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 ...