Moriconi v. At & T Wireless Pcs, LLC

• Decision Date: 19 August 2003
• Docket Number: No. 4:03-CV-00344 GTE.,4:03-CV-00344 GTE.
• Citation: 280 F.Supp.2d 867
• Parties: Cynthia MORICONI, Individually and on behalf of All Others Similarly Situated, Plaintiff, v. AT & T WIRELESS PCS, LLC d/b/a AT & T Wireless, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

Page 867

280 F.Supp.2d 867

Cynthia MORICONI, Individually and on behalf of All Others Similarly Situated, Plaintiff, v. AT & T WIRELESS PCS, LLC d/b/a AT & T Wireless, Defendant.

No. 4:03-CV-00344 GTE.

United States District Court, E.D. Arkansas, Western Division.

August 19, 2003.

Brian G. Brooks, Susan Nichols, Brian David Reddick, Christine Connely Althoff,

Wilkes & McHugh, P.A., Little Rock, AR, for plaintiff.

Steven W. Quattlebaum, E.B. Chiles, IV, Patrick William McAlpine, Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, AR, for defendant.

MEMORANDUM OPINION AND ORDER

EISELE, District Judge.

Before the Court is Plaintiff's Motion to Remand (Docket # 4). Plaintiff seeks to remand this action back to the state court from which it was removed. Over Defendant's objection, the Court finds that it lacks subject matter jurisdiction in this case, and the case must therefore be remanded.

I. PROCEDURAL BACKGROUND

Plaintiff Cynthia Moriconi, acting individually and on behalf of other similarly situated individuals, originally filed suit on March 20, 2003, in the Circuit Court of Pulaski County, Arkansas. On May 14, 2003, Defendant AT & T Wireless PCS, LLC d/b/a AT & T Wireless ("AT & T") filed a Notice of Removal, resulting in the removal of this case to federal court and assignment to the undersigned judge. Plaintiff's Motion to Remand shortly followed.

AT & T contends that this Court has the power to hear this case based on both federal question and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Although Plaintiff raises what are represented to be solely state law claims, AT & T contends the claims are, in fact, claims arising under federal law due to the preemptive effect of the Federal Communications Act ("FCA"), 47 U.S.C. § 151 et seq. Plaintiff disagrees, contending that her state law claims are cognizable notwithstanding the FCA. AT & T further contends that there is complete diversity of citizenship and the matter in controversy exceeds $75,000, exclusive of interest and costs. Plaintiff disputes that the jurisdictional amount is satisfied.

II. THE COMPLAINT

Plaintiff, a consumer of wireless telephone services, purporting to represent herself and other similarly situated wireless customers (hereinafter referred to as "Class Members") challenges certain of Defendant's business practices and the written contract establishing the terms and conditions of the service relationship. Plaintiff's contentions, the specifics of which are outlined in an eighteen page complaint, may be grouped into two broad areas.

First, Plaintiff challenges the manner in which Defendant markets and advertises its wireless services and its charges for such services. As described in the opening paragraphs of Plaintiff's Complaint:

2. . . . [Defendant's] calling plans typically include a flat monthly access/service fee together with either a set number of air-time minutes each month for wireless calls, or provide that air-time will be billed based upon the amount used within a given billing cycle. However, these calling plans uniformly failed to disclose applicable fees and charges, billing and sales practices, service limitations, and other short comings of Defendant's wireless phone network clearly and conspicuously. . . .

3. In fact, the marketing and business and billing practices for these calling plans have consistently misrepresented or failed to disclose, and repeatedly omitted, common material facts necessary to reasonably apprise Plaintiff and other similarly-situated consumers of the material effect of certain billing practices (including the financial consequences of those billing practices on the effective rates charges), and the geographical limitations and other deficiencies with respect to the wireless phone service actually provided, which has caused consumers to pay higher monthly wireless phone charges and fees, and receive lesser quality service than that reflected in Defendant's marketing and as agreed in the underlying customer service agreements.

4. Ms. Moriconi files this class action on behalf of herself and other consumers to obtain restitution and damages from Defendant resulting from Defendant's deceptive, unfair, and unconscionable practices and to enjoin Defendant from further misrepresenting its calling plans to herself and others.

