The opinion of the court was delivered by: MOSKOWITZ
This matter comes before the Court on the Court's Order To Show Cause as to why this action should not be dismissed for lack of subject matter jurisdiction. Plaintiff John Murphey, a practicing attorney, brought this action in pro per, alleging violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(C), which prohibits the use of any telephone facsimile machine to send an unsolicited advertisement to another telephone facsimile machine. (This provision is sometimes referred to affectionately as the "Junk Fax Act.") Murphey alleges that defendants sent unsolicited telephone facsimiles to his place of business. Murphey seeks an injunction against further violations, as well as $ 850 in damages. For the reasons stated below, the Court dismisses this action for lack of subject matter jurisdiction.
The sole basis of statutory jurisdiction plaintiff invokes is that conferred by 28 U.S.C. § 1331. (See Cmplt. at P 1) Plaintiff does not allege that there exists diversity of citizenship between him and any defendant. Consequently, whether this Court has subject matter jurisdiction over the action turns exclusively on whether such jurisdiction is conferred by § 1331.
I. Federal Question Jurisdiction Under § 1331
Pursuant to § 1331, a district court "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Generally, a suit "arises under" the law that creates the cause of action. See Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 773 (9th Cir. 1995) (citing, inter alia, American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 60 L. Ed. 987, 36 S. Ct. 585 (1916) (Holmes, J.)). Thus, if federal law creates a plaintiff's cause of action, § 1331 jurisdiction will generally be present. Alternatively, § 1331 jurisdiction may be present if a substantial question of federal law is a necessary element of the plaintiff's cause of action. Id. These traditional formulations of "arising under" jurisdiction are based on the venerable principle that a plaintiff must present a federal question on the face of his well-pleaded complaint in order to successfully invoke federal question jurisdiction under § 1331. See Rivet v. Regions Bank of Louisiana, 139 L. Ed. 2d 912, 118 S. Ct. 921, 925 (1998) (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908)).
Despite the reliability of these traditional formulations of federal question jurisdiction, it must be remembered that district courts have only that jurisdiction which Congress grants through statute. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L. Ed. 1147 (1850). Consequently, courts "have occasionally found that formally federal causes of action were not properly brought under federal question jurisdiction." Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 814 n.12, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986); see also Shoshone Mining Co. v. Rutter, 177 U.S. 505, 44 L. Ed. 864, 20 S. Ct. 726 (1900) (holding no federal question jurisdiction exists over suits authorized by federal statute to determine mining claims).
Similarly, alleging violation of a federal statute is not always sufficient to invoke federal question jurisdiction. See Cannon v. University of Chicago, 441 U.S. 677, 688, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). "What ultimately must be determined is whether Congress intended to create the private remedy asserted." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979).
In the end, jurisdiction turns on congressional intent. Despite the existence of general federal question jurisdiction provided by § 1331, jurisdiction over a formally federal cause of action may be lacking based upon the terms of a particular statute, as enacted by Congress.
II. Jurisdiction Over Actions Arising Under § 227
The TCPA makes it is unlawful for any person within the United States to "use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1)(C). To facilitate private enforcement of this prohibition, § 227(b)(3) contains an explicit private right of action:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State--
(A) an action based on a violation of this subsection or the regulations prescribed under this ...