Pinney v. Nokia, Inc.

Reopen. must remand to the Dis- We . trict Court.5 NOKIA, INCORPORATED, Nokia a/k/a Phones, Incorporated, Mobile a/k/a Corporation; America, Nokia NEC In IV. corporated; Ericsson Com Wireless reasons, foregoing For the we will re- munications, Incorporated, Er a/k/a mand the case to the District for Court icsson, Incorporated; Sprint PCS proceedings consistent with our decision. Partnership, Sprint Limited a/k/a

PCS, Sprint Spectrum, LLP, a/k/a Sprint Spectrum; Audiovox a/k/a Corporation; Communications Nextel Communications, Incorporated, a/k/a Nextel Communications of Mid- Atlantic, Incorporated, Nextel a/k/a Partners, Incorporated, Nextel; a/k/a America, Corporation Matsushita Corporation; Philips Panasonic a/k/a Corpora Electronics North America Qualcomm tion; Incorporated; Sam Douglas PINNEY, M.D.; sung America, Incorporat J. Patricia S. Electronics

Colonell, individually ed, Samsung Electronics; Sanyo and on behalf of a/k/a similarly situated; America, all Incorporated, others Francis North a/k/a Farina, individually Sanyo Systems J. Corporation, on behalf Business similarly situated; all Sanyo those Group; Gar North America a/k/a Naquin; Leblanc; Sony rett Electronics, Incorporated; J. Ronald Ju AT & Kaufman; Rubenstein; dith A. Corporation, T; Asher T AT & Verizon a/k/a Crystall Gilliam; Mack; Maryland, Incorporated, Dimitri Veri a/k/a Riedy Gimpelson, individually zon, Wireless, formerly and on Verizon a/k/a similarly situated; Maryland, behalf of all others known as Bell Atlantic In Dahlgren, corporated; Communications, Sarah on behalf of herself Verizon similarly situated; Incorporated, formerly and all others Lin known as Bell Barrell; Blayne Minogue; da Corporation; Brian Atlantic Verizon Wire Barrett; Barrett; less, Nynex, Lane Diana David Bell Atlantic a/k/a a/k/a Plaintiffs-Appellants, Keller; Keller, Nynex, C. Marsha L. Mobile, Bell Atlantic In a/k/a corporated, Nynex Bell Atlantic a/k/a v remand, Inc., may (5th Cir.1991) 5. On the Court wish to consider 260 n. 10 equities argued by Sales, WRS here: the statute (quoting Specialty Northern Inc. run, ambiguity of limitations has (Bankr. Corp., INTV 57 B.R. n. order, February 14 the unlikelihood that WRS D.Or.1986)). hand, On the other Plaza ar knowingly would have $1.2 forfeited its mil- gues inapplicable 108 is to claims that claim, policy underlying lion 11 U.S.C. already subject were of suit. We leave gives two-year which debtors exten- these issues for the District Court in the first sion within which to commence an action on Nothing opinion instance. in the is intended claim, pre-petition which courts have con- preclude dismissing the District Court from " designed provide strued as extra time 'to comply the case because counsel failed to investigate pursue collection of claims for requirements with of the order to enter an " the benefit of the estate.’ United States of appearance on or before March Am. the Use Am. Bank v. C.I.T. Constr. Incorporated, corporation; Partnership, Mobile; Colorado Ver Cellco d/b/a formerly Diego, Incorpo Wireless, known as Bell Mobilnet of San GTE izon Mobile, formerly Nynex rated, corporation; a Delaware GTE Atlantic Mobile; Diego, LLC, Bell Atlantic Cin known as a California Wireless San formerly Wireless, LLC, known gular Liability; Limited Cellular Carriers Mobility, Incorporated, California, as BellSouth Association of California Wireless, Bell for Southwestern corporation; Holdings, AB a/k/a Cellular Bell merly known as Southwestern Cellular, LLC, An LA Los d/b/a d/b/a Cingu Systems, Incorporated; Mobile geles Telephone Company, Cellular Washington/Balti Wireless, lar a/k/a Defendants. Partnership; Limited

more Cellular No. 03-1433. Communications, Incorporated; SBC Group, Cellular Cellular One a/k/a Appeals, United States Court Corpora One; Wireless Voicestream Fourth Circuit.

tion; C.E.I., Incorporated, Com a/k/a Argued: Oct. 2004. Electronics, Com munications a/k/a Electronics, Incorporat munications Decided: March ed; Baltimore Business Communica

tions, Incorporated; Comcast/Metro Radiofone; Powertel, Incorpo

phone; Incorporated;

rated; PCS, Powertel

Powertel/Atlanta, Incorporated; Mit Communications, In

subishi Wireless Incorporated, Motorola,

corporated; corporation; Tele Cellular

Delaware Internet Associa

communications and corpora

tion, of Columbia a District

tion; Telecommunications Cellular

Industry Association; Telecommuni Association, Industry

cations a/k/a

TIA; Operating Cor Nextel Partners Defendants-Appellees,

poration, Communications;

