United States District Court, Western District of Pennsylvania
January 12, 2000
MARK B. ARONSON, AND JOSEPH G. KANFOUSH, PLAINTIFFS,
SPRINT SPECTRUM, L.P., AND SPRINT COMMUNICATIONS COMPANY, L.P., EACH INDIVIDUALLY AND EACH DOING BUSINESS AS SPRINT PERSONAL COMMUNICATIONS SERVICES, DEFENDANTS.
The opinion of the court was delivered by: Ziegler, Chief Judge.
Pending before the court is the motion (doc. no. 2) of
defendants, Sprint Spectrum, L.P., Sprint Communications Company,
L.P., and Sprint Personal Communications Services (collectively
"Sprint"), to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) and the motion (doc. no. 5) of plaintiffs, Mark B.
Aronson and Joseph G. Kanfoush, to remand pursuant to
28 U.S.C. § 1447(c) for lack of jurisdiction. For the reasons that follow,
defendants' motion will be denied and plaintiffs' motion will be
On or about September 23, 1999, plaintiffs commenced this
action in the Court of Common Pleas of Allegheny County,
Pennsylvania, alleging invasion of privacy. Plaintiffs claimed
that defendants' account system improperly allowed any person
access to personal, confidential information. Specifically,
plaintiffs asserted that Sprint customers who accessed their
account information via the internet or the Sprint toll-free
customer service number (when answered by a live person) were
required to provide a predesignated secret account password
("PIN"). However, those persons accessing the toll-free number
and using automated customer service, or any person with a
wireless telephone that works on the Sprint network who dials "2
TALK," "2 SEND," "2 OK," or "2 CALL," could access account
information by inputting the five digit post office zip code of
the address where Sprint mails the monthly statement for that
Sprint telephone number. Plaintiffs asserted that a third party
could gain access to any Sprint customers' account if the third
party knew the telephone number and billing address zip code for
that customer, without using a PIN. Notwithstanding this
practice, plaintiffs did not allege that any third party had
gained access to their private accounts.
On or about October 29, 1999, Sprint removed the action to
federal court, asserting federal preemption of plaintiffs' state
law claims. Thereafter, Sprint filed the pending motion to
dismiss claiming that plaintiffs' state law claim is preempted by
section 222 of the Federal Telecommunications Act of 1996 and
that any claim for injunctive relief plaintiffs might
subsequently seek are unavailable because plaintiffs had not
exhausted available administrative remedies. Defs.' Br. at 4-10.
Plaintiffs filed a motion to remand the action, contending that
the court lacks jurisdiction to address the issues raised in the
state court complaint. We will consider these arguments below.
We will first consider plaintiffs' motion to remand for this
decision affects our jurisdiction over other pending matters,
including Sprint's motion to dismiss. Plaintiffs argue that
remand is warranted because this court lacks subject matter
jurisdiction over this controversy. Specifically, plaintiffs
reason that federal jurisdiction is wanting because the invasion
of privacy claim does not arise under the Federal
Telecommunications Act of 1996 ("FTA"), 47 U.S.C. § 151 et seq.
Rather, the "subject matter, the issues raised, and the relief
sought are each regulated by the Commonwealth of Pennsylvania. 66
Pa. C.S.A. § 1302 (Supp)." Pls.' Mot. ¶ 8.*fn1 Plaintiffs
further reason that jurisdiction cannot be exercised because the
Pennsylvania Public Utility Commission ("PUC") regulates Sprint's
practices. Pls.' Mot. ¶ 9. Finally, plaintiffs contend that
section 221 of the FTA supports the motion for remand*fn2 and
section 222 is irrelevant to the instant lawsuit. Defendants
rejoin that removal is appropriate because section 222 of the FCA
preempts state regulation in this area. Defs.' Br. in Opp'n Mot.
Dismiss at 5-10.
When confronted with a motion to remand, the removing party has
the burden of establishing the propriety of removal. See Packard
v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir.), cert.
denied sub nom. Upp v. Mellon Bank, N.A., 510 U.S. 964, 114
S.Ct. 440, 126 L.Ed.2d 373 (1993); accord Boyer v. Snap-On Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied,
498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991). Accordingly,
we will consider defendants' arguments initially.
Plaintiffs' state court complaint relies solely on state law.
Under 28 U.S.C. § 1441, only state court actions over which "the
district courts of the United States have original jurisdiction,
may be removed by the defendant." As the asserted basis of
federal jurisdiction in this case is 28 U.S.C. § 1331 (federal
question), see Doc. No. 1 ¶ 6, the "well-pleaded complaint
rule" applies. For a case to be removable under § 1441 and §
1331, the well-pleaded complaint rule requires the federal
question to be presented on the face of the plaintiff's properly
pleaded complaint. See Rivet v. Regions Bank of
La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998);
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct.
