Robert Johnson v. American Towers, LLC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1872
ROBERT JOHNSON; MARY JOHNSON,
Plaintiffs - Appellants,
v.
AMERICAN TOWERS, LLC; FARMERS TELEPHONE COOPERATIVE, INC.;
CELLCO PARTNERSHIP, d/b/a Verizon Wireless; SPRINT CELLULAR
COMPANY OF SOUTH CAROLINA; SPRINT COMMUNICATIONS COMPANY
L.P.; ALLTEL COMMUNICATIONS, LLC; T-MOBILE USA TOWER LLC; T-
MOBILE USA INC.; AT&T INC.; AT&T MOBILITY LLC; AT&T MOBILITY
SERVICES, LLC; VERIZON WIRELESS, LLC; VERIZON WIRELESS
SERVICE LLC; VERIZON WIRELESS OF THE EAST LP; TRACFONE
WIRELESS, INC.,
Defendants – Appellees,
and
CELLCO TELEPHONE COMPANY OF THE SOUTHEAST, LLC; ALLTEL
COMMUNICATIONS, INCORPORATED; ALLTEL MOBILE COMMUNICATIONS
OF SOUTH CAROLINA, INC.,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:13-cv-00789-CMC)
Argued: October 29, 2014 Decided: March 25, 2015
Before SHEDD and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Shedd and Senior Judge Davis joined.
ARGUED: John E. Parker, PETERS, MURDAUGH, PARKER, ELTZROTH &
DETRICK, PA, Hampton, South Carolina, for Appellants. Scott H.
Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C.; Jeremy Cook Hodges, NELSON MULLINS
RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for
Appellees. ON BRIEF: William F. Barnes, III, PETERS, MURDAUGH,
PARKER, ELTZROTH & DETRICK, PA, Hampton, South Carolina, for
Appellants. John M.S. Hoefer, WILLOUGHBY & HOEFER, P.A.,
Columbia, South Carolina; Andrew E. Goldsmith, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for
Appellees Cellco Partnership, Sprint Cellular Company of South
Carolina, Alltel Communications, LLC, Verizon Wireless, Verizon
Wireless Service LLC, and Verizon Wireless of the East LP.
Robert W. Foster, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP,
Columbia, South Carolina, for Appellee Farmers Telephone
Cooperative, Inc. Daniel R. Settana, Jr., Janet Brooks Holmes,
MCKAY, CAUTHEN, SETTANA & STUBLEY, P.A., Columbia, South
Carolina, for Appellees AT&T Inc., AT&T Mobility LLC, and AT&T
Mobility Services, LLC. Eric G. Fosmire, THE FOSMIRE LAW FIRM,
LLC, Columbia, South Carolina, for Appellees T-Mobile USA Tower
LLC and T-Mobile USA, Incorporated. Elbert S. Dorn, Myrtle
Beach, South Carolina, Burl F. Williams, NEXSEN PRUET, LLC,
Greenville, South Carolina, for Appellee American Towers, LLC.
David S. Cox, Matthew E. Tillman, WOMBLE CARLYLE SANDRIDGE &
RICE, LLP, Charleston, South Carolina, for Appellee Sprint
Communications Company L.P. Daniel B. White, GALLIVAN, WHITE &
BOYD, P.A., Greenville, South Carolina, for Appellee TracFone
Wireless, Inc.
2
FLOYD, Circuit Judge:
This suit presents a novel but flawed legal theory applied
to admittedly tragic facts. Robert Johnson, a prison guard in
Bishopville, South Carolina, was shot multiple times in his
home. The ensuing investigation revealed that the attack was
ordered by an inmate at the prison where Mr. Johnson worked
using a contraband cell phone. Mr. Johnson survived the attack
and, with his wife, later brought suit. The Johnsons did not,
however, sue the typical defendants – i.e., the shooter or any
prison inmate or employee. Rather, the Johnsons sued several
cellular phone service providers and owners of cell phone
towers. According to the Johnsons, these defendants are liable
for Mr. Johnson’s injuries because they were aware that their
services facilitated the illegal use of cellphones by prison
inmates and yet failed to take steps to curb that use.
In this appeal by the Johnsons, we address two issues: (1)
whether the district court properly concluded that it had
federal jurisdiction over the Johnsons’ state-law claims; and
(2) if so, whether the district court properly dismissed the
Johnsons’ claims on the merits. For the reasons set forth
below, we affirm the judgment.
3
I.
A.
