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Farina v. Nokia

September 2, 2008


The opinion of the court was delivered by: Padova, J.


This is a putative class action brought by Plaintiff Francis Farina and all others similarly situated against manufacturers, suppliers, vendors, and lessors of wireless handheld telephones ("cell phones"), those who provide wireless services for such devices, and two trade associations who represented that such devices were safe to use. Farina alleges: (1) Defendants participated in a civil conspiracy to market cell phones while suppressing knowledge of the adverse biological effects and health risks from radio frequency ("RF") emissions resulting from their use; (2) breach of implied warranties; (3) breach of express warranty; (4) violation of the Magnuson-Moss Warranty Improvement Act, 15 U.S.C. §§ 2301-2312; and (5) violation of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. Ann. §§ 201-2(xxi). Presently pending are motions by all Defendants arguing that the state law claims contained in Farina's Third Amended Complaint ("TAC") are preempted by federal law and they fail to state claims upon which relief may be granted under state law.*fn1 Additionally, Defendant Cellular One moves to dismiss the TAC for lack of in personam jurisdiction. For the following reasons, we grant the Motion to Dismiss of Cellular One. We also grant the Defendants' Motions based on federal preemption and, accordingly, do not reach their other Motions.


Farina commenced this action on April 19, 2001 in state court and seven years of complex proceedings have followed. The case was first removed to federal court on May 18, 2001, based on federal question jurisdiction, see 28 U.S.C. § 1331. A companion case, Naquin v. Nokia, was also removed to federal court by one of its defendants on the basis of complete diversity. See 28 U.S.C. § 1332. On October 31, 2001, by Order of the Judicial Panel on Multi-District Litigation, this case, Naquin, and three other class actions were transferred to Judge Catherine Blake of the United States District Court for the District of Maryland for consolidated pretrial proceedings. See In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356 (J.P.M.L. 2001). The Farina and Naquin plaintiffs then filed motions to remand, which Judge Blake denied. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 216 F. Supp. 2d 474, 491-93 (D. Md. 2002). Subsequently, Judge Blake granted motions to dismiss all of the consolidated cases based on federal preemption grounds. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 248 F. Supp. 2d 452 (D. Md. 2003).

Judge Blake's ruling dismissing the cases was reversed by the United States Court of Appeal for the Fourth Circuit. See Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005). Significantly, while the Fourth Circuit reversed the Naquin case because it disagreed with Judge Blake's preemption determination, her decision dismissing the other consolidated cases, including Farina, was vacated on jurisdictional grounds. Specifically, the Fourth Circuit held that Judge Blake lacked jurisdiction over Farina and the other consolidated cases that were brought on the basis of federal question jurisdiction, finding that all of the claims raised in the complaints stated only state law grounds and failed to satisfy the "substantial federal question" doctrine:

The district court erred by not recognizing that its inquiry was limited by the well-pleaded complaint rule. It should have considered only whether a disputed question of federal law is an essential element of one of the well-pleaded state claims. See Franchise Tax Bd. [of Cal. v. Constr. Laborer's Vacation Trust], 463 U.S. [1,] 13, 103 S.Ct. 2841 [(1983)]. The district court went beyond this restricted inquiry and in effect anticipated (1) that Nokia would raise the affirmative defense that the state law claims are preempted by the [Federal Communications Act of 1934, 47 U.S.C. § 15 et seq. ("FCA")] and federal RF radiation standards and (2) that the Pinney plaintiffs would be called upon to rebut that defense. The cases could be decided, the court concluded, only by resolving whether the claims are preempted by the FCA and the federal RF radiation standards. Even if that is so, a preemption defense "that raises a federal question is inadequate to confer federal jurisdiction." Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Again, "a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption," even if the complaint begs the assertion of the defense, and even if "the defense is the only question truly at issue in the case." Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. 2841.

