Removing a TCPA Case to Federal Court: When It Helps the Defense

Thirty days. That’s usually how long a company sued in state court under the Telephone Consumer Protection Act has, after formal service of the complaint, to move the case to federal court. Removal brings federal class-action rules, the federal test for expert testimony, and the circuit’s TCPA case law. It can also backfire: a defendant that removes and then shows the plaintiff lacks Article III standing usually gets the case sent back to state court, not dismissed. Made deliberately, the removal decision shapes every defense that follows.

Can a TCPA lawsuit filed in state court be moved to federal court?

Yes, when the complaint pleads a TCPA claim. The statute’s private right of action says a person may sue “in an appropriate court of that State,” under 47 U.S.C. § 227(b)(3), and several federal appeals courts had read that language to keep private TCPA suits out of federal court. The Supreme Court ended that reading in Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012): “We hold, therefore, that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA.”

A TCPA claim arises under federal law for purposes of 28 U.S.C. § 1331, and a defendant may remove a state-court case that a federal court could have heard in the first place under 28 U.S.C. § 1441(a).

When does the 30-day removal clock start?

It usually starts with formal service. The removal statute provides that “The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based,” per 28 U.S.C. § 1446(b)(1), or 30 days after service of the summons if the complaint was filed but need not be served, whichever ends first. In Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the Supreme Court held that a courtesy copy alone doesn’t start the clock. It starts with service of the summons and complaint, or with receipt of the complaint after the summons was served, “but not by mere receipt of the complaint unattended by any formal service.”

When a case is removed only under § 1441(a), every defendant that has been properly joined and served has to join in or consent under § 1446(b)(2)(A), so a co-defendant vendor that won’t cooperate can block a federal-question removal. A later-served defendant gets its own 30 days from its own service under § 1446(b)(2)(B). And if the original complaint wasn’t removable, an amended pleading that adds a TCPA count opens a new 30-day window under § 1446(b)(3).

I’d calendar the deadline the day the complaint arrives.

What happens to state mini-TCPA claims joined to the case?

They usually come along, but they’re also the plaintiff’s route back to state court. Several states have their own telemarketing statutes with private damages claims. In Florida, a called party aggrieved by a violation may recover “actual damages or $500, whichever is greater,” and a court may increase the award for willful or knowing violations, under the 2024 Florida Statutes, § 501.059(10). For text messages, the same subsection requires a STOP reply and a 15-day cure period before suit.

When a complaint pleads both a TCPA count and a Florida count over the same calls, the federal court can hear the state claim under 28 U.S.C. § 1367(a), which reaches claims “so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” If the court itself dismisses the federal claim, supplemental jurisdiction remains, but the court may, and ordinarily should, decline it under § 1367(c)(3) and return those claims to state court. Last month, the Supreme Court held in Royal Canin U.S.A., Inc. v. Wullschleger, No. 23-677 (Jan. 15, 2025), that “When an amendment excises the federal-law claims that enabled removal, the federal court loses its supplemental jurisdiction over the related state-law claims. The case must therefore return to state court.”

So a plaintiff can amend away the TCPA count (after the time to amend as of right, only with the company’s consent or the court’s leave) and seek a remand, or plead only the state statute from the start. For a class case, that’s where the Class Action Fairness Act comes in. When a class action meets CAFA’s requirements, I’d plead CAFA in the notice of removal as a separate ground even if a TCPA count is also there. CAFA is its own grant of original jurisdiction over the state-law claims, so it doesn’t rest on the federal count surviving, though the plaintiff can still contest CAFA’s own requirements.

How does CAFA removal work for a TCPA class action?

CAFA opens federal court to class actions that put more than $5,000,000 in combined exposure at stake, with minimal diversity and at least 100 class members. The district courts have original jurisdiction of a class action in which “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs” and any class member is a citizen of a different state from any defendant, under 28 U.S.C. § 1332(d)(2). Class members’ claims are aggregated under § 1332(d)(6), and the statute doesn’t apply when the proposed classes total fewer than 100 members under § 1332(d)(5)(B). On the plaintiff’s theory, $500 per violation across more than 10,000 alleged violations puts more than $5,000,000 in controversy, before the higher amount of up to $1,500 per violation for willful or knowing conduct.

