State ex re. Nixon v. Nextel West Corp., 4:02-CV-1845 CAS.

• Decision Date: 04 February 2003
• Docket Number: No. 4:02-CV-1845 CAS.,No. 4:02-CV-1846 CAS.,4:02-CV-1845 CAS.,4:02-CV-1846 CAS.
• Parties: STATE ex rel. Jeremiah W. (Jay) NIXON, Plaintiff, v. NEXTEL WEST CORP., et al., Defendants
• Court: U.S. District Court — Eastern District of Missouri

248 F.Supp.2d 885

STATE ex rel. Jeremiah W. (Jay) NIXON, Plaintiff, v. NEXTEL WEST CORP., et al., Defendants

No. 4:02-CV-1845 CAS.

No. 4:02-CV-1846 CAS.

United States District Court, E.D. Missouri, Eastern Division.

February 4, 2003.

Erwin O. Switzer, III, Partner, Rex M. Burlison, Jacob B. Zimmerman, Attorney General of Missouri, St. Louis, MO, for Plaintiff.

Glennon P. Fogarty, Husch and Eppenberger, LLC, St. Louis, MO, Brant M. Laue, Armstrong and Teasdale, Kansas City, MO, John E. Villafranco, Collier and Shannon, Washington, DC, Jay A. Summerville, Armstrong Teasdale, LLP, St. Louis, MO, Chad E. Colgan, Armstrong and Teasdale, Kansas City, MO, Lee Lauridsen, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

SHAW, District Judge.

These cases are before the Court on plaintiffs motions to remand for lack of subject matter jurisdiction. Defendants Nextel West Corporation ("Nextel") and Sprint Spectrum, L.P. ("Sprint") oppose the motions. Also pending are Nextel's motion to dismiss, and both defendants' motions to transfer venue. These cases will be consolidated on the Court's own motion pursuant to Federal Rule of Civil Procedure 42(a). For the following reasons, the Court concludes it lacks subject matter jurisdiction over the consolidated case, and will grant plaintiffs motion to remand it to the state court from which it was removed.¹

I. Background.

Plaintiff Jeremiah "Jay" Nixon, the Attorney General of the State of Missouri, filed this action in the Circuit Court of the City of St. Louis, Missouri. Sprint removed the action to federal court citing 28 U.S.C. §§ 1331, 1337, 1441(a) and (b), and defendant Nextel removed citing 28 U.S.C. §§ 1441(a) and 1446(a).² Both defendants contend that plaintiffs claims are either completely preempted by federal law or raise a substantial federal question under the Federal Communications Act of 1934, specifically 47 U.S.C. § 332(c)(3)(A) ("FCA"). Plaintiff filed a motion to remand, which defendants oppose. Defendant Nextel has filed a motion to dismiss plaintiffs claims. Both defendants have filed motions to transfer the case to the United States District Court for the Western District of Missouri.

The Petition alleges that defendants are engaging in consumer fraud and seeks to prevent such conduct and to recover costs and statutory penalties. The Petition asserts claims under the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§ 407.010 et seq. Plaintiff seeks a temporary restraining order and preliminary injunction against Nextel and Sprint to ban certain allegedly deceptive advertising and invoicing.

The Petition alleges that defendants have decided to charge their customers more money for cellular telephone services, but rather than increasing their basic rates, defendants have characterized the increase as a fee. Plaintiff does not contend this is prohibited, but does contend that the manner in which defendants have invoiced and advertised the fee is deceptive, because it appears to be a tax or mandated by the federal government. Specifically, plaintiff alleges that Nextel lists on its invoices a line item for "Federal Programs Cost Recovery" under the heading "Unit Taxes, Fees and Assessments," after a list containing properly assessed taxes. Sprint lists on its invoices a line item for "USA Regulatory Obligations and Fees" under the heading "Other Surcharges and Fees," which is under the general heading "Detail of Taxes, Regulatory and Other Surcharges and Fees." Plaintiff asserts these two charges are simply part of the companies' overhead costs of complying with governmental regulations and are like other overhead costs.³