Pinney, 402 F.3d at 445-46.*fn2

Following remand, Farina filed a Second Amended Complaint, and then the TAC, ostensibly to correct the name of a defendant. On February 17, 2006, the newly added defendant, LG Mobilecomm, again removed the case to federal court by filing a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453. The Judicial Panel on Multi-District Litigation again transferred this case to the District of Maryland. On April, 25, 2007, Judge Blake held a hearing on, among other things, Farina's "Motion to Remand." Following the hearing, Judge Blake remanded the case to the Eastern District of Pennsylvania, without a decision on Plaintiff's Motion to Remand to state court. On February 4, 2008, we conducted a hearing on the remand Motion and on February 13, 2008, ruled: (1) that the Motion was untimely, and (2) that federal jurisdiction was proper under the Class Action Fairness Act, Pub. L. 109-2, 119 Stat. 4 (2005), codified, inter alia, at 28 U.S.C. §§ 1332(d) and 1453.


Farina alleges that there are over 190 million cell phone users in the United States. (TAC ¶ 30.) The Federal Communication Commission ("FCC") grants licenses to service providers to broadcast wireless signals on specific frequency bands. (TAC ¶ 31.) This license determines the specifications for cell phones sold by each provider. (TAC ¶ 33.) Farina contends that during every incoming and outgoing call, a cell phone user is exposed to RF emissions as a result of holding the cell phone in the customary manner, with the phone's antenna next to the user's head. (TAC ¶¶ 34, 38.) He alleges that cell phones he purchased and used were sold without a headset and also lacked any instruction as to the benefits of using a headset. (TAC ¶ 36.)

Farina contends that the proper utilization of a headset eliminates RF exposure to the cell phone user's head. (TAC ¶ 41.) These headsets have been on the market during the period in question, but the Defendants marketed them only as an accessory of convenience. (TAC ¶ 41.) He avers that Defendants knew or should have known of the biological risks associated with cell phone use and the associated RF exposure. (TAC ¶ 42.) Additionally, Defendants knew or should have known of the decrease in biological risk associated with a greater distance between the cell phone and the user and that properly designed headsets would increase this distance. (TAC ¶¶ 43, 44.) However, despite this knowledge, Defendants designed and marketed inadequate headsets. (TAC ¶ 44.)

Farina avers that scientific and medical research has demonstrated the harmful biological effects from exposure to RF emissions within the radio frequencies used by cell phones. (TAC ¶ 45.) He claims Defendants knew or should have known of these studies, which date to the 1920s, as well as research in the 1960s showing that RF emissions are absorbed by human tissue and can harm the body. (TAC ¶¶ 46, 48, 49.) Additionally, studies have shown that an antenna is an especially efficient device used to deposit RF emissions into the human body, particularly the ultra-sensitive temporal lobe of the brain. (TAC ¶ 50.)

Despite this knowledge, Farina contends that Defendants acted to minimize the public's knowledge of these studies and attempted to downplay the results in an effort to be free to mass produce cell phones without regulatory constraints. (TAC ¶¶ 52, 53.) Their primary method was assuming control of the American National Standards Institute ("ANSI") Committee in charge of regulating devices emitting RF radiation. (TAC ¶ 53.) Also, Defendants publically agreed to fund research into potential health concerns associated with cell phones, only to revoke funding, and minimize exposure of the studies, after they found potential dangers. (TAC ¶ 54.) Through this period, Farina asserts, despite contrary knowledge, Defendants -- themselves and through their trade associations -- continued to publicly declare that cell phone use posed no health dangers. (TAC ¶¶ 55-66.)