Captain Robert Johnson was an employee of the Lee
Correctional Institution in Lee County, South Carolina. As a
correctional officer, Mr. Johnson was responsible for seizing
cell phones and other contraband from inmates.
In March 2010, an assailant entered Mr. Johnson’s home and
shot him six times in the chest and stomach. His wife, Mary
Johnson, witnessed the attack. Mr. Johnson survived but
underwent eight surgeries and months of rehabilitation.
The U.S. Attorney for the District of South Carolina
concluded after a thorough investigation that a group of inmates
ordered the attack in retaliation for Mr. Johnson’s prior
confiscation of their contraband cell phones and other goods. 1
The U.S. Attorney further found that an unnamed inmate had used
a cell phone to communicate with the shooter, Sean Echols. That
inmate also paid Echols. Echols eventually pleaded guilty to
conspiracy to use interstate facilities in murder-for-hire under
18 U.S.C. § 1958(a). United States v. Echols, No. 3:13-cv-
1
Press Release, U.S. Attorney’s Office, District of South
Carolina, Man Pleads Guilty to Conspiracy to Commit Murder-for-
Hire in Shooting of Correctional Officer (Apr. 9, 2014),
available at http://www.fbi.gov/columbia/press-
releases/2014/man-pleads-guilty-to-conspiracy-to-commit-murder-
for-hire-in-shooting-of-correctional-officer.
4
00211-JFA (D.S.C. Aug. 13, 2014) (judgment of the district
court).
B.
In February 2013, the Johnsons filed suit in South Carolina
state court seeking to recover under state-law negligence and
loss of consortium theories. They seek to recover against two
groups of Defendants: (1) wireless service providers; 2 and (2)
owners of towers that lease space to those providers for the
provisions of wireless service. 3 The Johnsons alleged that both
sets of Defendants “were aware of the illegal use of cellphones
by inmates using signals emitted and received at the defendants’
towers” and that “this use created an unreasonable risk of harm
2
The wireless service providers named in this case are:
Sprint Cellular Company of South Carolina, Sprint Communications
Company, L.P, Alltel Communications, LLC, Alltel Communications,
Inc., Alltel Mobile Communications of South Carolina, Inc., T-
Mobile USA Tower LLC, T-Mobile USA, Inc., AT&T Inc., AT&T
Mobility LLC, AT&T Mobility Services, LLC, Verizon Wireless
(VAW) LLC, Verizon Wireless Services, LLC, Verizon Wireless of
the East LP, and TracFone Wireless, Inc. The Johnsons also
named Alltel Mobile Communications of South Carolina, Inc. and
Alltel Communications, Inc., neither of which are parties to
this appeal because they no longer exist. J.A. 28-32.
3
The tower owner defendants named in this case are:
American Towers, LLC, Farmers Telephone Cooperative, Inc.,
Cellco Telephone Company of the Southeast, LLC, Cellco
Partnership d/b/a Verizon Wireless, and T-Mobile USA. The
Johnsons also named Cellco Telephone Company of the Southeast,
LLC, which is not a party to this appeal because it no longer
exists. J.A. 26-27.
5
to others.” Appellants’ Br. at 6. The Johnsons sought
compensatory and punitive damages.
The Defendants timely removed the case to federal court,
asserting both federal question jurisdiction under 28 U.S.C.
§ 1331 and complete diversity under 28 U.S.C. § 1332. In April
2013, the Johnsons moved to remand the case to state court. The
district court denied the Johnsons’ motion on two grounds.
First, the district court concluded it had federal question
jurisdiction because the Federal Communications Act
(“Communications Act”) completely preempted all of the Johnsons’
state law claims. Second, the district court found that it had
diversity jurisdiction because the only non-diverse defendants
were fraudulently joined and the amount in controversy exceeded
$75,000.
On June 19, 2013, the district court consolidated the
Defendants’ motions to dismiss and granted the motion under Rule
12(b)(6) of the Federal Rules of Civil Procedure. It did so for
three reasons: (1) the Johnsons’ claims were barred by express
and conflict preemption; (2) South Carolina law did not impose a
duty on Defendants to prevent inmates from illegally using their
cell phone services; and (3) the Johnsons’ claims were
implausible and so did not meet pleading standards. This appeal
followed.
6
II.