Westinghouse South Telecom, Incorporated,

ern a/k/a 1-100; Linc; Does John

Southern Corpo Corporation; Panasonic

LGIC

ration; Samsung Company; Sa SDI Corporation; Sony Corporation;

nyo Communications, In

Planet Cellular L.L.C.;

corporated; Cellular Visitor Mobility; Kyocera

Bell Wire South Corporation; Worldcom

less MCI

Communications, Incorporated; U.S. Wireless, L.L.C., A cor Colorado

West Communications,

poration; U.S. West Allweiss, Lowe, R. Michael

ARGUED: Hauver, Hoffman, Stein, Allweiss & Louisiana, Orleans, L.L.P., Appel- for New Starr, & Kirkland Winston lants. Kenneth D.C., L.L.P., Appel- for Ellis, Washington, Smouse, BRIEF: H. Russell ON lees. Mintzer, E. Angelos, Glenn C.M. John P.C., D.C.; Isbister, Angelos, Washington, B. Ha- of Peter G. John Law Offices Howell, Walter, & Baltimore, H. Maryland; Tydings Rosenberg, Thomas rold M. Baltimore, L.L.P., Baltimore, Howell & Maryland, Maryland, Samsung for for Gately, Johnson, America, Inc., Samsung B. Terrence Electronics Appellants. Garrett a/k/a Slade, Ellis, Schleifman, Kirkland & Dee, Shook, Michael B. Electronics. Paul S. J. L.L.P., Illinois, Motorola, Bacon, L.L.P., D.C.; Hardy Washington, for Inc. & Chicago, Sexton, Moeller, Shook, Duffy, Mary Roper, Seamus C. Catherine J. Stan Michael D. Drinker, Reath, L.L.P., Bacon, L.L.P., Hardy City, Philadel- Biddle & & Kansas Mis- Wireless, souri, Pennsylvania, Cingular for for phia, Sprint Partnership, PCS Limited Inc., Communications, Inc. F. Sprint Spectrum; Sprint Spectrum, SBC Mark a/k/a Barba, L.L.C., Horning, Steptoe Thomas & Sprint M. PCS. Charles P. Goo- d/b/a D.C., dell, Johnson, Frederick, Goodell, Devries, Washington, for AT & T James A. PCS, Dann, Baltimore, LLC and Leech & AT T Corp., Maryland, & Wireless for Services, America, AT T Inc. Sanyo & Wireless John H. North Inc. North a/k/a Brooks, Beisner, O’Melveny Group, Sanyo Corporation, Sanyo Brian P. & America L.L.P., D.C., Meyers, Washington, Systems for Corporation. Business Steven M. Wireless, Pemberton, Partnership. Zager, Lackey, Verizon Célico Lance Robert Strain, Venable, Akin, Strauss, Feld, Baetjer Gump, Paul F. and How- Hauer & ard, L.L.P., Baltimore, L.L.P., Houston, Texas; Maryland; King Walter, M. Paul F. Hill, III, Venable, Howard, Baetjer L.L.P., Baltimore, and Tydings Rosenberg, L.L.P., Towson, Nokia, Inc., Maryland; Fugate Maryland, Jane for Nokia Mo- a/k/a Elder, Alston & Bird, Phones, Inc., Thorpe, Scott A. Corporation. bile and Nokia L.L.P., Atlanta, Georgia, Ray Aragon, Raymond Célico Part- M. B. Biagini, nership formerly McKenna, L.L.P., Bell Atlantic Long Aldridge, Mobile & Wash- d/b/a Nynex D.C., ington, Bell Atlantic Mobile Veri- for Electronics North Amer- d/b/a Wireless, Maryland, Schoon, zon Verizon Inc. ica Corporation. Eugene A. Ta- a/k/a Wireless, Verizon, Kelber, Austin, Verizon mar B. Brown & Sidley, Bell a/k/a f/k/a Inc., Wood, L.L.P., Atlantic-Maryland, Illinois, Commu- Chicago, Verizon for Voices- nications, Inc., Corpora- Bell Atlantic Corporation tream Wireless Voices- f/k/a a/k/a tion, Wireless, Wireless, Powertel, Inc., Bell Verizon Atlantic tream Powertel a/k/a Nynex, PCS, Inc., Nynex, Powertel/Atlanta, Bell Atlantic Inc. Patrick a/k/a a/k/a Mobile, Buckler, Nynex Inc. Atlantic R. Dudley, Bell Mo- T. Walter McGuire- f/k/a bile, Watson, Renner, woods, L.L.P., Baltimore, Inc. Thomas Curtis Maryland; Ed- Renner, D.C., Crane, Washington, Hanselman, Watson & for ward M. David L. Cingular Wireless, Skadden, Slate, Arps, Flom, L.L.C. Michael Esher Meagher & Yeatman, Yaggy, Jeffrey Illinois, Piper Chicago, M. Rud- for Nextel Communica- nick, L.L.P., Baltimore, Maryland, Mid-Atlantic, Inc., for Mo- tions of the Nextel of torola, York, Inc., Inc. Laduzinsky, Steven M. Scott A. New Corp. and Nextel South Kane, Mendoza, Hanfling, Laduzinsky Ulwick, Graham, P.A., & James P. Kramon & Ltd., Illinois; Green, Baltimore, Chicago, America, B. Maryland, Robert for NEC Irwin, Dexter, L.L.P., Towson, Citera, Green & Inc. A. Greenberg Francis & Trau- Maryland, P.C., rig, Illinois, for Cellular Telecommunica- Chicago, for Electronics Inc., Qualcomm tions and Incorporated. Internet Association. Michael Russell J. O’Brien, Wilson, Sultzer, H. Rogers, Jason P. El- Slovensky, Lawrence A. McKen- ser, Moskowitz, Dicker, na, L.L.P., Atlanta, Edelman & Long Aldridge, White & Plains, York; Steel, Wilson, New Georgia, Operating Corp. Laura N. for Partners Elser, Moskowitz, Dicker, Partners, Krause, Edelman & Nextel Inc. Paul D. Moskowitz, Louisiana, Steel, Wilson, Elser, Georgia, Maryland, courts of N. Laura Dicker, L.L.P., York, Washington, Pennsylvania. The plain- New Edleman & of Amer- sue Inc. D.C., Corporation tiffs Nokia and other entities for Matsushita “Nokia”) ica, Corporation, (collectively, Panasonic Sa- involved a/k/a America, Sanyo Inc. manufacture and sale of wireless tele- nyo North a/k/a Sanyo Corpora- phones. plaintiffs claim that wireless Group; North America The tion; Systems, Corpora- telephones emit an unsafe of radio Sanyo Business level D’An- Vishny, Freehling, frequency Paul radiation and that Nokia tion. Paul has Illinois, Pflaum, L.L.C., Chicago, cona & hidden this fact from Nokia consumers. Industry Associa- for Telecommunications removed the five cases various federal Kolman, Cohen, courts, R. tion. Mark H. Leslie and the Judicial Panel on Multidis- (JPML) Dickstein, Oshinsky, Shapiro, Litigation Morin & trict transferred the L.L.P., D.C., Washington, for Audiovox to the District cases United States Court (the Corp. Perry, Maryland L. Communications Charles for the District of district court) Kurth, L.L.P., Dallas, Texas, pretrial proceed- Andrews & for consolidated T. Group. ings. plain- One Matthew Co- The district court denied the for Cellular