Farina alleges that Defendants have misrepresented the data and obscured information on the risks of cell phone use from the public by hiding and complicating specific absorption rate ("SAR") information and claiming that cell phones are "safe" when they really mean that cell phones have not been proven unsafe. (TAC ¶¶ 87, 88, 89.) He avers that many peer reviewed studies disclose widespread complaints such as headaches, sleep problems, and burning sensations in as little as fifteen minutes of cell phone use. (TAC ¶¶ 90, 91, 92.) Other studies have indicated potential changes in the blood-brain barrier, several types of damage to the brain, tumors, and cancer as results of exposure to microwave radiation. (TAC ¶¶ 94, 95.) Additional studies have shown the potential for acoustic neurinoma and brain cancer after extended use of analog cell phones and an increased risk for melanoma in the eye and neuroepitheliomatous for all cell phone use. (TAC ¶¶ 96, 97.) Farina alleges the biological harm is even greater for children. (TAC ¶¶ 100-113.) He contends that the use of a cell phone without a headset while driving increases the risk of automobile accidents. (TAC ¶ 114.) As a result, the neighboring states of New Jersey and New York as well as the District of Columbia have banned the use of cell phones while operating a motor vehicle. (Id.)

Farina seeks to represent a class consisting of (a) all persons in the Commonwealth of Pennsylvania who purchased or leased cell phones and have not been diagnosed with any illness or injury resulting from the use of cell phones; and (b) all future purchases and lessees of cell phones who have not been diagnosed with any illness or injury resulting from the use of cell phones. (TAC ¶ 115.) Plaintiff asserts he is a member of the class along with potentially millions of others in the Commonwealth. (TAC ¶¶ 116-17.)*fn3

Based on these factual averments, Farina asserts a claim of civil conspiracy, asserting that Defendants acted together to suppress the knowledge or risks associated with RF emissions from cell phone use and to sell and market defective cell phones which can adversely affect users, with intent to deceive the public by failing to warn of potential hazards. (TAC ¶¶ 125-35.) In Count II, he asserts a claim for breach of implied warranties based upon the facts that his cell phones did not come with headsets, their user manuals said they would be safe to use without a headset, and their warranties contained promises that the products were "free of defects." (TAC ¶¶ 136-55.) In Count III, he asserts a claim for breach of express warranty based on the allegation that the cell phones sold by Defendants fail the express promise of safe operation because it is not certain that the RF emissions from the cell phones are safe without a headset. (TAC ¶¶ 157-58.) Count IV seeks to state a claim for violation of the Magnuson-Moss Warranty Improvement Act on the same grounds as Counts II and III. (TAC ¶¶ 159-65.) Lastly, in Count VI, Farina seeks to state a claim under the Pennsylvania Declaratory Judgment Act, 42 Pa. Cons. Stat. Ann. § 7531, that the Class is entitled to a declaration that Defendants' conduct constitutes violations of Pennsylvania statutory and common law, and declaratory relief requiring Defendants to supply headsets for cell phones purchased by plaintiff and the Class. (TAC ¶¶ 171-73.)*fn4


In addition to the joint motions, Defendant Cellular One Group ("COG") has moved to dismiss the TAC for lack of personal jurisdiction. COG argues that it is not subject to either specific or general jurisdiction. For the following reasons, this motion is granted.

"[I]n reviewing a motion to dismiss under Rule 12(b)(2), we 'must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff.' " Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (quoting Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992)). Nonetheless, a motion made pursuant to Rule 12(b)(2) "is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Accordingly, "[o]nce the [lack of personal jurisdiction] defense has been raised, then the plaintiff must sustain [his] burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence," and may not "rely on the bare pleadings alone . . . ." Id.; see also O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) ("Once challenged, the plaintiff bears the burden of establishing personal jurisdiction." (citing General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001))). "Any disputes created by the affidavits, documents, or other records submitted for the court's consideration are resolved in favor of the non-moving party." Chin v. Multivac, Inc., Civ. A. No. 07-3436, 2007 WL 4106272, at *1 (E.D. Pa. Nov. 15, 2007) (citing Irons v. Transcor Am., Civ. A. No. 01-4328, 2002 WL 32348317 (E.D. Pa. July 8, 2002)). The plaintiff must establish the defendant's contacts with the forum state with reasonable particularity. Snyder v. Dolphin Encounters Ltd., 235 F. Supp. 2d 433, 436 (E.D. Pa. 2002) (citation omitted).

