Sanderson, Thompson, Ratledge & Zimny v. Awacs, Civ. A. No. 96-145-LON.

• Decision Date: 25 March 1997
• Docket Number: Civ. A. No. 96-145-LON.
• Citation: 958 F.Supp. 947
• Parties: SANDERSON, THOMPSON, RATLEDGE & ZIMNY, individually and on behalf of all others similarly situated, Plaintiff, v. AWACS, INC., d/b/a Comcast Metrophone, Defendant.
• Court: U.S. District Court — District of Delaware

958 F.Supp. 947

SANDERSON, THOMPSON, RATLEDGE & ZIMNY, individually and on behalf of all others similarly situated, Plaintiff, v. AWACS, INC., d/b/a Comcast Metrophone, Defendant.

Civ. A. No. 96-145-LON.

United States District Court, D. Delaware.

March 25, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John M. Stull, Wilmington, DE (James M. Orman, Philadelphia, PA, Sherrie R. Savett, and Kenneth L. Fox of Berger & Montague, P.C., Philadelphia, PA, of Counsel), for Plaintiff.

Allen M. Terrell, Jr., and Claudia A. Del-Gross, of Richards, Layton & Finger, Wilmington, DE (Mary E. Kohart, Seamus C. Duffy, Jeanine M. Kasulis, and Mary Catherine Roper of Drinker Biddle & Reath, Philadelphia, PA, of Counsel), for Defendant.

OPINION

LONGOBARDI, District Judge.

Plaintiff Sanderson, Thompson, Ratledge & Zimny ("Sanderson") filed a putative class action in the Superior Court of the State of Delaware for New Castle County against defendant AWACS, Inc., d/b/a/ Comcast Metrophone ("Comcast"). Comcast removed this action to this Court. Presently before the Court is Sanderson's motion to remand, asserting that this Court lacks subject matter jurisdiction over this action.

This case is one of three separate class actions filed against Comcast in the state courts in Pennsylvania, New Jersey, and Delaware. The claims and allegations asserted in each of the three actions are substantively identical. Comcast removed each of the three actions to federal court, and motions to remand for lack of subject matter jurisdiction were filed in all three. The court in the New Jersey action granted the motion. See DeCastro v. AWACS, Inc., 935 F.Supp. 541 (D.N.J.1996). The court in the Pennsylvania action denied the motion, concluding that it had jurisdiction on the basis of federal question jurisdiction. See In re Comcast Cellular Telecommunications Litig., 949 F.Supp. 1193 (E.D.Pa.1996). For the reasons stated herein, the Court will grant Sanderson's motion.

I.

Comcast is a provider of cellular telephone services in Pennsylvania, New Jersey, Delaware, and Maryland. Sanderson brought suit on behalf of all persons who contracted with Comcast for cellular phone services during the period of February 15, 1990 to the present. The complaint alleges that it is the custom and practice of the telecommunications industry for telecommunications service providers to charge for service only when, and to the extent that, communication is actually established between a service subscriber and the person whom the subscriber has telephoned. Pursuant to this practice, a service provider commences the imposition of charges for a call when and only if the call is answered. Sanderson asserts that, contrary to industry custom and practice, Comcast commences billing for a call the moment a subscriber initiates a call by pushing the "send" button on the phone. Following the pressing of the "send" button, a period of time elapses (the "non-communication period") during which the subscriber is not in communication with the party to whom the call is made. Sanderson further alleges that Comcast extends the non-communication period by requiring its subscribers to input a personal identification code upon initiation of the call and rounding up all calls to the next highest minute in computing the charge. The complaint charges that Comcast's failure to disclose to its subscribers that they are being billed for the non-communication period violates the Delaware Consumer Fraud Act, 6 Del.Code §§ 2511 et seq., and also constitutes breach of contract, breach of the implied duty of good faith and fair dealing, and unjust enrichment.

II.

