Hill v. Bellsouth Telecommunications, Inc.

• Decision Date: 02 April 2004
• Docket Number: No. 03-11056.,03-11056.
• Parties: Priscilla HILL, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

364 F.3d 1308

Priscilla HILL, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant-Appellant.

No. 03-11056.

United States Court of Appeals, Eleventh Circuit.

April 2, 2004.

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Richard S. Gottlieb, John B. Morris, Winston Salem, NC, Ashley B. Watson, BellSouth Corp., Atlanta, GA, for Defendant-Appellant.

Michael G. Wimer, Arden, NC, Clinton W. Sitton, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and BIRCH and FARRIS^*, Circuit Judges.

BIRCH, Circuit Judge:

This appeal involves the interplay between the Federal Communications Act, 47 U.S.C. § 201 et seq. (2000), which requires telecommunications service providers to file tariffs with the Federal Communications Commission, and the federal "filed rate doctrine," which prohibits customers from directly challenging those filed tariffs in state or federal court. Plaintiff-appellee, Priscilla Hill ("Hill"), brought six state-law claims challenging defendant-appellant's, BellSouth Telecommunications, Inc. ("BellSouth"), alleged practice of misleading customers about the filed tariffs it charged to customers. The district court dismissed four of Hill's claims as barred by the filed rate doctrine on the ground that those claims directly challenged BellSouth's filed tariff. The specific question presented in this appeal is whether Hill's two remaining state-law claims also should have been dismissed under the filed rate doctrine — on the theory that they, too, directly attacked BellSouth's filed tariff. After review, we conclude that these two claims should have been similarly dismissed. Accordingly, we REVERSE the judgment of the district court.

I. BACKGROUND

BellSouth, as a telecommunications services provider, is subject to federal regulation under the Federal Communications Act ("FCA"), 47 U.S.C. § 201 et seq. The FCA requires carriers such as BellSouth to file with the Federal Communications Commission ("FCC"), and make publicly available, certain schedules, or "tariffs," explaining all of the charges, practices, and regulations affecting them. 47 U.S.C. § 203(a). The FCA also requires BellSouth and other telecommunications services providers to contribute a percentage of their revenues to a "Universal Service Fund" ("USF"), 47 U.S.C. § 254(d), which is designed to provide affordable telecommunications services to rural and low-income areas, id. § 254(b)(3). BellSouth's required contribution to the USF is listed in the tariffs BellSouth filed with the FCC. In re Fed.-State Joint Bd. on Universal Serv., FCC 97-157, 1997 WL 236383, at *9056, 9145 (May 8, 1997).

Under FCC regulations in place at the time Hill filed her First Amended Complaint, BellSouth was permitted to recoup its required USF contribution from its customers, either through the rates it charged or as a separate itemized charge.¹ In re Fed.-State Joint Bd. on Universal Serv., FCC 02-329, 2002 WL 31778732, at *24959 (Dec. 13, 2002). BellSouth chose to impose a separate itemized charge of $0.53 indicated on each customer's monthly bill as the "Federal Universal Service Charge" ("FUSC"). R1-2, Ex. A at 2. Like BellSouth's required contribution to the USF, the dollar amount of the FUSC levied on BellSouth customers was included and explained in the tariffs that BellSouth filed with the FCC. Id. at 2, unnumbered 9.

Hill filed a complaint in the State Court of Fulton County, Georgia, raising various state-law claims regarding BellSouth's recoupment, through the FUSC, of an amount in excess of its required contribution to the USF. She alleged six claims based on (1) the Georgia Unfair Trade Practices Act, O.C.G.A. § 10-1-390, et seq.; (2) fraud and negligent misrepresentation; (3) conversion; (4) unjust enrichment; (5) breach of duty of good faith and fair dealing; and (6) breach of contract accompanied by a fraudulent act. As for damages, the district court construed Hill's complaint as requesting purely monetary relief — namely, "recovery of BellSouth's undisclosed charges in excess of its contributions to the fund." Hill v. BellSouth Telecomms., Inc., 244 F.Supp.2d 1323, 1325 (N.D.Ga.2003).