Pursuant to Federal Rule of Civil Procedure 4(e), a federal court may exercise personal jurisdiction over a nonresident of the state in which the court sits "to the extent permissible under the law of the state where the district court sits." Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998) (citation omitted). Pennsylvania's long arm statute authorizes the exercise of jurisdiction over a nonresident "to the fullest extent allowed under the Constitution of the United States." 42 Pa. Cons. Stat. Ann. § 5322(b); see also O'Connor, 496 F.3d at 316 (noting that the Pennsylvania long arm statute "provides for jurisdiction 'based on the most minimum contact with th[e] Commonwealth allowed under the Constitution of the United States'" (quoting 42 Pa. Cons. Stat. Ann. § 5322(b) and citing Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992))).

In evaluating whether an exercise of personal jurisdiction is constitutional, a court first determines whether the defendant's contacts with the forum state are sufficient to support general personal jurisdiction. Pennzoil, 149 F.3d at 200. General jurisdiction exists where a nonresident's contacts with the forum are "continuous and substantial," and permits the court to exercise jurisdiction "regardless of whether the subject matter of the cause of action has any connection to the forum." Id. (internal quotations omitted). In the absence of general jurisdiction, a court looks to whether the requirements of specific personal jurisdiction are met. Id. at 200-01. "Specific jurisdiction exists where the plaintiff's claim 'is related to or arises out of the defendant's contacts with the forum.'" Id. at 201 (quoting Farino, 960 F.2d at 1221). "To establish specific jurisdiction a plaintiff must show that the defendant has minimum contacts with the state 'such that [the defendant] should reasonably anticipate being haled into court there.'" North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir. 1990) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). "Specific jurisdiction is established when a nonresident defendant has 'purposefully directed' his activities at a resident of the forum and the injury arises from, or is related to, those activities. General Elec. Co., 270 F.3d at 150.

General jurisdiction over a non-resident defendant is established where the defendant's contacts with the forum state are "'continuous and systematic.'" Pinker, 292 F.3d at 368 n.1 (3d Cir. 2002) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). Plaintiff has a high "'threshold to meet for the facts required to assert . . . general jurisdiction [which] must be extensive and persuasive.'" Kuehnemund v. Agrium, Inc., Civ. A. No. 07-83, 2007 WL 3334974 (W.D. Pa. Nov. 8, 2007) (quoting Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982)). See also Zombeck v. Amada Co. Ltd., Civ. A. No. 06-953, 2007 WL 4105231 (W.D. Pa. Nov. 15, 2007) (same) (citing Allied Leather Corp. v. Altama Delta Corp., 785 F. Supp. 494, 497 (M.D. Pa. 1992)). Even "continuous activity of some sorts [by a corporation] within a state is not enough to support [general jurisdiction over the corporation]." Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993) (quoting Int'l Shoe, 326 U.S. at 318). "Only when the 'continuous corporate operation within a state [is] thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities' may a court assert general jurisdiction over a corporate defendant." Id. (quoting Int'l Shoe, 326 U.S. at 318).

Federal courts sitting in Pennsylvania consider the following objective criteria in ascertaining the existence of general jurisdiction over a corporate defendant: (1) whether the defendant is "incorporated or licensed to do business in Pennsylvania;" (2) whether the defendant has "ever filed any tax returns with the Commonwealth of Pennsylvania;" (3) whether the defendant files "administrative reports with any agency or department of the Commonwealth;" (4) whether "the defendant regularly purchase[s] products or supplies within Pennsylvania for use in its business outside of the state;" (5) whether "the defendant own[s] land or property within the state;" (6) whether "the defendant advertise[s] in Pennsylvania;" and (7) whether "the defendant maintain[s] an agent in Pennsylvania." Gaylord v. Sheraton Ocean City Resort & Conference Ctr., Civ. A. No. 93-0463, 1993 WL 120299 (E.D. Pa. Apr. 15, 1993) (citing Wims v. Beach Terrace Motor Inn, Inc., 759 F. Supp. 264, 269 (E.D. Pa. 1991)).