The Johnsons contend that the district court lacked subject
matter jurisdiction over their state law claims, and thus erred
in denying their motion to remand. We review questions of
subject matter jurisdiction de novo, including questions related
to the propriety of removal. Lontz v. Tharp, 413 F.3d 435, 439
(4th Cir. 2005). As set forth below, we find that the
Communications Act does not completely preempt the Johnsons’
claims. Accordingly, the district court erred in finding the
existence of federal question jurisdiction. Nevertheless,
because the district court properly exercised jurisdiction on
the basis of diversity of citizenship of the parties, however,
we affirm the district court’s denial of the Johnsons’ motion to
remand.
A.
We first consider whether the district court correctly
found federal question jurisdiction. 28 U.S.C. § 1331. The
district court determined it had jurisdiction on this basis
because the Johnsons’ claims were completely preempted by the
Communications Act. In doing so, the district court relied on
three provisions of the Act: (1) Section 332, the Act’s
preemption provision; and (2) Sections 201 and 207, which when
read in conjunction allow private parties to recover damages
7
resulting from a common carrier’s breach of its obligation to
ensure that “all . . . practices . . . for and in connection
with communication service” are “just and reasonable.” 47
U.S.C. §§ 201(b), 207, 332. This was error.
At the outset, we note that complete preemption only
applies in a “very narrow” range of cases. Marcus v. AT&T
Corp., 138 F.3d 46, 54 (2d Cir. 1998). “The limited
applicability of the complete preemption doctrine is evidenced
by the fact that the [Supreme] Court has only approved its use
in three areas,” none of them pertinent to the Communications
Act. Id. In fact, we have recognized a presumption against
finding complete preemption. Lontz, 413 F.3d at 440 (citing
Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996)). This
presumption — of course a rebuttable one — exists, in part,
because “[f]ederalism concerns strongly counsel against imputing
to Congress an intent to displace ‘a whole panoply of state law
in [a certain] area’ absent some clearly expressed direction.”
Custer, 89 F.3d at 1167 (quoting Painters of Phila. Dist.
Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146,
1153 n.7 (3d Cir. 1989)).
The foundation of the district court’s complete preemption
finding is § 332 of the Communications Act. See 47 U.S.C.
§ 332(c)(3)(A) (“[N]o State or local government shall have any
authority to regulate the entry of or the rates charged by any
8
commercial mobile service or any private mobile service
. . . .”); Farina v. Nokia, Inc., 625 F.3d 97, 105-06 (3d Cir.
2010) (“The FCC’s jurisdiction extends to wireless telephone
service, and FCC authority over the technical aspects of radio
communications is ‘exclusive.’” (citations omitted)). As set
forth in Section III.A, infra, we agree that Section 332
expressly preempts the Johnsons’ claims on the merits. But
complete preemption and express preemption are different
animals.
Complete preemption and ordinary preemption on the merits
“are not as close kin jurisprudentially as their names suggest.”
Lontz, 413 F.3d at 440. Unlike ordinary preemption, which does
not create federal subject matter jurisdiction, complete
preemption has the effect of “transform[ing]” a state-law cause
of action into one arising under federal law because Congress
has occupied the field so thoroughly as to leave no room for
state-law causes of action at all. Caterpillar Inc. v.
Williams, 482 U.S. 386, 399 (1987). Put differently, complete
preemption is a “jurisdictional doctrine,” while “ordinary
preemption simply declares the primacy of federal law,
regardless of the forum or the claim.” Lontz, 413 F.3d at 440.
Complete preemption applies only when “Congress has clearly
manifested an intent to make causes of action . . . removable to
9
federal court.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66
(1987).
As we have repeatedly recognized, “‘the sine qua non of
complete preemption is a pre-existing federal cause of action
that can be brought in the district courts . . . .’” In re
Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir.
2006) (quoting Lontz, 413 F.3d at 441). Indeed, the Supreme
Court has emphasized that for the purposes of complete
preemption, the preempting statute must provide “the exclusive
cause of action” for claims in the area that the statute
preempts. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9
(2003) (emphasis added). The district court relied on §§ 201
and 207 of the Communications Act, which, in the district
court’s view, provide a federal cause of action that is the
exclusive remedy for the Johnsons’ claims. 47 U.S.C. §§ 201,
207. 4 We disagree.
As an initial matter, §§ 201 and 207 allow recovery only
against common carriers. Under the Communications Act, “‘common
carriers’ are entities that must provide [transmission]
4
Section 207 provides a remedy for the subject matter in §
201(b), which includes “all charges, practices, classifications
and regulations for and in connection with such communication
service.” 47 U.S.C. § 201(b); Global Crossing Telecomms., Inc.
v. Metrophones Telecomms., Inc., 550 U.S. 45, 53 (2007) (“[T]he
purpose of § 207 is to allow persons injured by § 201(b)
violations to bring federal-court damages actions.”).