Getzendanner, Arnall, vell, B. Gold- to remand Kevin tiffs’ motion four the cases L.L.P., Atlanta, Georgia, Gregory, en & to state court and then dismissed all five Communications, ground plaintiffs’ Wireless cases on the Mitsubishi Reinhardt, preempted by Inc. Daniel Steven J. Hewit- state law claims are S. Sanders, L.L.P., Atlanta, son, Troutman Federal Act Communications Telecom, 1934(FCA), seq. 151 et Inc. Georgia, for Southern 47 U.S.C. Bernstein, Gregg plaintiffs appeal rulings. L. Denis J. Charles- both Because Martin, Bernstein, P.A., worth, Snyder subject jurisdiction & matter is lack- Babcock, cases, Baltimore, Maryland; ing L. in four of the we reverse the Charles Moran, McCown, Ryan denying T. James M. district court’s order the motion David Wirtz, Walker, L.L.P., Dallas, diversity Jackson to remand those cases. There is C. ease, Texas, jurisdiction for Ericsson Inc. Maureen Ellen over the fifth and be- L.L.C., Murphy, Murphy Murphy, & Ca- cause the law claims are not tonsville, Maryland, for Baltimore Busi- reverse the order dismiss- preempted, we Communications, ing Inc. that case. ness MICHAEL, Before LUTTIG and I. KISER, Judges, and Senior United Circuit telephone (commonly A called a Judge for the States District Western phone) actually containing a radio cell Virginia, sitting by designation. District power transmitter. When a wireless low by published Reversed and remanded on, telephone is turned it searches for Judge MICHAEL wrote the opinion. tower) (usually range. base station within joined. opinion, Judge which LUTTIG A a fixed transmitter con- base station is Judge dissenting wrote a Senior KISER equipment taining antennae and electronic opinion. that communicates with the transmitter If a telephone. a wireless wireless tele- OPINION range, a base station within phone finds MICHAEL, Judge: Circuit by transmit- telephone identifies itself Number ting includes five its Mobile Identification litigation This multidistrict (MIN), System Identification Code initially in the state its brought class actions 2003). (last it is updated July While (SID), Electronic Serial Number and its high that to lev (ESN). exposure well established permanent- a number The ESN is RF can cause adverse els of radiation telephone when it ly into the programmed effects, health there is no scientific consen and the MIN The SID is manufactured. exposure. of low level sus on the effects wireless tele- into the programmed are Commission The Federal Communications purchases a ser- phone a customer when (FCC) that requires all transmitters emit telephone is activated. plan vice and the by agen RF radiation to be authorized in- relays identifying The base station they or cy before are marketed sold. See ESN) (MIN, SID, and to the formation 2.801, §§ Pursu 47 C.F.R. 2.803 switching office telephone local mobile Policy ant to the National Environmental (MTSO), confirms that the tele- which seq., 4321 et which Act of U.S.C. customer. An assigned is to a valid phone requires agencies impact to consider the that computer a sophisticated MTSO is quality actions on the of the human their in a partic- the base stations controls all of environment, promulgated has FCC coordinating purpose for the ular area that limit the amount of RF radiation rules from wireless radio transmissions to and (includ FCC-regulated transmitters an MTSO confirms that telephones. Once ing telephones) may wireless emit. In re telephone assigned to valid a wireless Evaluating the Envtl. Guidelines Ef customer, assigns frequency the MTSO Radiation, Radiofrequency fects of may communicate. on which the user (In (1996) Rcd. re FCC receiving routing Base stations 1.1307, Guidelines); §§ see 47 C.F.R. telephones transmissions from wireless 1.1310,2.1091,2.1093. relatively range transmission have a small brought five class actions power low transmitters. they because have Nokia, against claiming, in state courts Accordingly, provide continuous wire- (1) tele- among things, other wireless telephone coverage less service over an RF phones emit an unsafe level of radia- area, numerous base stations extended (2) this, Nokia, knowing negli- tion and regions are di- must be built. Cities fraudulently endangered the gently and miles, cells, square ten typically vided into consuming public marketing wireless As a user containing each base station. telephones According without headsets. (and out one cell thus out of moves they plaintiffs, exposed to the were cell) range of the base station from biological risk of adverse effects cell, adjoining into an the MTSO hands the RF radiation emitted their wireless adjoin- signal off to the base station telephones they telephones when used the Tyson, ing cell. Marshall Brain & Jeff plaintiffs purport without headsets. The Work, at How Cell Phones represent telephone wireless users who com/cell-phone, http://www.howstuffworks. diagnosed have not been with brain- or (last January printable visited htm/ eye-related diseases and who were not 2005). they provided headsets when leased telephones Wireless emit a low level of bought telephones. their wireless Com- (RF) radiation, frequency radio a form of pensatory damages sought are in an electromagnetic energy, from their anten- buy amount sufficient to a headset for each they nae when communicate with base sta- one and to reim- class member who lacks already tions. See Cell Phone Facts: Consumer burse each class member who has Phones, bought For class members with on Wireless one. Information qa.html telephones headset- http://www.fda.gov/cellphones/ plaintiffs appeal The the district injunction sought to re- ment. an compatible, orders. them with tele- court’s provide Nokia to quire with a headset. that can be used phones II. punitive damages, also seek plaintiffs