COG maintains that it does not have sufficient contacts with the Commonwealth of Pennsylvania to enable this Court to exercise general personal jurisdiction over it, and that Farina's claim does not arise out of its purposeful availment of the jurisdiction. COG has submitted the Affidavit of Camille Cadman ("Cadman Aff.") attesting that:

1. COG was a general partnership organized under Delaware law and then later Oklahoma law,*fn5 with its principal place of business located at different times in Texas, Oklahoma and Washington, Cadman Aff. ¶ 1;

2. it has never been authorized or registered to conduct business in Pennsylvania, id. ¶ 2;

3. it does not maintain a place of business; own real property; have operations, employees, agents or representatives; have bank accounts; advertise; maintain a mailing address or telephone listing; conduct business; generate sales or revenues; pay or been assessed taxes; or have an agent for receipt of service of process in Pennsylvania, id. ¶ 3;

4. it does not operate a cell phone business or other telecommunications system in Pennsylvania; does not manufacture, distribute, promote, sell or supply cell phones in Pennsylvania; has never provided a warranty for a cell phone, serviced or repaired a cell phone in Pennsylvania; has never been granted a license by the FCC to broadcast wireless signals in Pennsylvania; and has never owned or operated a cell tower or landline in Pennsylvania; id. ¶¶ 4-9.

5. COG is exclusively a trademark licensor of the Cellular One trademark and related marks; its business was to license and promote trademarks and service marks in Texas, Oklahoma and Washington; id. ¶ 10.

COG argues that none of these activities give rise to either specific or general jurisdiction in Pennsylvania.

Farina responds by asserting that COG has an internet site,, which lists twenty-nine retail locations for "CellularOne" in Pennsylvania, all of which are operated under the name "CellularOne," and which advertise and offer for sale "CellularOne" products. Farina argues that the website cannot be reconciled with COG's representations that it has no connection with the Commonwealth. (Pl. Mem. at 3.)

We find that Farina has failed to sustain his burden of proof in establishing jurisdictional facts with reasonable particularity. He has offered no sworn affidavits; his only "competent" evidence consists of page views from the above-mentioned website. However, he has not established that the website belongs to COG, rather than some other entity. He has not established that the listed retail locations are owned, operated and maintained by COG, rather than some other entity. This is particularly important since COG avers it is in the business of licensing the "CellularOne" trademark to other entities, an allegation Farina does not dispute. A licensor of a mark cannot be subject to personal jurisdiction in a state solely because its licensee is located in that state. See Red Wing Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1998) (holding that a licensee's contacts with a forum state are not, standing alone, enough to bring a licensor within the personal jurisdiction of the same state). Merely doing business with someone who does business in Pennsylvania does not mean that COG itself does business in Pennsylvania.

As COG's evidence has established that it does not have contacts with the forum that are "continuous and substantial," there is no general jurisdiction. Pennzoil, 149 F. 3d at 200. Likewise, as it has established that Farina's injuries do not arise out of its minimum contacts with Pennsylvania, there is no specific jurisdiction. Indeed, Farina's only evidence in support of its jurisdictional argument is the page views from a website he has not established belongs to COG. We conclude, therefore, that Farina has failed to meet his jurisdictional burden to show either specific or general jurisdiction. Accordingly, COG's motion to dismiss for want of personal jurisdiction is granted.