10
service[s] to the public without discrimination and are heavily
regulated by the FCC.” Pinney v. Nokia, Inc., 402 F.3d 430, 450
(4th Cir. 2005) (citation omitted). The parties do not contend
that the tower owners provide any wireless service, and we
therefore conclude that these defendants cannot be treated as
common carriers. As a result, they cannot be sued under
Sections 201 and 207.
On the other hand, the wireless service provider defendants
are common carriers and so can be sued under §§ 201 and 207.
But nothing suggests that Congress intended these sections to
provide the exclusive remedy for the Johnsons’ state-law claims
against those defendants. See Beneficial Nat’l Bank, 539 U.S.
at 8. Rather, the Communication Act’s savings clause suggests
just the opposite. 47 U.S.C. § 414 (“Nothing in this chapter
contained shall in any way abridge or alter the remedies now
existing at common law or by statute, but the provisions of this
chapter are in addition to such remedies.”). As we have held,
this savings clause counsels against a finding that Congress
intended to sweep aside all state claims in a particular area.
Pinney, 402 F.3d at 450. This conclusion is consistent with
that of other courts addressing this issue. See In re NOS
Commc'ns, MDL No. 1357, 495 F.3d 1052, 1058 (9th Cir. 2007)
(stating that the Communication Act’s savings clause “is
fundamentally incompatible with complete field preemption; if
11
Congress intended to preempt the entire field of
telecommunications regulation, there would be nothing for
section 414 to ‘save’ and the provision would be mere
surplusage” (citing Marcus, 138 F.3d at 54)); accord Smith v.
GTE Corp., 236 F.3d 1292, 1313 (11th Cir. 2001). Consistent
with these decisions and our precedent in Pinney, we hold that
the Communications Act does not “wholly displace[]” state law in
this area because it explicitly preserved state-law remedies.
Beneficial Nat'l Bank, 539 U.S. at 8.
As the district court noted, Pinney concerned wireless
devices, not wireless service. 5 In our view, however, this is a
distinction without a difference. The savings clause applies to
the entirety of Chapter 5 of the Communications Act, including
§ 332 – the section at issue here regarding wireless service.
5
The district court observed that in Pinney, we
distinguished wireless device claims, which are not preempted by
the Communications Act, and claims that would “obstruct or
burden a wireless service provider’s ability to provide a
network of wireless service coverage.” 402 F.3d at 456.
Although § 332(c)(3)(A) preempts state regulation of “the entry
of or the rates charged by any commercial mobile service,” our
statement in Pinney appears in the context of a discussion of
express preemption, not complete preemption. We concluded that
§ 332 does not expressly preempt claims about wireless devices
while not deciding the exact contours of the Communications
Act’s express preemption of state-law barriers to market entry.
This analysis was separate from our discussion of complete
preemption in Pinney.
12
The savings clause demonstrates that congressional intent to
completely preempt this area of law is neither clear nor
manifest. 6 Accordingly, we hold that the district court erred in
its reliance on complete preemption principles when it denied
the motion to remand. 7
B.
We now turn to diversity jurisdiction. The Johnsons named
two non-diverse defendants in their complaint: Charleston-North
Charleston MSA and Farmers Telephone Cooperative. Normally,
this would defeat removal on the basis of diversity jurisdiction
under 28 U.S.C. § 1332 because complete diversity of citizenship
6
A close reading of § 207 similarly suggests that Congress
did not intend for that provision to be the exclusive remedy for
claims against common carriers. The section states that a person
“may either” bring a complaint to the FCC or “may bring suit” in
district court, but “such person shall not have the right to
pursue both such remedies.” 47 U.S.C. § 207. The section
states that a party may bring an action to the FCC or district
court, but cannot seek relief from both, rather than suggesting
that the FCC and the district court are the sole places to bring
an action.
7
The district court relied on Bastien v. AT&T Wireless
Servs., Inc., 205 F.3d 983, 986-87 (7th Cir. 2000), which held
that at least some areas of state regulation in the wireless
service context are completely preempted by federal law.
Bastien reads the savings clause in § 414 narrowly in order to
find that § 332 completely preempts state law in the areas of
market entry or rates. Id. Because Bastien is fundamentally
inconsistent with our decision in Pinney, however, we decline to
adopt its analysis here.