The costs, attorneys’ fees. turnWe first to the district denying Pinney plaintiffs’ in five court’s order were filed

After these cases them, courts, consolidated motion to remand their four pursu- removed Nokia state ju to state court. Federal removal appro- § to the five eases ant to 28 U.S.C. may over state risdiction be exercised federal district courts. On October priate courts 31, 2001, the five court actions “of which the district JPML transferred jurisdic original con- of the States have Maryland of for United cases to the District 1441(a). original The pre-trial proceed- tion.” 28 U.S.C. or coordinated solidated 7, 2002, plaintiffs jurisdiction in of the district courts includes January ings. On plain- jurisdiction arising over “all civil actions the cases—those with lead four of laws, Farina, Gilliam, Constitution, under the or treaties of Pinney, tiffs named § 1331. (collectively, “Pinney plain- the United States.” 28 U.S.C. Gimpelson tiffs”) of Nokia’s removal of the propriety a motion to re- The consolidated —filed Pinney plaintiffs’ depends in court cases to the courts state mand their cases the claims under” fed they originated. plaintiffs “aris[e] on whether which (the Mulcahey not eral law. See v. Columbia Or “Naquin plaintiffs”) fifth did case (4th Co., 148, 151 ganic was federal join this motion because there Chems. Cir.1994). strictly construe our subject jurisdiction over their case We must matter jurisdiction removal “rais diversity citizenship. On June removal because based on of 21, 2002, significant Pin- federalism concerns.” Id. the district court denied the es final that a appears judgment on the “If it before ney plaintiffs’ motion to remand removed, not because it necessarily properly de- case was ground their claims original jurisdiction of a substantial was not within pend on the resolution courts, district the dis question. According to the district the United States it court, attack on trict court must remand to the state disguised the claims are a standards, Fran court from which it was removed.” RF radiation the FCC’s Tax Bd. v. Constr. Laborer’s require of the claims would chise Cal. resolution Trust, 1, 8, 103 S.Ct. validity on of those stan- Vacation U.S. court to rule (1983) (citing L.Ed.2d 420 dards. 1447(c)). U.S.C. denied, After remand was Nokia filed of whether the begin for failure We with issue consolidated motion to dismiss 12(b)(6), claim, Pinney claims arise under feder- plaintiffs’ to state see Fed.R.Civ.P. to the substantial federal pursuant On al law ground preemption. on the of federal 5, 2003, doctrine. then address granted question court We March the district their claims arise under federal the whether Nokia’s motion on the basis complete pursuant to the doctrine pre-empted by claims are law plaintiffs’ ultimately conclude that preemption. court We specifically, More the district FCA. Pinney plaintiffs do sought by the the claims concluded that the relief of either federal law reason in all conflicts with arise under five cases Accordingly, the district court national uni- doctrine. Congress’s goal achieving claims, and jurisdiction lacked over these formity in RF radiation emission levels Pinney denying the court erred equip- all wireless telecommunications 2841) (internal 13, 27-28, quota- motion to remand consolidated plaintiffs’ omitted). marks and citations Under their cases to state court. tion doctrine, question the substantial federal A. seeking “a defendant to remove case plaintiffs cause determining plain whether a which state law creates the (1) law, we arises under federal two elements: tiffs claim of action must establish rule, complaint well-pleaded apply plaintiffs right to relief necessari- ... “ordinarily law, which holds that courts federal ly depends question on of plaintiffs [proper (2) than the look no further question that the of federal law is determining ly complaint in pleaded] Dixon, If substantial.” 369 F.3d at 816. of federal whether a lawsuit raises issues defendant fails to establish either of creating federal-question capable law of elements, these the claim does not arise jurisdiction 1331.” under 28 U.S.C. pursuant under federal law to the substan- (4th 1156, Sweeney, 1165 Custer v. 89 F.3d doctrine, question tial federal and removal Cir.1996). Thus, examining in the com justified cannot be under this doctrine. is to “discern whether plaint, step our first Id. law creates the cause of federal state A plaintiffs right to relief necessar 151; Mulcahey, action.” 29 F.3d at see ily depends question on a of federal law Inc., Coburg Dairy, also Dixon v. 369 F.3d ... appears disputed when “it that some (4th Cir.2004) (“The 811, majority vast 816 necessary question of federal law is a ele cre of lawsuits ‘arise under the law that ment of well-pleaded one of the state ”) (quoting the cause of action.’ Am. ates Bd., claims.” Franchise Tax 463 at U.S. Co., Layne v. & Bowler Well Works Co. 13, plaintiff 103 S.Ct. 2841. If a can estab 257, 260, 585, 241 L.Ed. U.S. 36 S.Ct. 60 lish, without the resolution of an issue of (1916)). plain If federal law creates a 987 law, all federal of the essential elements claim, proper. is Mul tiffs then removal claim, his state law then the claim does not rule, cahey, general 29 at 151. The F.3d necessarily depend question on a of federal course, that a the “master plaintiff is is 13-14, 2841; law. id. at See 103 S.Ct. see claim,” may and he “avoid federal Dixon, (“[I]f at also 817

