Opinion
Civil Action No. 3:01-CV-1267-D.
September 13, 2001.
ORDER
Plaintiff Paul Song ("Song"), suing on behalf of himself and others similarly situated, filed this action in county court, contending that defendants are liable on state-law claims of breach of contract and breach of warranty, negligence, negligent misrepresentation, and common law fraud stemming from alleged defects in the Sprint PCS wireless telephone network that arise when a customer uses a mobile phone handset manufactured and sold by Nokia, Inc. ("Nokia"). Defendants Sprint Corporation ("Sprint") and Sprint Spectrum L.P. ("Sprint Spectrum"), with Nokia's consent removed the case to this court. Defendants maintain the case is removable because Song's claims are completely preempted by the Federal Communications Act of 1934 ("FCA"), 47 U.S.C. § 151-614 . Song moves to remand.
Defendant Sprint PCS had not yet been served, and its joinder was not required. Defendants do not contend in their notice of removal or brief in opposition to Song's remand motion that the case is removable based on diversity of citizenship.
Defendants Sprint and Sprint Spectrum also move to dismiss on various grounds. The court need not decide this motion and leaves to the county court for decision on remand the issues presented by the motion.
The merits of the motion to remand turn on whether the FCA provides complete preemption or only ordinary or conflict preemption. If the former, one or more of Song's state-law claims are not only preempted by federal law, the causes of action become federal question claims and the case is removable. If the latter, federal law provides a defense that may preclude Song from recovering under state law, but the case is not removable.
Two judges of this court have held in other cases that the FCA did not completely preempt state-law claims and granted motions to remand. See Shaw v. ATT Wireless Servs., Inc., 2001 WL 539650, at *4, *7 (N.D. Tex. May 18, 2001) (Lindsay, J.); Bryceland v. AT T Corp., 122 F. Supp.2d 703, 710, 713 (N.D. Tex. 2000) (Kaplan, J.). Defendants attempt to distinguish Shaw and Bryceland, and they also contend the court should follow other decisions, including one by the Seventh Circuit in Bastien v. AT T Wireless Services, Inc., 205 F.3d 983 (7th Cir. 2000). Despite differences among Shaw, Bryceland and the present case, Shaw and Bryceland both hold that Congress did not clearly intend via the FCA to preempt state-law claims completely and thereby create removal jurisdiction. See Shaw, 2001 WL 539650, at *4; Bryceland, 122 F. Supp.2d at 710. Bryceland the reasoning of which Shaw follows as an additional ground for its decision, see Shaw, 2001 WL 539650, at *4, emphasizes the limited universe of claims that are completely preempted. See Bryceland, 122 F. Supp.2d at 707 n. 4. Bryceland also distinguishes Bastien on the basis that it does not discuss the tripartite test for determining complete preemption that is followed in this circuit. See Bryceland, 122 F. Supp.2d at 710 n. 6.
One argument that defendants advance to distinguish Shaw and Bryceland is the contention that they arose from complaints about deceptive trade practices or allegedly false advertising rather than about quality of service. See Ds. Br. at 9. Bryceland, however, treated the plaintiffs' complaints as allegations that "clearly implicate the quality of ATT's services." Bryceland, 122 F. Supp.2d at 709. On this basis, it concluded that the plaintiffs were challenging ATT's rates. See id.
Although defendants cite Marcus v. ATT Corp., 138 F.3d 46, 55 (2d Cir. 1998), for other reasons, see Ds. Br. at 10-11 11 nn. 4 5, and note that in Marcus the Second Circuit held the case was removable because the plaintiffs had brought a breach of warranty claim that arose under federal common law, see id. at 11 n. 5, they neither contend that Song's breach of warranty claim necessarily arises from a tariff that a defendant in this case filed with the Federal Communications Communication under the FCA nor urge that Marcus supports removal on this basis. Instead, they focus their brief on the argument that Song complains about quality of service, that a challenge to quality of service is a complaint about rates, and that complaints about rates are completely preempted, thereby creating a right of removal. Marcus, however, clearly rejects this proposition, see Marcus, 138 F.3d at 53-55, as does the decision on which Marcus in part rests its conclusion, Nordlicht v. New York Telephone Co., 799 F.2d 859, 861-62 (2d Cir. 1986).
Absent persuasive reasons to conclude that other judges of this court have erred, or that their decisions are distinguishable, the court will not lightly reach a contrary result. To do otherwise would create the unseemly appearance that the determination whether a case will be litigated in federal court or remanded to state court is governed by the judge to whom the case is assigned. Uniformity and predictability are important in the context of unreviewable forum decisions. Accordingly, the court holds that Song's state-law claims are not completely preempted and grants his motion to remand.
Of course, to conclude that Song's claims are not completely preempted is not to hold that they are not preempted. The county court may well determine following remand that the FCA preempts Song's state-law causes of action. Whether the FCA provides a basis for removal and whether it confers a defense to state-law liability are distinct questions. See, e.g., Bryceland, 122 F. Supp.2d at 707 ("However, the mere fact that plaintiffs' claims may be preempted by federal law does not create federal removal jurisdiction.").
Song's July 30, 2001 motion to remand is granted. The court holds that it lacks subject matter jurisdiction and, pursuant to 28 U.S.C. § 1447(c), remands this case to County Court at Law No. 5 of Dallas County, Texas. Song shall recover from defendants his just costs, and any actual expenses, including reasonable attorney's fees, pursuant to § 1447(c). He may apply to the court for such an award within 30 days of the date this order is filed if the parties cannot agree concerning the amount to which he is entitled. The clerk shall effect the remand in accordance with the usual procedure.
The Fifth Circuit has held that these are limited to the "fees and costs incurred in federal court that would not have been incurred had the case remained in state court." Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997).
SO ORDERED.