United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
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. 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
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).
these preliminary matters addressed, the Court turns to the
parties' arguments on the appropriate statute of
Statute of Limitations
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
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.
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