to numerous parties” both while he was a subscriber and after he terminated his service relationship with defendant. Second Amended Complaint at ¶ 17 [Doc. # 33]. He alleges that defendant's actions violated the Cable Communications Act of 1984 (the Cable Act), 47 U.S.C. §§ 551 et seq., and the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat. §§ 407.010 et seq. In addition, plaintiff asserts common-law claims for conversion and unjust enrichment. He seeks to certify a nationwide class of individuals who subscribed to receive Charter services between January 2005 and September 2014.

         II. Discussion

         Plaintiff asserts that defendant committed five violations of the Cable Act. First, Charter failed to deliver privacy notifications, in violation of § 551(a)(1), both when the parties entered into a service agreement (Count I), and at least once a year thereafter during his subscription (Count II). In addition, he alleges that, even if defendant had provided him with its privacy notifications, they were not clearly and conspicuously worded and thus violated § 551(a)(1)(A)-(E) (Count III). He also alleges that defendant failed to obtain his prior written or electronic consent before disclosing his PII, in violation of § 551(c)(1) (Count IV). Finally, he alleges that defendant failed to provide its subscribers an opportunity to prohibit or limit disclosures, in violation of § 551(c)(2)(C) (Count V). In Count VI, plaintiff asserts that defendant violated the MMPA by offering its services without disclosing that his PII would be sold. He also asserts claims for conversion (Count VII) and unjust enrichment (Count VIII) arising from defendant's alleged sale of his PII.

         A. Preliminary Matters

         Plaintiff asserts in his statute-of-limitations brief that his claims are brought pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332. This assertion is at odds with plaintiff's jurisdictional statement in his complaint [Doc. # 1 at ¶ 6]; first amended complaint [Doc. # 23 at ¶ 5]; and second amended complaint [Doc. # 33 at ¶ 6], in which he asserts that he has “statutory standing” under 47 U.S.C. § 551(f). Nowhere in his pleadings does plaintiff cite diversity of citizenship as the basis of this Court's subject matter jurisdiction nor has he made the required factual allegations regarding the citizenship of all parties and the amount in controversy. Thus, to the extent that plaintiff now insists that his action arises under diversity jurisdiction, it is subject to dismissal without prejudice. Even if the Court assumes that plaintiff has properly pleaded diversity jurisdiction, however, the analysis of the limitations period that applies to plaintiff's Cable Act claims remains the same. Furthermore, even if a state statute of limitations applies to plaintiff's Cable Act claims, federal common law dictates when his federal causes of action accrued and whether the statute of limitations was tolled.[1] Johnson v. Precythe, 901 F.3d 973, 980-81 (8th Cir. 2018) (discussing § 1983 claim); see Powell v. Tordoff, 911 F.Supp. 1184, 1193-94 (N.D. Iowa 1995) (citing cases); Harris v. Ford Motor Co., 635 F.Supp. 1472, 1473 (E.D. Mo. 1986) (“Questions of when a federal cause of action accrues and whether it is tolled by subsequent conduct are federal questions to be determined by federal law.”); see also 19 Charles Alan Wright, et al., Fed. Pract. & Procedure § 4519 (3d ed.) (“[F]ederal law usually has been held to govern the time of a claim's accrual, regardless of the source of the limitations period being applied by the court or the basis of the court's subject matter jurisdiction.”).

         Plaintiff also objects to the Court addressing the statute of limitations issue in the absence of a motion from defendant. The Court notes, however, that defendant asserted in its affirmative defenses that plaintiff's claims were barred by statutes of limitations. Furthermore, a named plaintiff whose claims are time-barred lacks standing to bring an action on behalf of a class. City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1102-04 (11th Cir. 2002).

         With these preliminary matters addressed, the Court turns to the parties' arguments on the appropriate statute of limitations.

         B. Statute of Limitations

         In a declaration submitted on May 31, 2018, plaintiff states that he was a Charter subscriber from July 2007 through May 2009. [Doc. # 56-1]. He never received “a separate written statement informing [him] of [his] privacy rights and how Charter would use [his] personally identifiable information.” He never received a privacy statement in any form while he was a Charter customer-subscriber. Id. at ¶ 8. He declares that he “first became aware of Charter's illegal business practices that compromised my privacy rights and personally identifiable information shortly before filing this lawsuit in December of 2016. Prior to December 2016, I was not aware Charter was under a legal obligation to provide me a separate, written statement that clearly and conspicuously informed me of how Charter would use my personally identifiable information or was disclosing my personally identifiable information to third parties. I have never given Charter consent to disclose my personally identifiable information to third parties.” Id. at ¶ 10. The declaration does not state that plaintiff ever became aware that Charter disclosed his PII, let alone provide a date by which he learned of an improper disclosure. Plaintiff states in his reply memorandum that his “latest-in-time item of damage . . . occurred in June 2013 or 2014.” [Doc. # 66 at 4].

         The Cable Act does not include a statute of limitations for private causes of action. See, e.g., Joe Hand Promotions, Inc. v. Mooney's Pub Inc., No. 14-CV-1223, 2014 WL 4748272, at *4 (C.D. Ill. Sept. 24, 2014); J & J Sports Prods., Inc. v. Orellana, No. CIV.A. H-11-0574, 2011 WL 3021861, at *1 (S.D. Tex. July 22, 2011) (“When Congress amended the FCA with the Cable Act in 1984, Congress did not provide a statu[t]e of limitations.”); Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc., 98 F.Supp.2d 958, 960 (N.D. Ill. 2000) (“We begin with the observation that the only reason that there is any dispute about the applicable statute of limitations is that when enacting . . . the Cable Act, Congress failed to provide a statute of limitations.”) While Congress has provided a four-year “default” statute of limitations for any federal statutory cause of action for laws enacted after December 1, 1990, 28 U.S.C. § 1658, the portions of the Cable Act at issue here were enacted in 1984 and this catchall statute of limitations provision does not apply.

         When Congress fails or declines to specify a statute of limitations, “[g]enerally, we presume that Congress intended courts to apply the most closely analogous state statute of limitations.” Syed v. Hercules, Inc., 214 F.3d 155, 160 (3d Cir. 2000) (citing DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158 (1983)). The Supreme Court has emphasized that state law is the “lender of first resort” in determining the correct statute of limitations. See North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (noting that, since 1830, state statutes supplied the periods of limitations for federal causes of action when the federal legislation made no provision). The rule has “enjoyed sufficient longevity that we may assume that, in enacting remedial legislation, Congress ordinarily ‘intends by its silence that we borrow state law.'” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. ...

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