Johnson v. Sprint Solutions, Inc. , 357 F. App'x 561 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1948
MYRA JOHNSON, on behalf of herself and all others similarly
situated,
Plaintiff - Appellant,
v.
SPRINT SOLUTIONS, INCORPORATED,
Defendant – Appellee,
and
SPRINT NEXTEL CORPORATION,
Defendant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:08-cv-00054-GCM)
Argued: September 24, 2009 Decided: December 18, 2009
Before KING and DUNCAN, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Gary Walker Jackson, JACKSON & MCGEE, LLP, Charlotte,
North Carolina, for Appellant. David Edward Mills, DOW LOHNES,
PLLC, Washington, D.C., for Appellee. ON BRIEF: Samuel McGee,
JACKSON & MCGEE, LLP, Charlotte, North Carolina, for Appellant.
Michael Kovaka, DOW LOHNES, PLLC, Atlanta, Georgia; Daniel D.
Prichard, DOW LOHNES, PLLC, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On March 23, 2005, Myra Johnson (“Johnson”) entered into a
multiple document cell phone contract (“the Contract”) with
Sprint Solutions, Inc. (“Sprint”) that permitted Sprint to
charge Johnson roaming fees on a per-call basis. Sprint
subsequently billed Johnson roaming fees for calls she made or
received while in places such as Charlotte and Rockingham, North
Carolina. Although Johnson believed these areas were well
within Sprint’s service network as described in the Contract,
and that Sprint had wrongfully billed her roaming fees for those
calls, she initially paid the fees without protest. Eventually,
however, she determined that these billings breached the
Contract and sued Sprint “on her behalf and on behalf of others
similarly situated,” for breach of contract, negligent
misrepresentation, unjust enrichment, violation of North
Carolina’s Unfair and Deceptive Trade Practices Act, and also
for injunctive relief.
Johnson’s complaint alleged that Sprint lacked the
technological ability to verify the geographic location of
customers using its services, and accordingly theorized that all
bills containing roaming fees had been wrongfully charged and
assessed. Sprint moved to dismiss the complaint pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The
district court granted Sprint’s motion, reasoning that North
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Carolina’s “voluntary payment doctrine” 1 barred Johnson’s claim.
See Johnson v. Sprint Solutions, Inc., 2008 WL 2949253 (W.D.N.C.
2008). Johnson appeals from that order, contending that the
district court misinterpreted and misapplied the voluntary
payment doctrine. As discussed below, we affirm the district
court’s judgment; however, we do so on alternate grounds. See
Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996).
I.
We review de novo the district court’s decision to grant a
motion to dismiss. Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008). We accept the factual allegations in
Johnson’s complaint as true, but recognize that, to survive a
motion to dismiss, the complaint must set forth a claim to
relief that is plausible on its face. See Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).
II.
Johnson’s claim rests entirely on the proposition that
various maps provided and displayed by Sprint formed part of the
1
North Carolina’s voluntary payment doctrine stands for the
simple principle that “the voluntary payment of money by a
person who has full knowledge of all the facts can not [sic] be
recovered.” Guerry v. American Trust Co., 68 S.E.2d 272, 274
(N.C. 1951).
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Contract, and that these maps outlined where Sprint customers
would, and would not, be subject to roaming fees. Relying on
this, Johnson argues that Sprint breached the Contract by
charging roaming fees for calls she made or received in places
depicted on the maps as non-roaming areas. She contends that
Sprint misled her into believing it had the ability to verify
her geographic location whenever she used Sprint’s services.
In her complaint, Johnson alleged that the Contract was
comprised of a PCS Advantage Agreement, the PCS Service Plans
Guide and “[a]ny other printed materials made available to the
FF Subscriber, which includes a Sprint PCS Coverage Guide, which
includes maps depicting the Home Area.” She attached these
documents as exhibits to her complaint. J.A. 27-136.
Her complaint also asserted that Sprint’s Terms and
Conditions (“Ts & Cs”) did not comprise a part of the Contract
because Sprint did not deliver them at the time Johnson signed
the PCS Advantage Agreement. 2 Although Johnson did not attach
Sprint’s Ts & Cs to her complaint, Sprint filed them as exhibits
2
Just above Johnson’s signature on the PCS Advantage
Agreement, it states in pertinent part:
By signing below you … (ii) agree that you have read
and agreed to all terms of this Agreement, including
the requirements of your PCS Service Plan and the most
recent Ts&Cs . . .”
J.A. 28.
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to its motion to dismiss. J.A. 140-55. In considering Sprint’s
motion to dismiss, the district court concluded that the Ts & Cs
comprised a part of Johnson’s contract with Sprint, a conclusion
Johnson does not challenge on appeal. Before us, she disputes
only whether the district court properly interpreted the Ts & Cs
when it dismissed the complaint.
Based on our review, we conclude that the Contract consists
of the PCS Advantage Agreement, the PCS Service Plans Guide, the
PCS Coverage Guide and the maps depicted in it, Sprint’s Ts &
Cs, as well as any printed materials, including maps, provided
or displayed to Johnson by Sprint at its store. We further
conclude that, under the plain terms of the Contract, Sprint’s
maps were no more than approximate representations of service
coverage areas and provided no geographic promises depicting
where Johnson would and would not be subject to roaming fees.
The Sprint PCS Coverage Guide (“Coverage Guide”), for example,
states:
Coverage Maps: Maps show approximate service areas for
outdoor coverage. They’re based on computer-generated
radio-frequency projections and information from third
parties but don’t guarantee service availability.
Actual coverage and the quality and availability of
coverage can vary according to network problems,
signal strength, your equipment, terrain, structures,
weather and other limitations or conditions. Coverage
isn’t available everywhere and may not be available in
all areas shown on these maps.
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(emphasis added). Similarly, the text accompanying a map
appearing in the Coverage Guide provides:
Map sets forth approximate service areas for outdoor
coverage and is not a guarantee of service
availability.
(emphasis added). This language alone convincingly establishes
that Sprint’s maps did not constitute an unequivocal and
definite promise signaling where Johnson would and would not be
subject to roaming fees.
Our conclusion is further bolstered by the following
language in the Ts & Cs:
You are roaming anytime your phone indicates that you
are roaming. . . . Depending on your phone settings,
you may automatically roam if there is a gap or
interruption in coverage within the Sprint Nationwide
PCS Network coverage area and roaming coverage areas.
(emphasis added). Thus, Johnson’s claims all rest on a theory
wholly refuted by the plain terms of the Contract and fail as a
matter of law.
After considering the briefs and oral arguments of counsel,
and the record before us, we affirm the district court’s
judgment on the ground that Johnson’s contract with Sprint
entitles her to no relief. We therefore need not consider
whether North Carolina’s voluntary payment doctrine barred her
claim.
AFFIRMED
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