13
- meaning a plaintiff cannot be a citizen of the same state as
any defendant – is necessary for a federal court to exercise
diversity jurisdiction. Mayes v. Rapoport, 198 F.3d 457, 464
(4th Cir. 1999). The district court, however, found it could
properly retain subject matter jurisdiction under the fraudulent
joinder doctrine. Under that doctrine, naming non-diverse
defendants does not defeat diversity jurisdiction. Rather, the
fraudulent joinder doctrine “effectively permits a district
court to disregard, for jurisdictional purposes, the citizenship
of certain nondiverse defendants, assume jurisdiction over a
case, dismiss the nondiverse defendants, and thereby retain
jurisdiction.” Id. at 461.
“The party alleging fraudulent joinder bears a heavy
burden—it must show that the plaintiff cannot establish a claim
even after resolving all issues of law and fact in the
plaintiff's favor.” Hartley v. CSX Transp., Inc., 187 F.3d 422,
424 (4th Cir. 1999). The removing party must show either
“‘outright fraud in the plaintiff’s pleading of jurisdictional
facts’ or that ‘there is no possibility that the plaintiff would
be able to establish a cause of action against the in-state
defendant in state court.’” Id. (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
The Defendants in this action rely on the latter, “no
possibility” formulation, in which a plaintiff’s claim against a
14
non-diverse defendant “need not ultimately succeed to defeat
removal; only a possibility of a right to relief need be
asserted.” Marshall, 6 F.3d at 233. This standard heavily
favors the Johnsons, who must show only a “glimmer of hope” of
succeeding against the non-diverse defendants. Mayes, 198 F.3d
at 466. Moreover, when considering whether the Johnsons have
satisfied this standard, we must resolve all legal and factual
issues in their favor. Id. at 465. “[T]his standard is even
more favorable to the plaintiff than the standard for ruling on
a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Id.(quoting Hartley, 187 F.3d at 424). Even under this rigorous
standard, however, we conclude that the Johnsons have no
possibility of succeeding against either of the non-diverse
defendants.
It is undisputed that the first non-diverse defendant –
Charleston-North Charleston MSA Limited Partnership (formerly
the Sprint Cellular Company of South Carolina) – has no federal
license to provide cell phone service in Lee County, South
Carolina, where the prison is located. 8 Because Charleston-North
Charleston MSA could not have carried the alleged cell phone
call ordering the attack on Mr. Johnson, it could not possibly
8
The Johnsons do not appear to contest this issue on appeal
and did not dispute the Defendants’ showing in district court.
15
be liable under the Johnsons’ legal theories. 9 There is thus no
possibility that the Johnsons could succeed against Charleston-
North Charleston. Hartley, 187 F.3d at 424. Accordingly, the
district court properly disregarded Charleston-North Charleston
MSA for diversity purposes.
C.
The Johnsons’ claims against the second non-diverse
defendant, Farmers Telephone Cooperative, present a more complex
question on fraudulent joinder. Farmers Telephone Cooperative
(Farmers) leases a tower to wireless carriers, who in turn place
equipment on the tower to transmit wireless signals. The tower
does not itself transmit signals. The district court found that
the Communications Act preempts state law, and so the Johnsons
could not prevail on their state-law claim against Farmers as a
matter of law. The Johnsons therefore did not have a glimmer of
hope of success against Farmers in state court.
We agree that a finding of federal preemption would mean
that the Johnsons would have “no possibility” of success on
9
It is possible that Charleston-North Charleston MSA could
have completed a call from another wireless service provider,
but in that instance, it could not know that the call originated
from inside the prison. The Johnsons’ theory of liability
hinges on the Defendants’ awareness of an unreasonable risk of
contraband cell phone calls.
16
their state-law complaint against Farmers. Accordingly, we now
turn to the federal preemption question underlying this case.
In doing so, we conclude that the Communications Act preempts
the Johnsons’ claims against Farmers. Because Farmers was
fraudulently joined, the district court did not err in denying
the Johnsons’ motion to remand.
The Supremacy Clause of the Constitution provides, “the
Laws of the United States . . . shall be the supreme Law of the
Land; . . . any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
“Preemption fundamentally is a question of congressional intent,
and when Congress has made its intent known through explicit
statutory language, the courts’ task is an easy one.” English
v. Gen. Elec. Co., 496 U.S. 72, 79-80 (1990) (citation omitted).