jurisdiction by on state exclusive reliance can plaintiff support his claim with even drafting complaint. Caterpillar law” in his theory an one does not call for inter Williams, 386, 392, Inc. v. 482 U.S. law, pretation of claim not federal his does (1987). Here, 2425, 96 L.Ed.2d 318 S.Ct. purposes ‘arise under’ federal law for it law undisputed that state creates 1331.”). principle This is illustrated Pinney plaintiffs, claims asserted There, Franchise Tax Board. the Su inquiry. but not end our this does We preme Court found no substantial federal must also determine whether these cases question agency tax at when California fall within the small class of “cases tempted levy to enforce a on funds held in complaint which a establishes well-pleaded an taxpayers trust several under right ... to relief neces plaintiffs plan. at ERISA-covered benefit 463 U.S. sarily of a depends on resolution substan 13-14, 103 claim law, S.Ct. 2841. The did tial in that federal question'of federal necessarily depend on a resolution of fed necessary law is a element of one of the ... eral law because “California law estab well-pleaded claims.” Christianson v. conditions, 800, refer Indus. set of without Operating Corp., lished] Colt 486 U.S. (1988) 808, law, 2166, 100 levy a tax 108 S.Ct. L.Ed.2d 811 ence to federal under which Bd., enforced; (quoting may Franchise Tax 463 U.S. be federal law bec[ame] risk. to an turer to eliminate the See Banks way of a defense only by relevant Ams., Inc., 732, law, 264 Ga. ICI S.E.2d entirely by state created obligation (1994); 671, 673-74 Nissan Motor Co. v. agency] ha[d] only then if [the Nave, 90, 102, Md.App. 740 A.2d for relief under a valid claim made out Co., (1999); & Decker Mfg. Voss v. Black 2841. “[I]t Id. at state law.” 398, 450 59 N.Y.2d 463 N.Y.S.2d law,” the not well-settled Court has been N.E.2d Penn- 208-09 Under ed, may not be removed “that a case sylvania product law a suffers from a de- on of a federal court the basis if sign component defect it lacks a neces- defense, preemp including the defense sary to make it safe for its intended use. tion, anticipated if the defense is even Petroll, See Harsh v. 840 A.2d 416-17 if complaint, and even both (Pa.2003). only is the admit that the defense parties in case.” Id. at truly at issue the question Second, Pinney plaintiffs al 14, 103 S.Ct. lege strictly that Nokia is liable for its failure to warn about the adverse health in the claims We now examine telephones. risks associated with wireless Pinney plain complaints filed brought These claims are under the laws that parenthetically We note tiffs. York, Georgia, Maryland, New and these to district court allowed laws, According to Pennsylvania. these complaints after it denied amend their or a seller knows or when a manufacturer Because amend their motion to remand. danger of should have known of the latent removal, we look at ment occurred after consuming product a and fails to warn rather than the original complaints manufacturer or seller is strict public, the in complaints determining wheth amended injuries danger for caused ly liable Pullman proper. removal was See Co. er in product is used a foreseeable while Jenkins, 537, 347, 534, 305 U.S. Harley-Davidson Hunt v. manner. See (1939). Pinney plaintiffs 83 L.Ed. 334 Co., 44, 15, Ga.App. Motor 147 248 S.E.2d original in their com assert seven claims Zenobia, Owens-Illinois, (1978); 16 Inc. v. that is They allege first Nokia plaints. (1992); 420, 633, A.2d 639 325 Md. 601 defectively a de strictly placing liable for Co., & Rubber Goodyear Rastelli v. Tire the stream of com signed product into 373, 289, 591 79 N.Y.2d 582 N.Y.S.2d brought These claims are under merce. 222, (1992); v. Berwind N.E.2d 225 Davis York, Maryland, New Georgia, the laws of 186, Pa. 690 A.2d Corp., 547 all Pennsylvania. the laws of and Under (and states, a manufacturer some four seller) Third, allege that Pinney plaintiffs strictly selling liable for a times a violating various state Nokia is liable defectively designed product that causes statutes. These Maryland, protection and consumer injury. Georgia, personal of Ma- brought are under the laws product a suf claims New York assess whether York, Pennsylvania, ryland, and by using the New design from a defect fers plain- statutes allow a this test where the relevant risk-utility balancing test. Under injuries or sus- tiff recover for losses whether the to a fact-finder must determine decep- engages a merchant reasonably choosing tained when acted manufacturer Ann., trade See Md.Code given practices. tive product design, particular a II, 13-408; risk, § N.Y. Bus. Law Gen. of the the Com. magnitude and probability 349(h) (McKinney); Pa. Cons. § particular in its Law product usefulness generally § condition, 201-9.2. These statutes on the manufac- Stat. and the burden (1) (3) safe, require plaintiff prove public telephones to either that wireless materially suppressing any the defendant made false or sug scientific evidence misleading product about its gesting statements telephones are not deceived, (4) tendency safe, or had the to de- in failing provide warnings (2) ceive, consumers, or the defendant potential about the health risks from fail respect (5) failed to state a material fact with headset, ing to use a in failing and deceived, product, to its and this failure provide headsets and instructions encour deceive, tendency had the consumers. aging brought their use. These claims are Ann., II, § See Md.Code Com. Law 13- Georgia Maryland. under the laws of and (9)(0; 301(1), (2)(i), (3), N.Y. Bus. Gen. To make out a negligence, claim for 350-a(l); Law Pa. 201- Cons.Stat. plaintiff must following establish the ele (xxi). 2(4)(v), (vii), (ix), (1) plaintiff ments: the defendant owed the (2) duty, the defendant breached that Fourth, Pinney plaintiffs (3) duty, plaintiff injury, suffered an allege implied that Nokia breached an war (4) there awas causal connection be ranty merchantability by selling injury. tween the breach and the See distributing unreasonably dangerous wire Cross, Johnson v. Am. Nat’l Red 276 Ga. telephones. brought less These claims are (2003); 578 S.E.2d Hem under Georgia, Maryland, the laws of New LLP, mings v. Pelham Wood 375 Md. York, Pennsylvania. To make out a (2003). 443, 826 A.2d 451 A manufacturer claim implied warranty, for breach of this generally a duty has to exercise reasonable plaintiff a product must establish that a is care in manufacturing, designing, and sell not of quality merchantable and that he ing products its “so as to make prod the injury product suffered an as a result. A reasonably ucts safe for intended or fore quality is not of it merchantable when is Batten, Chrysler seeable uses.” Corp. v. ordinary not fit for purposes the for which 723, 208, (1994) 264 Ga. 450 S.E.2d 211 Melton, it is L used. See Wilson v. J & (citation omitted); Eagle-Picher see also Inc., 1, 47, Ga.App. 270 606 S.E.2d 49 n. 1 Indus., Balbos, 179, Inc. v. 326 Md. 604 (2004); Ford Motor v.Co. Gen. Acc. Ins. (1992). 445, A.2d 454 n. 9 Co., 321, 362, 365 Md. 779 A.2d 370 n. 13 (2001); Co., Denny v. Ford Motor 87 Sixth, Pinney plaintiffs the al 248, 250, N.Y.2d 639 N.Y.S.2d 662 N.E.2d lege that Nokia in engaged fraud misin 730, (1995); Phillips 736 v. Light Cricket forming and misleading public the as to ers, (Pa.Su- 365, 852 A.2d 370-71 safety the of telephones. wireless These per.Ct.2004). In determining whether a brought claims are under the laws of Geor product is of quality, merchantable the gia, York, Maryland, New Pennsylva and fact-finder “expectations focuses on the for fraud, nia. To make out a claim for performance the product when used plaintiff must establish the following ele usual, customary, reasonably (1) ments: the defendant made a false foreseeable Denny, manners.” 639 (2) representation, the defendant knew the 250, N.Y.S.2d 662 at N.E.2d representation recklessly was false or was Fifth, (3) Pinney plaintiffs al indifferent to its truth falsity, (1) lege negligent that Nokia in failing was defendant representation made the with (4) to conduct adequate appropriate scien the intent to plaintiff, defraud the tific research on the plaintiff justifiably adverse health effects relied on the rep false exposure (5) RF resentation, radiation from wireless plaintiff suffered (2) telephones, in misrepresenting damages to the aas result. See Rhone v. Bol-