A class action “may be removed by any defendant without the consent of all defendants,” and without regard to whether a defendant is a citizen of the forum state, under 28 U.S.C. § 1453(b).

Burdens:

The removing defendant proves jurisdiction. The notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” and “no antiremoval presumption attends cases invoking CAFA,” according to Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 (2014). If the plaintiff contests the amount or the court questions it, both sides submit evidence. The Ninth Circuit stated the tiebreaker in Ibarra v. Manheim Investments, Inc., 775 F.3d 1193 (9th Cir. 2015): “if the evidence submitted by both sides is balanced, in equipoise, the scales tip against federal-court jurisdiction.”

The plaintiff proves any exception. CAFA requires a court to decline jurisdiction under the local-controversy and home-state exceptions in § 1332(d)(4), and lets it decline under § 1332(d)(3), after weighing listed factors, when more than one-third but less than two-thirds of the proposed class members and the primary defendants are citizens of the forum state. In the Ninth Circuit, “the party seeking remand bears the burden to prove an exception to CAFA’s jurisdiction,” per Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir. 2007).

If the declaration supporting the amount in controversy counts calls from the company’s own records, it will be read again at class certification. Count what the complaint puts in controversy and never concede that any call violated anything. The number is the plaintiff’s theory, not the company’s admission.

Why can removing and then challenging standing backfire?

Because a federal court without jurisdiction has to send the case back, not end it. The remand statute is mandatory: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded,” under 28 U.S.C. § 1447(c). Article III standing is part of subject-matter jurisdiction, so in the Ninth Circuit a successful standing challenge in a removed case generally produces a remand.

The Ninth Circuit applied that rule to a CAFA removal in Polo v. Innoventions International, LLC, 833 F.3d 1193 (9th Cir. 2016). There, the district court found that the named plaintiff in a removed class action lacked standing and dismissed the case. The Ninth Circuit reversed, holding that “The rule that a removed case in which the plaintiff lacks Article III standing must be remanded to state court under § 1447(c) applies as well to a case removed pursuant to CAFA as to any other type of removed case.” The court explained that state courts aren’t bound by Article III, citing ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989), where the Supreme Court said “the constraints of Article III do not apply to state courts.”

That’s the trap: the company wins the motion and loses the forum. The case goes back to a state court that applies its own standing rules, and § 1447(c) also says “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Under Martin v. Franklin Capital Corp., 546 U.S. 132 (2005), courts may award fees “only where the removing party lacked an objectively reasonable basis for seeking removal,” absent unusual circumstances. But in my judgment, a defendant arguing that the federal court never had jurisdiction over the case it removed is handing the plaintiff a fee argument.

In the Ninth Circuit, I’d expect a standing attack on a named plaintiff who received unsolicited telemarketing calls or texts to be uphill anyway. The court reasoned in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), that “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.”

Standing helps the defense in federal court in one place: the class. In TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), the Supreme Court held that “Every class member must have Article III standing in order to recover individual damages.” A class that sweeps in people who never received the calls can be challenged on that ground. The Court left open “whether every class member must demonstrate standing before a court certifies a class,” but the argument is available by the damages stage either way, and it fits a forum the company chose. So I sort the standing arguments before removing. If the best defense is that the named plaintiff has no injury, removal only buys a remand, and the company may be better off defending under the state court’s own standing rules and on the merits. If the best defense is that much of the class has no injury, federal court is the right place to make it.

What does the federal forum give a TCPA defendant?

Three things, though how much they differ from state court depends on the state.

Rule 23 and appellate review. Under Rule 23(f) “A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule.” An early appeal is real pressure when certification decides the settlement value.