Here, Congress made its intent known when in 1996 it
amended the Communications Act of 1934 to provide, “no State or
local government shall have any authority to regulate the entry
of or the rates charged by any commercial mobile service or any
private mobile service.” 47 U.S.C. § 332(c)(3)(A). The
Communications Act also grants the FCC “control . . . over all
the channels of radio transmission.” Id. § 301; see also
Farina, 625 F.3d at 105 (“The FCC’s jurisdiction extends to
wireless telephone service, and FCC authority over the technical
17
aspects of radio communications is ‘exclusive.’” (citations
omitted)).
We have acknowledged that in amending the Communications
Act, Congress preempted state laws that not only regulate market
entry, but also state laws that “obstruct or burden a wireless
service provider’s ability to provide a network of wireless
service coverage.” Pinney, 402 F.3d at 456 (citing Bastien v.
AT&T Wireless Servs., Inc., 205 F.3d 983, 987 (7th Cir. 2000)).
State law is taken here to include common-law tort duties.
Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008) (“‘[C]ommon-
law liability is ‘premised on the existence of a legal duty,’
and a tort judgment therefore establishes that the defendant has
violated a state-law obligation.”). 10 State common-law duties,
10
We emphasize that the Communications Act does not preempt
all claims that might give rise to an award of damages in the
wireless service context. In other words, the Communications
Act does not completely immunize wireless service providers from
all civil suits under state law. The D.C. Circuit held, for
example, that not all state laws having the effect of increasing
the cost of doing business constitute state regulation of
telecommunications. Cellular Telecomms. Indus. Ass’n v. F.C.C.,
168 F.3d 1332, 1336 (D.C. Cir. 1999). The FCC agrees. In re
Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, ¶¶ 33-34
(2000). Not all tort suits against wireless carriers are
prohibited by the Communications Act. Id. at ¶ 34 (“Such
litigation costs and awards are simply a cost of doing
business.”). In this case, however to find in the Johnsons’
favor, we would be compelled to articulate a common-law tort
duty that would have a real effect on the provision of wireless
service in South Carolina, something expressly prohibited by the
Communications Act.
18
such as the one that the Johnsons propose, that conflict with
federal laws or regulations, are therefore preempted. Gibbons
v. Ogden, 22 U.S. 1, 37-38 (1824).
In Pinney, we held that § 332 preempts state laws that
“obstruct or burden a wireless service provider’s ability to
provide a network of wireless service coverage.” Pinney, 402
F.3d at 456 (citing Bastien, 205 F.3d at 987). We find that the
Johnsons’ putative state-law duty on Farmers is consequently
preempted by the express language of the Communications Act. A
common-law tort duty on the part of Farmers would “obstruct or
burden a wireless service provider’s ability” to provide
coverage. Cell phone tower owners would be forced to actively
monitor wireless networks and prevent any calls, or perhaps only
calls initiated on contraband devices, coming from inside a
South Carolina prison, limiting the provision of wireless
service in those areas. Pinney, 402 F.3d at 456.
Similarly, finding a duty on the part of the wireless
service providers would override the FCC’s authority in granting
licenses to provide wireless service. The Communications Act
authorizes the FCC to “establish areas or zones to be served by”
wireless service providers. 47 U.S.C. § 303(h). Although it is
true that the Communications Act does not disturb state and
local authority to zone and regulate land use, a common-law tort
duty is not zoning or land use. See id. § 332(c)(7)(A)
19
(“[N]othing in this chapter shall limit or affect the authority
of a State or local government or instrumentality thereof over
decisions regarding the placement, construction, and
modification of personal wireless service facilities.”). As
legislative history makes clear, Congress intended for the
Communications Act to refrain from preempting local land use
regulations, not common-law tort duties. Murray v. Motorola,
Inc., 982 A.2d 764, 773-74 (D.C. 2009). Although the
Communications Act grants wide latitude to states and localities
to enact land use and zoning laws, a common-law tort duty simply
stretches § 332(c)(7)(A) too far. Instead, the Johnsons’ legal
theory would force cell phone tower owners to impede the FCC’s
authority in establishing wireless service areas.
In short, we find that the Communications Act clearly
preempts the Johnsons’ state-law tort claim against Farmers as a
matter of law. Consequently, the Johnsons do not have a
“glimmer of hope” of succeeding in state court on their claim
against Farmers. The parties are in complete diversity, and
consequently, the district court had jurisdiction over the
remaining Defendants.
III.
Having determined that the district court properly
exercised jurisdiction over the Johnsons’ claims, we next
20
consider whether it also correctly held that those claims failed
to state a claim as a matter of law. We review the district
court’s grant of the defendants’ motion to dismiss de novo. See
Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir.