445 (2004); a neces of federal law 712, question [that] 22 den, Ga.App. 608 S.E.2d 270 Chevrolet, Seney, sary [any] well-pleaded 292 Md. of the Inc. v. element Martens Bd., 534, (1982); P. Chimento 463 328, 537 claims.” Franchise Tax 439 A.2d Rico, 208 13, de Puerto Popular Banco The district v. 103 S.Ct. 2841. Co. U.S. 157, 158 385, 617 N.Y.S.2d however, A.D.2d court, determined that these Ernst, 538 v. Gibbs (N.Y.App.Div.1994); resolution of a sub depend cases on the (1994). 882, Con- 193, 889 647 A.2d Pa. question stantial federal because fact, intent to a material with cealment dispute” ... into “put directly claims deceive, representation the false satisfies sufficiency of federal RF validity and Destito, 250 Paul v. of fraud. See element wireless tele radiation standards 739, (2001); 631, 744 Ga.App. 550 S.E.2d Radio See In Re Wireless Tel. phones. 247, 843 Md.App. 155 Stamper, Hoffman Litig., Emissions Prods. Liab. Frequency 153, (2004); Corp. v. Nasaba A.2d 186 (In (D.Md.2002) 474, re F.Supp.2d 488 216 N.Y. Realty Corp., 287 Harfred I). objective of The ultimate Wireless (1942); Joseph De v. Zam N.E.2d according to the district complaints, these A.2d Pa. belli court, attack the lack of a headset “is to

