Sheppard v. Google, Inc.
| Decision Date | 06 December 2012 |
| Docket Number | CASE NO. 4:12-CV-04022 |
| Parties | JULIE SHEPPARD PLAINTIFF v. GOOGLE, INC. DEFENDANT |
| Court | U.S. District Court — Western District of Arkansas |
Before the Court is Plaintiff's Motion to Remand. (ECF No. 17). Google has responded (ECF No. 21), Plaintiff has replied (ECF Nos. 23 & 45), and Google has sur-replied. (ECF No. 32). The Court has also considered the amicus brief filed by the State of Arkansas. (ECF No. 43). The matter is ripe for the Court's consideration. For the following reasons, the motion will be granted.1
Plaintiff filed this suit in Little River County Circuit Court on February 1, 2012. Her case concerns Google's free email service, Gmail. Plaintiff is not a gmail user, but she alleges that when she emails someone who is a Gmail user, Google "takes data from" her email and uses it to target ads to the email recipient based on the content of her email. (ECF No. 3, at 2). This, she argues, violates her property interest in her email content. She further contends that Google's practice is not excused by any consent from the intended recipient because, until the intendedrecipient receives the email, the recipient lacks authority to consent to Google taking the email's content.
Plaintiff sued for a declaratory judgment proclaiming the content of her emails to be her property, at least until the email is opened by the recipient. She asks for further relief conditioned on that proclamation, specifically for "the Court to order Google to show cause why further relief should not be granted forthwith, to include a demonstration by Google as to why future acts adverse to Plaintiff's property interests would not amount to" conversion, theft, and other violations of Arkansas computer laws. (ECF No. 3, at 5). Regardless of what relief she seeks, Plaintiff "expressly limits the value of her declaratory relief and any supplemental relief thereafter sought to less than $75,000." (ECF No. 3, at 2).
Google removed the case to this Court on March 9, 2012. Google makes three arguments for federal-court jurisdiction over this otherwise state-court case: 1) Plaintiff's claims implicate the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2511 et seq. (2006), and are therefore completely preempted; 2) Plaintiff's claims implicate the ECPA and therefore raise substantial federal-law questions; and 3) Plaintiff's claims are worth more than $75,000 and she is diverse from Google and therefore the Court has diversity jurisdiction.
Plaintiff now moves the Court to remand this case to Little River County Circuit Court because none of Google's jurisdiction arguments are availing.
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A party must successfully allege specific criteria before a federal court may retain jurisdiction over a case. See generally 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3522 (2d ed. 1984 & Supp.2008). A defendant may remove a case from state court to federal court only if the defendant shows that the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a).
Original federal-court jurisdiction exists when the case involves a federal question or when the parties are diverse and a certain amount is at stake in the case. 28 U.S.C. §§ 1331; 1332. The party removing a case to federal court bears the burden of proving that federal jurisdiction exists. Carson v. Dunham, 121 U.S. 421, 426 (1887); Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009). Federal jurisdiction is determined by plaintiff's pleadings at the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939); Colorado Life Co. v. Steele, 95 F.2d 535, 537 (8th Cir. 1938); Wang v. Pacific Cycle, Inc., 530 F. Supp. 2d 1048, 1050 (S.D. Iowa 2008). Once a case is removed to federal court, a plaintiff may move to remand the case to state court if there is a defect in the removal process or if the federal court lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c). The court's removal jurisdiction is strictly construed, and all doubts are resolved in favor of remand. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).
Google argues that the Court has federal-question jurisdiction over this case because Plaintiff's claims are completely preempted and because the claims present a substantial question of federal law. Google also argues that the Court has diversity jurisdiction over this case because the parties are diverse and Plaintiff's promise not to seek more than the jurisdictional minimum is unavailing. The Court will address each of Google's arguments in turn.
Google's primary argument is that the Court has federal-question jurisdiction over this case. Google argues that Plaintiff's suit is essentially federal because the suit implicates the ECPA, a federal statute. That implication, Google argues, gives rise to complete preemption and to a substantial federal question, both of which create federal-question jurisdiction.