Defendants move to dismiss the TAC because, they assert, Farina's state law claims conflict with federal law and are therefore preempted.*fn6 They assert arguments relating to conflict preemption, field preemption and express preemption. These same issues were raised to and rejected by the Fourth Circuit when it decided the appeal of Judge Blake's decision dismissing this case, as well as Naquin and the other three class actions. Accordingly, the threshold question is whether the Pinney decision qualifies as the law of the case. We conclude that it does not. After an independent review of the applicable case law, we reach the same decision as the Fourth Circuit on the issue of express preemption, namely, that the state law claims are not preempted under that theory. However, we conclude that the rationale used in Pinney to decide the issue of implied preemption does not comport with binding case law from the United States Court of Appeals for the Third Circuit; that applying Third Circuit case law leads to the conclusion that Farina's claims are subject to conflict preemption and must be dismissed.

A. Law of the Case Doctrine

The United States Court of Appeals for the Third Circuit has stated that the law of the case doctrine is a discretionary principle that "is designed to protect traditional ideals such as finality, judicial economy and jurisprudential integrity." In re City of Philadelphia Litig., 158 F.3d 711, 717-18 (3d Cir. 1998). "[L]aw of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983). "Law of the case rules have developed 'to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.'" Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 856 (3d Cir. 1994) (quoting Charles A. Wright et al., 18 Federal Rules and Practice § 4478 (1981)). See also Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir. 1990) (holding that "law of the case" is a doctrine of discretion which provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case; however, where the case sub judice is merely related to, but not the "same case," the law of the case doctrine does not apply). Other law of the case rules apply to subsequent rulings by the same judge in the same case or a closely related one, to rulings by different judges at the same level, or to the consequences of the failure to preserve an issue for appeal. Casey, 14 F.3d at 856 n.11 (citing Charles A. Wright et al., 18 Federal Rules and Practice § 4478 (1981)). "They do not apply between separate actions," and the doctrine "does not reach a matter that was not decided." Charles A. Wright et al., 18 Federal Rules and Practice § 4478.

Defendants argue that the law of the case doctrine does not apply to the question of federal preemption because the Fourth Circuit decided the Farina appeal on different grounds from that used to decide the Naquin appeal. They argue that, since Judge Blake's Farina decision was vacated because she lacked jurisdiction, the merits of the federal preemption issue were never reached viz Farina. Finally, they contend that the Fourth Circuit's discussion of the issue in Naquin was not a decision in the same case; thus, we are free to apply our own understanding of federal preemption law to the merits of Farina. We agree.

In Pinney, the Fourth Circuit clearly articulated that it was not addressing the merits of preemption in the cases where it found that Judge Blake lacked subject matter jurisdiction, including Farina. After first concluding that none of the Plaintiffs' claims could arise under federal law -- because it found the jurisdictional doctrine of complete preemption did not apply and because the "well-pleaded complaint rule did not permit consideration of the affirmative defense doctrine of complete preemption -- the Court went on to state:

After the district court denied the Pinney plaintiffs' motion to remand their four cases to state court, it dismissed all five cases, including the one brought by the Naquin plaintiffs, on the ground that the claims are preempted by the [FCA]. Because the district court lacked subject matter jurisdiction over the four cases brought by the Pinney plaintiffs, the district court had no power to dismiss them. However, as we noted earlier, the district court has diversity jurisdiction over the case brought by the Naquin plaintiffs. See 28 U.S.C. § 1332(a). We must therefore review the district court's order granting Nokia's motion to dismiss the claims of the Naquin plaintiffs. Pinney, 402 F.3d at 451. Later, in its concluding paragraph, the Court again specifically stated that its merits ruling was expressly limited to the Naquin class:

For the foregoing reasons, we reverse the district court's order denying the consolidated motion to remand made by the plaintiffs in the Pinney, Farina, Gilliam, and Gimpelson cases. Because federal subject matter jurisdiction does not exist over these four cases, we return them to the district court for remand to the state courts in which they originated. We also reverse the district court's order dismissing the Naquin plaintiffs' case as preempted by the FCA. That case is remanded to the district court for further proceedings.

Id., 402 F.3d at 459. Because the Farina decision was vacated for want of subject matter jurisdiction, the Fourth Circuit never reached the merits of the preemption decision in this case. Hence, Pinney cannot be considered the law of the case ...

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