Rule 702. When a TCPA class is built by a data expert who runs call records against carrier and Registry databases, Rule 702 matters. Federal Rule of Evidence 702, as clarified in 2023, admits expert testimony only “if the proponent demonstrates to the court that it is more likely than not that” the testimony meets each of the rule’s requirements. That gives a defendant a clear standard for challenging the expert, with full force at summary judgment and trial.

The circuit’s TCPA law. In federal court, the circuit’s published TCPA decisions bind the district judge. That cuts both ways. Whether the Hobbs Act requires district courts to accept the FCC’s legal interpretations is before the Supreme Court. The Supreme Court heard argument on January 21, 2025, according to its docket, in McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226. The question presented is “Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.” If the complaint rests on an autodialer theory, our post on autodialer claims after Duguid explains why that theory is narrower than it looks.

My view is that removal is the right default for a TCPA class action and a judgment call for an individual case.

Removal routes at a glance

What to do in the first days after service

1. Put a litigation hold on call and text logs, dialer and platform data, and the consent records for every number in the complaint.
2. Pull the opt-out and internal do-not-call records for those numbers, with the dates each request came in and was honored.
3. Pull the National Do Not Call Registry scrub records and the version dates used for the campaigns named in the complaint.
4. Collect the vendor and lead-source contracts, which also show which co-defendants must consent to removal, along with the scripts and recorded or AI-voice message files.
5. Talk to a lawyer before answering in state court, contacting the plaintiff, or offering anything to settle, because the removal clock is already running.

The firm’s page for TCPA defense attorneys in California covers how claims involving telemarketing calls and text messages are evaluated, from the records to the first response.

Questions businesses ask about TCPA removal

Can we remove a TCPA case that has only one plaintiff?

Yes. A TCPA claim arises under federal law, so removal doesn’t depend on the amount in controversy or on a class allegation. Whether it’s worth doing is a separate question, and I’d answer it case by case. For a small individual claim, federal litigation can cost more than the exposure.

Can a plaintiff keep a TCPA-style case in state court by suing only under state law?

Sometimes. A complaint that pleads only a state statute, such as Florida’s Telephone Solicitation Act, presents no federal question. An individual case can be removed on diversity grounds only if diversity is complete, more than $75,000 is in controversy, and no properly served defendant is a citizen of the state where the suit was filed. A class action may be removable under CAFA if its requirements are met, unless the plaintiff proves an exception.

If the federal court sends the case back, can we appeal?

Usually not. Section 1447(d) makes most remand orders unreviewable “on appeal or otherwise.” CAFA is the main exception: under § 1453(c)(1), a court of appeals may accept an appeal from an order granting or denying remand of a class action if the application is made within 10 days after the order is entered.

If your company was sued in state court

If your company has been served with a TCPA complaint in state court, the removal decision has to be made before most of the facts are in, and it shapes every defense that follows. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving telemarketing calls and text messages. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statutes are 47 U.S.C. § 227; the federal jurisdiction and removal statutes at 28 U.S.C. § 1331, § 1332, § 1367, § 1441, § 1446, § 1447, and § 1453; and Fla. Stat. § 501.059 (2024). Rules: Fed. R. Civ. P. 23 and Fed. R. Evid. 702.

The court decisions are Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (2012); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999); Royal Canin U.S.A., Inc. v. Wullschleger, No. 23-677 (U.S. Jan. 15, 2025); Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 (2014); Martin v. Franklin Capital Corp., 546 U.S. 132 (2005); ASARCO Inc. v. Kadish, 490 U.S. 605 (1989); TransUnion LLC v. Ramirez, 594 U.S. 413 (2021); Ibarra v. Manheim Investments, Inc., 775 F.3d 1193 (9th Cir. 2015); Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir. 2007); Polo v. Innoventions International, LLC, 833 F.3d 1193 (9th Cir. 2016); and Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017). The pending Supreme Court case is McLaughlin Chiropractic Associates v. McKesson Corp., No. 23-1226 (question presented; docket).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 22, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.