(Complaint at pp. 1-3).

The remainder of the Complaint is consistent with this initial description. Plaintiff complains that Defendant misrepresents to its wireless telephone customers in a similar fashion the quality of the service provided and the manner in which consumers will be charged for such services.

Second, Plaintiff complains that all consumers of AT & T's wireless customers are subjected to pre-printed, non-negotiable, "patently adhesive," "Terms and Conditions" which impose unfair terms and limitations. Among the challenged "Terms and Conditions" are AT & T's attempt to use the contract to limit its liability, the allowance of unilateral changes to material contract terms, and the imposition of mandatory arbitration to resolve disputes. Plaintiff requests a declaration that the limitations on liability and mandatory arbitration provisions contained in the written contract between AT & T and Class Members are "unfair, unconscionable, and otherwise unlawful and unenforceable." (Complaint at ¶ 75).

Plaintiff alleges four causes of action: (1) declaratory relief seeking the declaration of the contractual and other legal rights of the parties, pursuant to Ark.Code Ann. § 16-111-104; (2) an equitable claim for restitution of monies received based upon AT & T's failure to adequately disclose the material terms and limitations of its calling plans; (3) actual damages and attorneys' fees for violation of the Arkansas Deceptive and Unconscionable Trade Practices Act, Ark.Code Ann. § 4-88-101 et seq.; and (4) actual damages and attorneys' fees for violation of Arkansas' Deceptive Advertising statute, Ark.Code Ann. § 4-88-108.

III. REMOVAL AND REMAND

Any civil action brought in state court which alleges claims within the original jurisdiction of the United States District Courts may be removed by the defendant to the appropriate federal court. 28 U.S.C. §§ 1441(a). Once a case has been removed to federal court, a motion to remand to state court may be brought on the basis of any defect in the removal procedure. 28 U.S.C. §§ 1447(c). If it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. §§ 1447(c).

In reviewing a motion to remand, the court must resolve all doubts in favor of a remand to state court, and the party opposing remand has the burden of establishing federal jurisdiction by a preponderance of the evidence. In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.1993)(citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3rd Cir.1987), cert. dismissed 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988)).

The Court must decide whether Plaintiff's claims are within the original jurisdiction of this Court. AT & T contends that the Court has subject matter jurisdiction, either on federal question or diversity grounds. 28 U.S.C. §§ 1331, 1332. These alternative theories for jurisdiction are discussed separately below.

IV. FEDERAL QUESTION JURISDICTION

A civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. 28 U.S.C. § 1441(b). The Court has original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

Determining when a suit "arises under" a federal law is customarily determined by applying the well-pleaded complaint rule "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Because the plaintiff is considered the master of his complaint, he may elect to avoid federal removal jurisdiction by relying solely on state law. Id. "Congress has long since decided that federal defenses do not provide a basis for removal." Id. at 399, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318. "Thus, a case may not be removed to federal court on the basis of a defense, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998)(internal quotations omitted).

Limited exceptions to the well-pleaded complaint rule have been recognized. Recently, the Supreme Court characterized these exceptions as follows: "a state claim may be removed to federal court in only two circumstances — when Congress expressly so provides, such as in the Price-Anderson Act¹ . . ., or when a federal statute wholly displaces the state-law cause of action through complete preemption." Beneficial Nat. Bank v. Anderson, ___ U.S. ___, ___, 123 S.Ct. 2058, 2063, 156 L.Ed.2d 1 (June 2, 2003)("As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.")

Despite the omission of any federal claim in Plaintiff's Complaint, Defendant contends that federal question jurisdiction exists in this case for two independent reasons. First, Defendant contends that Plaintiff's state law claims are completely preempted by the Federal Communications Act.² Second, Defendant contends based on the "substantial federal question" doctrine that the real nature of Plaintiff's complaint is federal, and thus, that a federal question exists. The Court rejects both contentions.

A. Complete Preemption

Complete preemption applies in circumstances where certain federal statutes are deemed to possess "extraordinary preemptive power, a...