2013).
As discussed below, we affirm the district court on three
grounds. First, the Communication Act’s express language
preempts the Johnsons’ claims. Second, the Johnsons’ claims are
barred by conflict preemption. Third and finally, the Johnsons’
claims are implausible. 11
A.
As we discussed above, the Communications Act provides for
a comprehensive federal scheme to ensure access to wireless
telecommunications services. Pinney, 402 F.3d at 457 (“Congress
enacted § 332 to ensure the availability of a nationwide network
of wireless service coverage, more specifically, to develop the
infrastructure necessary to provide wireless services.”).
Section 332(c)(3)(A) of the Communications Act provides, “no
State or local government shall have any authority to regulate
11
The district court also found that there is no state-law
duty under South Carolina law. We do not need to address the
state-law issues to resolve the case and so decline to do so
here.
21
the entry of or the rates charged by any commercial mobile
service or any private mobile service.” 47 U.S.C.
§ 332(c)(3)(A). We found in Pinney that § 332 preempts state
laws that “obstruct or burden a wireless service provider’s
ability to provide a network of wireless service coverage.” 402
F.3d at 456 (citation omitted). Consistent with our discussion
in Section II.C., supra, we find that the Johnsons’ putative
state-law duty on the part of the other Defendants is also
preempted by the Communications Act. A common-law tort duty
would obstruct or burden a wireless service provider’s ability
to provide coverage because wireless service providers would be
forced to actively monitor their networks and prevent any calls
coming from inside a South Carolina prison, limiting the
provision of wireless service in those areas.
B.
The district court also concluded that the Johnsons’ claim
is implicitly preempted as a matter of conflict preemption.
Conflict preemption applies to state law “when compliance with
both federal and state regulations is a physical impossibility,
or when state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”
Pinney, 402 F.3d at 457 (quoting Hillsborough Cnty. v. Automated
Med. Labs., Inc., 471 U.S. 707, 713 (1985)).
22
The Communications Act establishes a comprehensive federal
scheme for the provision of wireless service coverage. 12 47
U.S.C. § 332. The federal scheme’s purpose is to “ensure the
availability of a nationwide network of wireless service
coverage . . . [and] to develop the infrastructure necessary to
provide wireless services.” Pinney, 402 F.3d at 457. To
further this purpose, some (but not all) areas of state law are
preempted. Id. To ensure the availability of service coverage,
the Act prohibits a person from willfully interfering with
wireless signals without authorization from the FCC. 47 U.S.C.
§ 333. (“No person shall willfully or maliciously interfere with
or cause interference to any radio communications of any station
12
In Pinney we described the federal scheme as follows:
Thus, § 332(1) provides factors that the FCC
must consider in managing the spectrum used
for wireless services, 47 U.S.C. § 332(a);
(2) classifies wireless service providers
that provide wireless service to the public
for profit as “common carriers” (subjecting
them to numerous duties under the FCA), 47
U.S.C. § 332(c)(1)(A); (3) prevents states
from regulating “the entry of or the rates
charged by” wireless service providers, 47
U.S.C. § 332(c)(3)(A); and (4) limits in
certain respects the ability of states and
local zoning authorities to regulate the
“placement, construction, and modification”
of facilities that provide wireless service,
47 U.S.C. § 332(c)(7).
402 F.3d at 457.
23
licensed or authorized by or under this chapter or operated by
the United States Government.”).
The district court concluded that a state-law obligation to
block calls originating from contraband cell phones inside the
prison would necessarily conflict with § 333. The FCC has
repeatedly interpreted § 333 to prohibit any form of “jamming”
of wireless signals, even by prison authorities. In a recent
rulemaking, the FCC has undertaken to make it easier for prisons
to address the problem of contraband cell phones. 13 The FCC was
responding to a petition by the South Carolina Department of
Corrections and other states’ prison authorities, which
requested that it be given the power to jam signals inside
prisons. The FCC declared, “[T]he manufacture, importation,
marketing, sale, or operation of radio signal jamming devices
within the United States is prohibited, except for the sale to
or use by the Federal Government.” Id. at ¶ 19 (emphasis
added). The FCC is considering other means to address the
problem of contraband cell phones without allowing prison
authorities to jam wireless signals themselves, such as making
13
Notice of Proposed Rulemaking, Promoting Technological
Solutions to Combat Contraband Wireless Device Use in
Correctional Facilities, 28 FCC Rcd. 6603 (2013) (“Contraband
Wireless Device NPRM”), available at
http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0
502/FCC-13-58A1.pdf.