Seventh, safety RF Pinney plaintiffs under the federal requirement civil con engaged Although the court acknowl allege that Nokia rules.” Id. wireless tele complaints to market unsafe contain no alle spiracy edged that the means, wrongful by improper and phones RF radiation gations attacking the federal so, and, plain doing both defrauded standards, it could ulti it believed that the health to warn them of tiffs and failed only by passing the case mately resolve These using telephones. risks of validity on the judgment the laws of Geor brought under claims therefore deter The court standards. civil Maryland. In a claim for gia and justified removal was under mined that plaintiff must establish conspiracy question doctrine. Id. substantial federal concert, defendants, in acting or more two 488, 491-92.1 at a tort. constituting in engaged conduct of the are assessed on the basis Damages by not district court erred conduct, not on the tortious defendants’ by inquiry that its was limited recognizing engage in such agreement their

basis of rule. It should well-pleaded complaint Lomax, v. 266 Ga. See Miller conduct. disputed a only considered whether have 232, (2004); 93, Alle App. 596 S.E.2d an ele of federal law is essential question co, Weinberg Harry Inc. v. & Jeanette well-pleaded of one of ment Inc., Found., 639 A.2d Md.App. Bd., Tax 463 U.S. claims. See Franchise (1994). 173, 176-77 The district court at 103 S.Ct. 2841. in inquiry and this restricted beyond went thoroughly examined We have (1) that Nokia would anticipated effect in Pinney plaintiffs by the claims asserted the state defense that raise the affirmative thing is clear: complaints, and one their by the FCA and preempted law claims depend of each of the claims the elements (2) and RF radiation standards federal questions of state only on the resolution called would be “substantial, Pinney plaintiffs disputed is no law. There sufficiency the FCC standard.” argument lenge as makes the same 1. The dissent explain a federal the district court—that substantial we in the text at 459. As Post question [the exists because "the effect follows, argument cannot be sustained. this allegations” Pinney plaintiffs’] is to "chal- upon to rebut that defense. The cases consider Nokia’s arguments. Nokia ar decided, concluded, gues that an only could be the court issue of federal law must be Pinney plaintiffs resolved for the by resolving whether the claims are estab necessary lish the elements for two of by and the RF preempted the FCA points their claims. Nokia so, first to the if radiation standards. Even that is claim of liability design strict due to a preemption defense “that a federal raises above, supra defect. As at discussed see question inadequate is to confer federal 442-43, plaintiff one element a must estab Pharms., jurisdiction.” Merrell Dow Inc. product lish is that suffered from a 804, 808, Thompson, 478 U.S. 106 S.Ct. design A design defect. defect is estab Again, 92 L.Ed.2d 650 “a by proving lished product is un may case not be removed to federal court reasonably dangerous, by as determined defense, including on the basis of a federal risk-utility argues standard. Nokia preemption,” defense of even if the RF FCC’s radiation standards complaint begs the assertion of the de- “duty” regard establish the relevant with fense, only and even if “the defense is the RF radiation emissions from wireless question truly at issue the case.” Fran- telephones, and therefore the unreason Bd., chise Tax 463 U.S. ably dangerous inquiry depends on the question. resolution of a federal Br. for The thrust of the claims is that Nokia Appellees at 26. Nokia’s use of the term violated state manufacturing law “duty” misplaced is because the term is knew, selling product that it or should commonly more employed negligence in a known, have dangerous was context, not a liability strict In context. adequately warning dangers. As event, any the nub argument of Nokia’s is Board, was the case Franchise Tax (or that a telephone’s wireless compliance elements, state law establishes set noncompliance) with RF the federal radia law, without reference to federal that the tion standards determines whether plaintiffs must establish order to a make telephone is unreasonably dangerous. No out “valid for relief.” claim[s] 463 U.S. at kia is wrong. Under the Georgia, laws of 13, 103 S.Ct. 2841. Federal law becomes York, Maryland, and compliance New with defense, only only relevant as a after the federal RF radiation only standards is the Pinney plaintiffs have made out the one factor in assessing whether a elements of their state law claims. this telephone unreasonably dangerous un situation, Supreme as the Court has ob- risk-utility der the Doyle standard. See served, say “[t]he most one can that a is Volkswagenwerk Aktiengesellschaft, 267 question of lurking federal law is in the 574, 518, (1997); Ga. 481 S.E.2d Beatty 521 background.” Bank, Gully v. First Nat’l Prods., 726, v. Trailmaster 330 Md. 625 109, 117, 96, 299 U.S. 81 L.Ed. 70 1005, (1993); A.2d 1014 Denny, 639 lurking question The of federal 250, 735-36; 662 N.Y.S.2d N.E.2d at Sher is, course, law of the affirmative defense of Sons, Inc., man v. M. Lowenstein & 28 preemption, but that does not make the 922, A.D.2d 282 N.Y.S.2d 143-44 claims into arising ones under federal law. (N.Y.App.Div.1967). And because Penn sylvania rejects importation law the B. negligence concepts into liability its strict It doctrine, becomes even clearer that compliance with RF federal the Pinney the plaintiffs’ claims do not contain radiation standards is not relevant in de a disputed question of federal law when we termining strictly whether Nokia is liable by made Nokia that prod prove a statements selling law for Pennsylvania under See design false, a defect. that the suffers from must uct that were demonstrate Div., Coffing Hoist Lewis v. Duff-Norton content of federal wireless “substantive Co., 593-94 A.2d Pa. inconsistent with regulations is emissions (1987) compliance product (holding that alleged characterizations of those [Nokia’s] is irrelevant industry standards with Id. This is a mischaracteri- regulations.” on de liability case defective based strict Pinney of the fraud claims. The zation Thus, tele if Nokia’s wireless even sign). that Nokia fraudu- allege do not RF radia comply with the federal phones the RF radiation lently misrepresented standards, could Pinney plaintiffs tion the Rather, they