The petition asserts consumer fraud in that Nextel and Sprint, while advertising a basic monthly charge, are inconspicuously increasing the actual rates they impose on consumers. Plaintiff asserts that most reasonable consumers will assume the "Federal Programs Cost Recovery" fee or the "USA Regulatory Obligations and Fees" charge are taxes or mandated fees that apply to all cellular telephone companies rather than charges Nextel and Sprint have chosen to impose. As a result, plaintiff contends that Nextel and Sprint's advertised monthly rates are understated, and this constitutes a deception which makes it more difficult for consumers to shop around and find the best cellular telephone deal available. Plaintiff also contends this deception prevents customers from knowing they can exercise certain contractual rights, specifically the right to terminate their cellular service agreements upon the imposition of a rate increase. By concealing the rate increase, Nextel and Sprint ensure that most customers will not realize they can cancel their service agreements.

II. Legal Standard.

The party invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction are satisfied. Hatridge v. Aetna Cos. & Sur. Co., 415 F.2d 809, 814 (8th Cir.1969). Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir.1997), cert. denied 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998). In determining whether a claim "arises under" federal law, courts must be "mindful that the nature of federal removal jurisdiction—restricting as it does the power of the states to resolve controversies in their own courts—requires strict construction of the legislation permitting removal." Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir.2002) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). If "at any time before final judgment it appears that the district court lacks subject matter jurisdiction," the case must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c).

The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction. See 28 U.S.C. § 1441(b). "A defendant may remove a state court claim to federal court only if the claim originally could have been filed in federal court, and the well-pleaded complaint rule provides that a federal question must be presented on the face of the properly pleaded complaint to invoke federal court jurisdiction." Gore v. Trans World Airlines, 210 F.3d 944, 948 (8th Cir.2000) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)), cert. denied, 532 U.S. 921, 121 S.Ct. 1358, 149 L.Ed.2d 288 (2001).⁴ A federal question is raised in "those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law." Peters v. Union Pacific Railroad Co., 80 F.3d 257, 260 (8th Cir.1996) (quoting Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).

In most instances, the presence or absence of a federal question is governed by the well-pleaded complaint rule "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. A plaintiff is the master of his complaint, and may avoid federal removal jurisdiction by exclusive reliance on state law. Id. "Congress has long since decided that federal defenses do not provide a basis for removal." Id. at 399, 107 S.Ct. 2425. "Thus, a case may not be removed to federal court on the basis of a defense, even if the defense in anticipated in the plaintiffs 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 and alterations omitted).

There are limited circumstances, however, in which the presentation of a federal defense will give rise to federal jurisdiction. The doctrine of complete preemption is a narrow exception to the well-pleaded complaint rule. Krispin v. May Dep't Stores Co., 218 F.3d 919, 922 (8th Cir. 2000). Complete preemption applies in circumstances where certain federal statutes are deemed to possess "`extraordinary pre-emptive power,' a conclusion courts reach reluctantly." Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996) (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). Under the doctrine, "[o]nce an area of state law has been completely pre-empted, 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, 482 U.S. at 393, 107 S.Ct. 2425. "Whether federal law pre-empts a state-law cause of action is a question of congressional intent." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Courts "must determine whether Congress has clearly manifested an intent to make a cause of action pleaded under state law removable to federal court, mindful that in the ordinary case federal preemption is merely a defense to a plaintiffs lawsuit." Magee v. Exxon Corp., 135 F.3d 599, 602 (8th Cir. 1998) (internal citation omitted).

The artful pleading doctrine provides that a plaintiff may not defeat removal by omitting to plead necessary federal questions. Rivet, 522 U.S. at 475, 118 S.Ct. 921. The artful pleading doctrine is limited to federal statutes which "so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal." Metropolitan Life, 481 U.S. at 63, 107 S.Ct. 1542.

III. Discussion.

Plaintiffs motion to remand and Nextel's motion to...