Congress passed the Electronic Communications Privacy Act in 1986 to protect the privacy of electronic communications. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 1, 100 Stat. 1848 (1986); Quon v. Arch Wireless Operating Co., 309 F. Supp. 2d 1204, 1207 (C.D. Cal. 2004). Title I of the ECPA amended the Wiretap Act and Title II created the Stored Communications Act ("SCA").2 United States v. Steiger, 318 F.3d 1039, 1046-47 (11th Cir. 2003). The ECPA is a criminal statute that allows civil enforcement. 18 U.S.C. § 2520(a) (Wiretap Act); 18 U.S.C. § 2707(a) (Stored Communications Act).
The elements one must prove to establish a violation of Title I of the ECPA show why Plaintiff's complaint seems to implicate the ECPA. Proving a violation of Title I requires showing that a defendant: "(1) intentionally (2) intercepted, endeavored to intercept or procured another person to intercept or endeavor to intercept (3) the contents of (4) an electronic communication (5) using a device." In re Pharmatrak, Inc., 329 F.3d 9, 18 (1st Cir. 2003).
Google argues that Plaintiff's claims are so similar to a claim under the ECPA that the Act is implicated by Plaintiff's complaint even if Plaintiff claims that it is not. The Court agrees. However, that implication does not alone answer the question whether federal-question jurisdiction exists in this case. Neither complete preemption nor a substantial federal question is at issue in this case, and therefore federal-question jurisdiction does not exist.
Complete preemption provides federal-question jurisdiction even where a complaint, such as Plaintiff's, does not state an explicit federal claim. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). An examination of the doctrine and how it applies to the ECPA reveals that complete preemption does not apply in this case.
Complete preemption exists where "the pre-emptive force of a statute is so 'extraordinary' that it 'converts an ordinary state common-law complaint into one stating a federal claim...." Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Such preemptive force "wholly displaces the state-law cause of action...." Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004) (quoting Anderson, 539 U.S. at 8). A state-law action falling under a completely preemptive federal statute "is in reality based on federal law." Id. Being based on federal law, the state-law action may be removed to federal court.
Ordinary preemption—including express preemption, implied field preemption, and implied conflict preemption3 —however, does not create federal jurisdiction. Caterpillar Inc., 482 U.S. at 393. Ordinary preemption is usually "merely a defense to a plaintiff's state-law claim...." Chapman v. Lab One, 390 F.3d 620, 625 (8th Cir. 2004). Defenses, even if federal in nature, do not provide federal jurisdiction. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28 (1974). "Thus, it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Id. (emphasis original).
"Complete preemption, as opposed to ordinary or conflict preemption, is rare...." Thomas v. U.S. Bank Nat'l Ass'n ND, 575 F.3d 794, 797 (8th Cir. 2009). Courts are reluctant to find it. Bates, 548 F.3d at 636 (quoting Gaming Corp. of America. v. Dorsey & Whitney, 88 F.3d 536,543 (8th Cir. 1996)). Complete preemption is more difficult to prove than ordinary preemption. Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 n.1 (11th Cir. 2010) (); see also Fayard v. N.E. Vehicle Servs., LLC, 533 F.3d 42, 49 (1st Cir. 2008); Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir. 2005).
"[T]he intent of Congress is what controls" the existence of preemption. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 547 (8th Cir. 1996) (citing Pilot Life Ins. Co. v. Dedeaux, 484 U.S. 41, 45 (1987)). "Complete preemption analysis thus depends on the existence of palpable evidence that Congress intended to displace completely a particular category of state-law causes of action, as manifested by the federal statute's language, overall structure, and legislative history." Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik, 510 F.3d 77, 99 (1st Cir. 2007).
Google argues that the ECPA's express-preemption provision is the source from which to glean Congress's preemptive intent for the statute.4 That provision states that "[t...
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