2425, 96 L.Ed.2d 318 (1987); Gully v. First Nat'l Bank,
299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936). In addition,
under this rule:
a case may not be removed to federal court on the
basis of a federal defense, including the defense of
pre-emption, even if the defense is anticipated in
the complaint, and even if both parties concede that
the federal defense is the only question truly at
Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (emphasis added);
Rivet, 522 U.S. at 475, 118 S.Ct. 921; Gully, 299 U.S. at
112, 57 S.Ct. 96.
The Supreme Court, however, has fashioned an "independent
corollary" to the well-pleaded complaint rule, known as the
"complete preemption doctrine." The complete preemption doctrine
provides that "Congress may so completely preempt a particular
area, that any civil complaint raising that select group of
claims is necessarily federal in character." Metropolitan Life
Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95
L.Ed.2d 55 (1987). In such cases, "any complaint that comes
within the scope of the federal cause of action [created by the
federal statute] necessarily `arises under' federal law" for
purposes of removal based on federal question jurisdiction.
Franchise Tax Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Rivet, 522
U.S. at 475-76, 118 S.Ct. 921.
The Supreme Court has narrowly interpreted the scope of the
complete preemption doctrine. Since 1968, the Court has found
complete preemption in only two settings: (1) claims alleging a
breach of a collective bargaining agreement that fall under § 301
of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185,
see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct.
1235, 20 L.Ed.2d 126 (1968), and (2) claims for benefits or
enforcement of rights under the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), see
Metropolitan Life, 481 U.S. at 63-67, 107 S.Ct. 1542. Indeed, in
a well-noted concurrence, Justice Brennan cautioned that, "[i]n
future cases involving [the application of the complete
preemption doctrine to] other statutes, the prudent course for a
federal court that does not find a clear congressional intent to
create removal jurisdiction will be to remand the case to state
court." Metropolitan Life, 481 U.S. at 68, 107 S.Ct. 1542.
Therefore, as with remand motions generally, all doubts should be
resolved against removal and in favor of remand to the state
court. See Boyer, 913 F.2d at 111.
The Court of Appeals, recognizing the limited basis for
"recharacterizing a state law claim as a federal claim removable
to district court," has articulated a two-prong test to determine
the applicability of the complete preemption doctrine. See
Railway Labor Executives. Ass'n v. Pittsburgh & Lake Erie R.R.
Co., 858 F.2d 936, 942 (3d Cir. 1988); see also Goepel v.
National Postal Mail Handlers Union, 36 F.3d 306, 311 (3d Cir.
1994), cert. denied, 514 U.S. 1063, 115 S.Ct. 1691, 131 L.Ed.2d
555 (1995). First, the purported preempting statute must contain
"civil enforcement provisions within the scope of which the
plaintiff's state claim falls." Railway, 858 F.2d at 942. If
this is satisfied, a district court then must determine "whether
there is a clear indication of a Congressional intention to
permit removal despite the plaintiff's exclusive reliance on
state law." Id. Nevertheless, it is only "a very limited area
in which a federal court . . . [may] recharacterize what purports
to be a state law claim as a claim arising under a federal
1. Civil Enforcement Provisions Within the FCA
Defendants contend that the first prong of the Railway test
is satisfied. The first
prong of the Railway test requires the Act, if it completely
preempts plaintiffs' state law claim, to contain civil
enforcement provisions within the scope of which plaintiffs'
state claim falls.
Sections 205 through 209 are the civil enforcement provisions
for the Act. Sections 205*fn3 and 206 makes common carriers
liable for damages sustained by any person as a consequence of
the carrier's actions in violation of the Act.*fn4 Sections
208*fn5 and 209*fn6 authorize any person or group of persons to
complain about violations of the Act to the Federal
Communications Commission ("FCC") and to collect damages which
result from any such violation. Finally, Section 207 gives an
individual harmed by violations of the Act the choice of pursuing
a complaint in the district court or before the Commission, but
precludes an aggrieved from pursuing both remedies.
47 U.S.C. § 207.
Defendants contend that section 222 of the Act affords the
substantive rights which plaintiffs seek to enforce. Section 222
Except as required by law or with the approval of the
customer, a telecommunications carrier that receives
or obtains customer proprietary network information
[CPNI] by virtue of its provision of a
telecommunications service shall only use, disclose,
or permit access to individually identifiable
customer proprietary network information in its
provision of (A) the telecommunications service from
which such information is derived, or (B) services
necessary to, or used in, the provision of such
telecommunications service, including the publishing
47 U.S.C. § 222(c)(1) (West Supp. 1999). Thus, the argument
continues, because plaintiffs' complaint concerns disclosure of
customer proprietary information, which is covered by Section
222, plaintiffs' remedies are contained within sections 205-209
of the Act.