BellSouth removed the action to the District Court for the Northern District of Georgia pursuant to 28 U.S.C. §§ 1441 and 1446, on the ground that Hill's state-law causes of action raised federal questions because they either (1) were completely preempted by the FCA or (2) raised substantial questions of federal law. Based on its assertion that federal jurisdiction existed, BellSouth also filed a motion to dismiss Hill's claims as barred under the federal filed rate doctrine. Hill, on the other hand, filed a motion to remand the case to its state court of origin on the ground that none of her claims gave rise to federal subject matter jurisdiction.

The district court agreed with BellSouth that Hill's claims based on conversion, unjust enrichment, breach of duty of good faith and fair dealing, and breach of contract accompanied by a fraudulent act gave rise to federal question jurisdiction because they were completely preempted by the FCA. After finding federal jurisdiction for these claims (and, thereby, impliedly denying Hill's motion to remand these four claims), the district court granted BellSouth's motion to dismiss them pursuant to the filed rate doctrine. Hill, 244 F.Supp.2d at 1330. Hill did not appeal the dismissal of these four claims.

The district court disagreed, however, that Hill's two remaining claims — violation of the Georgia Unfair Trade Practices Act and fraud and negligent misrepresentation² — also gave rise to federal question jurisdiction because it concluded that these two claims were not completely preempted by the FCA. Id. The district court then declined to exercise supplemental jurisdiction over these claims and, therefore, granted Hill's motion to remand them to their state court of origin (thereby impliedly denying BellSouth's motion to dismiss these claims). Id. at 1330-31. BellSouth now appeals the district court's implied denial of its motion to dismiss these two claims.

II. ANALYSIS

Before we may proceed to the merits, we must first address whether we have appropriate jurisdiction to hear the appeal. We conclude (a) that we have appropriate appellate jurisdiction and (b) that BellSouth's motion to dismiss Hill's remaining two state-law claims should have been granted.

A. Appellate Jurisdiction

Hill argues that our jurisdiction to consider BellSouth's appeal was limited for two reasons. First, she contends that "[s]ince BellSouth's Notice of Appeal did not expressly address the order of remand, only that portion of the order denying their motion to dismiss the remanded claims is before this court." Appellee's Br. at 8. Second, she argues that, under Federal Rule of Civil Procedure 54(b), the district court's order was not a final decision under 28 U.S.C. § 1291 because it did not dispose of all the claims in Hill's multi-count action. We address each of Hill's misplaced concerns in turn.

1. BellSouth's Notice of Appeal

BellSouth's Notice of Appeal states its intention to appeal "from the portion of the [District] Court's order ... denying Defendant's Motion to Dismiss Plaintiff's claims for violation of the Georgia Unfair Trade Practices Act and for fraud and negligent misrepresentation in their entirety." R1-14 at 1. While it is true that "[t]he general rule in this circuit is that an appellate court has jurisdiction to review only those judgments, orders or portions thereof which are specified in an appellant's notice of appeal," Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir.1987), this circuit also embraces "a policy of liberal construction of notices of appeal" when (1) unnoticed claims or issues are inextricably intertwined with noticed ones and (2) the adverse party is not prejudiced, C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.1981).³

In this case, the district court's implied denial of BellSouth's motion to dismiss Hill's two remaining claims and its grant of Hill's motion to remand those claims are inextricably intertwined: the district court impliedly denied BellSouth's motion to dismiss Hill's state-law claims because it expressly granted Hill's motion to remand those claims. Since these issues are so interrelated, Hill is not prejudiced by our consideration of the district court's grant of her motion to remand because the propriety of the district court's decision to remand and its implied decision to deny BellSouth's motion to dismiss require consideration of the same legal issue: whether federal question jurisdiction should have attached to Hill's two remaining claims.

2. The finality of the district court's order

Under Rule 54(b) of the Federal Rules of Civil Procedure, "in actions involving multiple claims for relief ... an order that finally disposes of one or more but fewer than all of the claims for relief asserted ... does not terminate the action in the district court" and is not appealable as a final order pursuant to 28 U.S.C. § 1291. Huckeby v. Frozen Food Express, 555 F.2d 542, 545 (5th Cir.1977). Although the district court allowed two of Hill's claims to proceed in state court, these two claims were "terminate[d]" for purposes of further action by the district court, thereby making the district court's order one that is final and appealable in this court. Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1350-51 (11th Cir.1998) (concluding that the decision of a district court to remand state-law claims based on a denial of supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) is appealable).

B. The Merits of BellSouth's Appeal

Because we have jurisdiction to hear BellSouth's appeal, we now turn to a discussion of the merits of its appeal. In this...