24
it easier for wireless service providers to remotely deactivate
contraband cell phones. Id. at ¶ 3. This method does not
involve jamming the wireless signals themselves. 14
The Johnsons argue that the prohibition against
interference does not apply if the wireless service provider is
interfering with its own signals. In support, they cite two
cases for the proposition that § 333 applies only to third
parties and not the actual service providers. United States v.
Gerritsen, 571 F.3d 1001 (9th Cir. 2009); United States v.
Baxter, 841 F. Supp. 2d 378 (D. Me. 2012). Although those cases
indeed addressed claims in which third parties interfered with
wireless service, they did not hold that § 333 applied only to
third parties.
Section 333 states that “no person” shall interfere with
“any radio communications.” 47 U.S.C. § 333. The Defendants
argue that “no person” includes first parties and therefore
prohibits self-interference. A more persuasive reading of this
section of the Communications Act is to read the entire sentence
together: no person shall interfere with any radio
communications, including his or her own. The use of the word
14
Notably, Congress has passed legislation making cell
phones contraband in federal prisons but has not permitted any
jamming of wireless signals. Cell Phone Contraband Act of 2010,
Pub. L. No. 111-225, 124 Stat. 2387 (2010) (codified at 18
U.S.C. § 1791).
25
“any” includes one’s own communications. If the statute
intended to exclude self-interference, the statute would state
“any other radio communications” rather than “any radio
communications.”
In sum, it would be impossible for the Defendants to
simultaneously comply with federal prohibitions on blocking
wireless signals and a putative state-law duty to block wireless
signals to and from certain cell phones inside the prison. This
is the very definition of conflict preemption. Compliance with
both a putative common-law duty and federal law would be a
“physical impossibility” and therefore the former is preempted
by the Communications Act. Fla. Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142-143 (1963).
C.
Finally, we affirm the district court’s finding that the
Johnsons’ claims would also fail due to the “speculative nature
of their allegations.” J.A. 369. In the district court’s view,
“the Johnsons’ argument suggests only a desire to conduct a
fishing expedition to determine if there is any factual basis
for asserting claims against any Defendants . . . . This is not
enough.” J.A. 370. Although we review rulings on motions to
dismiss de novo, accept all the factual allegations in the
complaint as true, and draw all reasonable inferences in the
26
Johnsons’ favor, the complaint must still meet applicable
pleading standards. Spaulding, 714 F.3d at 776. The Johnsons
have failed to allege sufficient facts to set forth a plausible
claim for relief; consequently, we affirm the district court.
“A complaint must be dismissed if it does not allege
‘enough facts to state a claim to relief that is plausible on
its face.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S.
544, 570 (2007)). A properly pleaded complaint must offer more
than “‘naked assertions’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(brackets omitted) (quoting Twombly, 550 U.S. at 557). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.In other words, a complaint must include “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.The Johnsons’ complaint contains the bare assertion that
“an inmate at the prison using a cellphone ordered a co-
conspirator outside of the prison to kill Captain Johnson.”
J.A. 23. The Johnsons have failed to offer any further factual
enhancement to support their claims against the Defendants. For
example, the Johnsons’ complaint does not identify the wireless
service provider who carried the alleged call or when the
alleged call occurred. Without more factual allegations, it is
27
impossible for a district court to assess the Johnsons’ claims.
See Twombly, 550 U.S. at 565 n.10 (noting that the defective
complaint “mentioned no specific time, place, or person involved
in” the alleged illegal activity); Kendall v. Visa U.S.A., Inc.,
518 F.3d 1042, 1048 (9th Cir. 2008) (complaint must “answer the
basic questions: who, did what, to whom (or with whom), where,
and when?”); see also Fed. R. Civ. P. 84 & App. Form 11
(providing a blank space for the “date” and “place” of the
injury in model complaint form for negligence). A wireless
service provider would likely be unable to determine whether it
carried the alleged call without more identifying information.
We acknowledge, however, that the recent conclusion of the
U.S. Attorney’s investigation into the attack may provide
additional information bolstering the Johnsons’ claims. The
Johnsons are free, if additional information supportive of one
or more non-preempted claims exists, to file a new lawsuit, as
the district court dismissed their complaint on this ground
without prejudice. As currently drafted, however, the complaint
resembles a prohibited fishing expedition rather than a properly
pleaded complaint. Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 8
(1st Cir. 2011).
28
IV.
For the foregoing reasons, the judgment is
AFFIRMED.
29