Under the complete preemption doctrine, the civil enforcement
provisions of the purported preempting statute must vindicate the
same interest that the plaintiffs' state cause of action seeks to
vindicate. Railway, 858 F.2d at 942. "If the federal statute
provides no provision for adjudication of the right plaintiff
seeks to enforce, then no claim arises under federal law, and
removal [is] improper." Id.
Although plaintiffs have alleged a state law claim for invasion
of privacy, this allegation appears, on its face, to present a
direct challenge to Sprint's practice of disclosing customer
information. Indeed, plaintiffs' state claim parallels a claim
violation of the requirement imposed by Section 222, that a
common carrier shall not disclose "or permit access to
individually identifiable customer proprietary network
information." 47 U.S.C. § 222(c)(1). As a challenge to Sprint's
practices by which a third party can access customer proprietary
network information, Section 207 of the Act would provide
plaintiffs with a federal cause of action for damages. Therefore,
we find that the first prong of the Railway test is satisfied.
Cf. Bauchelle v. AT & T Corp., 989 F. Supp. 636, 645 (D.N.J.
1997) (The FCA does not impose any duty on common carriers to be
truthful in their promotional practices, therefore, the FCA does
not vindicate the action the plaintiffs sought to prevent);
Sanderson, Thompson, Ratledge & Zimny v. AWACS, Inc.,
958 F. Supp. 947, 956 (D.Del. 1997) (finding, inter alia, "the
statutory fraud and breach of contract claims do not challenge
the reasonableness of a billing practice. These claims therefore
do not fall within the scope of the civil enforcement provision
of the Act."); DeCastro v. AWACS, Inc., 935 F. Supp. 541,
(D.N.J. 1996) (finding, inter alia, that because the
Communications Act did not impose a duty on common carriers to
make accurate and authentic representations in their promotional
practices, Section 207 provided no remedy for a deviation from
2. Congressional Intent for Removal
Even if there is a civil enforcement provision and the
plaintiff's claim falls within it, a court must further inquire
whether there is a clear indication of a Congressional intention
to permit removal despite the plaintiff's exclusive reliance on
state law. See Metropolitan Life, 481 U.S. at 64-66, 107 S.Ct.
1542; Railway, 858 F.2d at 942. Both the Supreme Court and the
Court of Appeals have emphasized that the pertinent Congressional
intent is one to permit removal and not one to preempt state
law. See Metropolitan Life, 481 U.S. at 66, 107 S.Ct. 1542;
Railway, 858 F.2d at 941 ("complete preemption is a distinct
concept from ordinary preemption"). Indeed, the Court of Appeals
has expressly stated:
If there is no affirmative indication of the
requisite Congressional intent to permit removal,
there can be no "complete preemption." If there is no
such intent, the district court need not and should
not address the issue of whether the state
substantive law relied upon by the plaintiff has been
preempted by federal law.
Railway, 858 F.2d at 942. In addition, Justice Brennan's
concurrence in Metropolitan Life explicitly emphasized the
narrowness of the Court's opinion. He stated:
The Court rejects the position, urged by respondent,
that removal jurisdiction exists only when the
complaint states a claim that is "obviously"
pre-empted by state law — that is, when a federal
statute has obviously preempted state law, or when a
decision of this Court has construed an ambiguous
federal statute to pre-empt state law. The Court
instead focuses on the "intent of Congress" . . . to
make respondent's cause of action removable to
federal court. . . .
While I join the Court's opinion, I note that our
decision should not be interpreted as adopting a
broad rule that any defense premised on congressional
intent to preempt state law is sufficient to
establish removal jurisdiction. The Court holds only
that removal jurisdiction exists when, as here,
"Congress has clearly manifested an intent to make
causes of action . . . removable to federal court."
481 U.S. at 67-68, 107 S.Ct. 1542 (emphasis added) (citations
omitted). Thus, Metropolitan Life instructs that only the clear
intent of Congress to establish removal jurisdiction satisfies
the second prong of the Railway test, even if the federal
statute obviously preempts state law claims.