Comcast removed this action pursuant to 28 U.S.C. § 1441. Section 1441 provides that "civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant." Comcast asserts that there are two bases on which this Court can exercise original jurisdiction over this action: federal question jurisdiction (28 U.S.C. § 1331) and diversity jurisdiction (28 U.S.C. § 1332).

Sanderson's motion to remand was filed pursuant to 28 U.S.C. § 1447(c). On a motion to remand, the removing party, as the party urging the existence of jurisdiction, bears the burden of proving that jurisdiction exists. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990). In addition, the removal statute is "strictly construed against removal and all doubts should be resolved in favor of remand." Id. (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)).

III.

A.

Comcast first asserts that removal of this action is appropriate pursuant to the Court's federal question jurisdiction, 28 U.S.C. § 1331. Although not disputing that Sanderson's complaint, on its face, relies exclusively on state law, Comcast asserts that federal question jurisdiction exists because the Communications Act of 1934 (the "Act"), 47 U.S.C. §§ 151 et seq., completely preempts rate regulation of the telecommunications industry, thereby federalizing the causes of action in the complaint.

Section 1331, governing the federal question jurisdiction of the district courts, provides: "The district courts shall have jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." It is well settled that a civil action arises under federal law only when a federal question is presented on the face of the plaintiff's "well-pleaded complaint." Franchise Tax Bd. Of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 2846-47, 77 L.Ed.2d 420 (1983); Louisville & Nashville R.R. Co. v. Motley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Under the "well-pleaded complaint rule," a federal court does not have original federal question jurisdiction over a case in which the complaint raises only state law causes of action, even if it is apparent that a federal issue, such as federal preemption, will be raised in defense of the complaint. Franchise Tax Bd., 463 U.S. at 10, 103 S.Ct. at 2846-47; see Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987) ("Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court").

The Supreme Court, however, has developed an independent corollary to the well-pleaded complaint rule, known as the doctrine of "complete preemption." Under this doctrine, the Court has indicated that "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Taylor, 481 U.S. at 63-64, 107 S.Ct. at 1546. When Congress completely preempts an area of state law, "any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). In these situations, a plaintiff may not defeat removal by omitting to plead this necessary federal question in its complaint. Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. at 2852-53.

The situations in which the Supreme Court has found complete preemption to exist are limited. There are only two settings in which the Court has concluded that Congress intended to completely preempt the area: (1) suits to enforce a collective bargaining agreement under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and (2) suits for benefits under or to enforce rights provided by a plan covered by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), pursuant to section 502(a)(1)(B).

The Court first applied the complete preemption doctrine to the former of these two statutes in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). In Avco, an employer filed suit in state court seeking to enjoin a union from striking in violation of a no-strike clause in the collective bargaining agreement. Id. at 558, 88 S.Ct. at 1236. The employer asserted only a common law breach of contract claim. See Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. at 2852-53. The union removed to federal court, and the Supreme Court held that removal was appropriate because the cause of action arose under section 301 of the LMRA. Avco, 390 U.S. at 559-60, 88 S.Ct. at 1236-37.¹ Construing the Avco decision in Franchise Tax Board, the Court stated:

The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.

Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. at 2853-54 (footnote omitted).

In Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), the Court extended the complete preemption doctrine first developed in Avco to apply to section 502(a)(1)(B) of ERISA.² In that case, plaintiff brought suit in state court for, inter alia, breach of contract, seeking disability benefits under an ERISA regulated employee benefit plan. Id. at 60-61, 107 S.Ct. at 1544-45. Defendants removed, alleging that the district court had federal jurisdiction over the breach of contract claim by virtue of ERISA. Id. at 61, 107 S.Ct. at 1545.

The Supreme Court concluded that the Avco principle should be extended to section 502(a)(1)(B) of ERISA. The Court concluded that the policy of the inclusion of certain remedies and the exclusion of others under ERISA would be completely undermined if ERISA plan...