Farina v. Nokia, Civil Action No. 06-724.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtPadova
Citation578 F.Supp.2d 740
PartiesFrancis J. FARINA v. NOKIA, et al.
Docket NumberCivil Action No. 06-724.
Decision Date02 September 2008
578 F.Supp.2d 740
Francis J. FARINA
NOKIA, et al.
Civil Action No. 06-724.
United States District Court, E.D. Pennsylvania.
September 2, 2008.

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Glenn E. Mintzer, H. Russell Smouse, Law Offices of Peter G. Angelos, PC, Baltimore, MD, Joseph A. O'Keefe, O'Keefe & Sher, Kutztown, PA, Kenneth A. Jacobsen, Jacobsen Law Offices LLC, Wallingford, PA, Michael D. Donovan, Donovan Searles, LLC, Philadelphia, PA, for Plaintiff.

Ashley R. Adams, Steve M. Zager, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, James Lewis Griffith, Jr., Michael Robert Fox, Akin Gump Strauss Hauer & Feld LLP, Howard M. Klein, Conrad O'Brien Gellman & Rohn PC, William J. O'Brien, Delany & O'Brien, Mark A. Aronchick, Robert L. Ebby, Hangley Aronchick Segal & Pudlin, Daniel J. Layden, Ronald P. Schiller, Dla Piper Rudnick Gray Cary US, LLP, Walter McDonough, Swartz, Campbell & Detweiler, Craig E. Ziegler, Montgomery, McCracken, Walker & Rhoads, Steven A. Haber, Obermayer Rebmann Maxwell & Hippel LLP, Theodore C. Flowers, Walter H. Swayze, III,

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Segal McCambridge Singer & Mahoney, Ltd., Thomas P. Wagner, Mary Charlotte Doherty, Marshall Dennehey Warner Coleman & Goggin, Francine Friedman Griesing, Greenberg Traurig, Daniel T. Fitch, Jana Michelle Landon, Stradley, Ronon, Stevens & Young, LLP, Rochelle M. Fedullo, Wilson Elser Moskowitz Edelman & Dicker LLP, Nancy Harris Marvel, Seamus C. Duffy, Susan M. Roach, Drinker, Biddle, & Reath LLP, Richard David Walk, Jr., Robert C. Heim, Ryan P. Chase, Dechert LLP, Howard D. Scher, Cathleen Coyle McNulty, Buchanan Ingersoll, PC, Susan K. Herschel, John Timmer, Hoyle Fickler Herschel & Mathes LLP, Lisa A. Mathewson, Welsh & Recker, P.C., Philadelphia, PA, Fred I. Williams, Lance T. Lackey, Akin Gump Strauss Hauer & Feld LLP, Austin, TX, Edward J. Murphy, Jr., Kelly & Murphy, Blue Bell, PA, James P. Ulwick, Kramon and Graham, Harold M. Walter, Jaime W. Luse, John B. Isbister, Tydings & Rosenberg LLP, Baltimore, MD, Charles L. Babcock, David T. Moran, Ryan C. Wirtz, Jackson Walker LLP, Dallas, TX, Jonathan E. Hinkemeyer, Michael Slade, Terrence J. Dee, Kirkland & Ellis LLP, Andrew J. Jarzyna, Edward M. Crane, Todd A. Frankel, Skadden Arps Slate Meagher & Flom LLP, Francis A. Citera, Greenberg Traurig P.C., Eugene A. Schoon, Tamar B. Kelber, Sidley Austin Brown & Wood, Chicago, IL, Deborah Goldstock Ringel, Kenneth B. Trotter, Mark H. Kolman, Dickstein Shapiro LLP, Lisa M. Norrett, Raymond B. Biagini, McKenna Long & Aldridge LLP, John H. Beisner, O'Melveny & Myers LLP, Linda B. Epstein, Hughes Hubbard & Reed LLP, John T. Toner, Seyfarth Shaw LLP, Washington, DC, Reena E. Parambath, Drexel University, Broomall, PA, Jane F. Thorpe, Scott A. Elder, Alston & Bird LLP, Atlanta, GA, Daniel H. Weiner, Hughes Hubbard & Reed LLP, New York, NY, David G.C. Arnold, Narberth, PA, for Defendants.


PADOVA, District Judge.

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.1 Additionally,

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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 pre-trial 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, 77 L.Ed.2d 420 [(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")]

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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, 77 L.Ed.2d 420.

Pinney, 402 F.3d at 445-46.2

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.)...

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