Here, the Act cannot satisfy the second prong of the Railway
Congressional intent to permit removal is wanting. First,
although defendants strenuously argue that Congress has expressed
an intent for removal of plaintiffs' claims, we have not found,
and defendants have not cited, anything in the legislative
history that suggests that Congress considered whether state law
cases could be removed under the Act.*fn7 Second, the
jurisdictional statutes do not support an inference that Congress
intended to permit removal. Indeed, section 414 of the Act, the
savings clause, provides that "[n]othing in this chapter
contained shall in any way abridge or alter the remedies now
existing at common law or by statute, but the provisions of this
chapter are in addition to such remedies." 47 U.S.C. § 414
(1991) (emphasis added). No such savings clause is found in the
preemptive provisions of the LMRA and ERISA.*fn8
Defendants cite several cases for the proposition that the Act
completely occupies the field to the exclusion of state law.
See, e.g., MCI Telecommunications Corp. v. Teleconcepts, Inc.,
71 F.3d 1086, 1093-96 (3d Cir. 1995), cert. denied,
519 U.S. 815, 117 S.Ct. 64, 136 L.Ed.2d 25 (1996); Nordlicht v. New York
Tel. Co., 799 F.2d 859, 862 (2d Cir. 1986); Ivy Broadcasting
Co. v. American Tel. & Tel. Co., 391 F.2d 486, 491 (2d Cir.
1968); Mellman v. Sprint Communications Co., 975 F. Supp. 1458,
1461 (N.D.Fla. 1996). However, other than MCI
Telecommunications, these cases are not binding authority on
Moreover, with respect to MCI Telecommunications, defendants'
reliance on this case is misplaced because MCI
Telecommunications was an action filed in federal court and did
not decide the issue of removability under the
complete-preemption doctrine. Rather, the Court of Appeals held
that federal district courts have subject matter jurisdiction
over actions for unpaid charges for telecommunications services
which are provided under a tariff that providers must file with
the FCC. Further, MCI Telecommunications simply stands for the
proposition that Congress intended federal law to preempt state
law, and not for the proposition that Congress intended to permit
removal despite the exclusive reliance on state law. Our inquiry,
however, focuses on whether Congress intended removal
jurisdiction not whether Congress intended to preempt state law
claims. Thus, while MCI Telecommunications stands for the
proposition that a federal district court has subject matter
jurisdiction over claims for unpaid telecommunications service
charges which are not specifically alleged under the
Communications Act, it does not mandate the removal
of state law claims under the complete preemption doctrine.
Further, Sprint's argument that Congress intended to permit
removal is substantially lower than that made in Metropolitan
Life. There, the Court found that the language of the
jurisdictional sections of ERISA "closely" paralleled the
provisions of Section 301 of the LMRA, which the Court had
previously held to be governed by the complete preemption
doctrine. Additionally, the court noted that the legislative
history of ERISA included a conference committee report which
stated that suits under it:
"May be brought not only in U.S. District Courts but
also in State Courts of competent jurisdiction. All
such actions in Federal and State courts are to be
regarded as arising under the laws of the United
States in similar fashion to those brought under
Section 301 of the Labor-Management Relations Act of
1947." H.R.Conf.Rep. No. 93-1280, p. 327 (1974)[.]
Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. 1542. Thus, it
was Congress' knowledge of the prior interpretation of Section
301 of the LMRA, coupled with a clear indication by Congress that
it desired ERISA's provisions to be interpreted in the same
manner, which led the Court to conclude in Metropolitan Life
that the complete preemption doctrine applied to ERISA.
Here, in contrast, our search has revealed nothing to indicate
that Congress intended the Act to be given similar effect.
Indeed, we have not found, and defendants have not identified,
anything in the legislative history of the Act that suggests that
Congress even considered whether state law cases should be
removed. Accordingly, we must conclude that the case was
Defendants are free to raise preemption as a defense in state
court, "and our holding that [the Act] . . . does not completely
preempt [plaintiffs'] . . . state law claims so as to permit
removal of this action does not prejudge the merits of such a
claim." Goepel, 36 F.3d at 316. "State courts are competent to
determine whether state law has been preempted by federal law and
[absent complete preemption,] they must be permitted to perform
that function in cases brought before them[.]" Railway, 858
F.2d at 942; Goepel, 36 F.3d at 316. Plaintiffs' motion to
remand must be granted.*fn9
An appropriate order will follow.
AND NOW, this 12th day of January, 2000, upon consideration of
defendants' motion (doc. no. 2) to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, and plaintiffs'
motion (doc. no. 5) to remand, pursuant to 28 U.S.C. § 1447(c),
for lack of jurisdiction,
IT IS ORDERED that defendants' motion (doc. no. 2) to dismiss
shall be and hereby is denied.
IT IS FURTHER ORDERED that plaintiffs' motion (doc. no. 5) to
remand shall be and hereby is granted.