allege that Nokia standards. element design the defective still establish by misrepresenting statements made false liability claim. Con their strict telephones general safety the of wireless telephones do versely, if Nokia’s wireless failing or to dis- by misrepresenting RF radiation federal comply not with the biological posed by wireless close the risks standards, not Pinney plaintiffs would the falsity of these To the telephones. prove de the defective automatically establish statements, must es- Pinney plaintiffs the sign element. RF emissions radiation tablish Pinney plain- that the argues also Nokia telephones create a health from wireless disputed federal- to establish tiffs “need nothing has to do with risk. This out their fraud to make propositions” law regula- content substantive 27. To make Appellees Br. for at claims. sum, no substantial In there is tions. fraud, plaintiff must estab- a claim of out necessary law that is a question of federal elements, lish, that the defen- among other lia- Pinney plaintiffs’ strict element of the Nokia as- statement. made a false dants defect) fraud claims.2 bility (design in order to plaintiffs, that the Pinney serts necessary simply element of law” is arguing jurisdiction, the dis- for 2. removal Bd., at many allega- Tax 463 U.S. factual claims. points to one fraud Franchise sent support Pinney plaintiffs in S.Ct. 2841. tions made Pinney plaintiffs of their fraud claims. allega- general on a The dissent also relies engaged in fraud on an allege that Nokia sup- Pinney plaintiffs’ complaint to tion in the tele- claimed that wireless when it occasion jurisdiction argument port removal its safely phones [FCC] safe and "fall within allegation that Nokia "ob- exists. This standards,” "deceitfully the fact omitted but over the Ameri- and exercised control tain[ed] it does not FCC had that the declared ('ANSI') Institute can National Standards 'expert agency’ for evaluat- consider itself developing safety responsible for Committee (emphasis in ing effects.” J.A. 142 health emitting devices.” J.A. RFR standards for dissent, this alle- original). According to the proposals regarding RF radia- 140. ANSI's question expertise of gation "call[s] into adopted in FCC generally were tion standards the case. at That is not FCC.” Post Guidelines, 11 FCC rulemaking. re See In safety statement made establish that the To 15123-25, Accord- WL 926565. Red. false, necessary element was Nokia dissent, allegation about No- ing to the fraud, only prove Pinney plaintiffs need ANSI means influence over kia’s the FCC’s state- the failure to that disclose rule-making attacking ... plaintiffs "are a material fact concealment of ment was the developing [its process the FCC used in that safety false in statement was that Nokia's Post at 460. The radiation] RF standards.” plaintiffs light the FCC's of statement. however, dissent, explain how does not exper- any FCC prove lack of not have to will raises a substantial allegation about ANSI in order to the RF radiation area tise in necessary a that is question of federal law false statements that Nokia made establish plaintiffs’ law any one telephones. element of A safety of wireless about the "substantial, claims. disputed question of federal get problem, gardless To around this Nokia ad of whether Nokia’s sufficient con- theory a con vances new “sufficient theory nection is at a preemption bottom —the regulatory nection” to a federal scheme argument, reject we it because it is not theory why Pinney plaintiffs’ decision, supported by our Ormet and it is —for pursuant claims are removable the sub Supreme inconsistent with prece- Court question stantial federal doctrine. Nokia dent. Corp. relies on our decision in Ormet establish, Ormet does not or even (4th Co., Ohio Power F.3d 799 Cir. support, Nokia’s sufficient connection theo 1996), to that a argue plaintiffs “where ry. In Ormet one of the elements of the complaint sufficiently state law is connect- plaintiffs state commercial law claim con regulatory regime to a ed federal as to disputed tained a question of federal law: Congress expressed which has a need for plaintiff element, for the to establish the it implementation interpreta- uniform (as had to show that it an was owner tion, that connection provide can basis Act) defined the federal Air Clean jurisdiction question for federal no even if permits. tradeable emission allowance explicitly claim pled.” federal is Br. for at F.3d 807. Nokia relies on our state Appellees suggest 25. Nokia does not ment, the resolution of a “[w]here federal standard for determining when connec- could, in a issue state-law cause of action tion is sufficient to removal proper render because of different approaches and incon theory, under its but it nonetheless asserts sistency, stability undermine the and effi that a sufficient connection exists in the ciency of a statutory regime, federal present Nokia, According cases. there uniformity need for becomes a substantial comprehensive is a regu- federal scheme to interest, federal justifying the exercise of telecommunications, late wireless and Con- jurisdiction by federal courts.” Id. at 807 gress regulators has to federal delegated (citation omitted). Nokia claims this lan authority

the exclusive all over technical guage proposition stands for the that a aspects of wireless telecommunications. A (or, words, nexus in Nokia’s a “sufficient sufficient connection exists between the connection”) between a claim for regulatory telecommunications regime and relief and a federal regulatory scheme is Pinney plaintiffs’ claims, says, Nokia sufficient to jurisdiction. establish removal because the premised claims are on the Nokia’s quoted reliance on the statement amount of RF radiation that emits from from completely Ormet is off the mark wireless telephones, a technical aspect of because the specifically statement address telephones regulated by is es the question issue whether a federal with, the FCC. To begin Nokia’s sufficient enough justify is substantial removal theory, applied connection as to these jurisdiction, claims, the threshold to, issue of is similar if not indistinguishable from, whether a question federal must argument be re Pinney plain- plaintiff solved order for tiffs’ to establish claims are removable under the sub- a necessary stantial element of question federal his claim. No doctrine because they preempted where Ormet did we ever suggest the FCA and RF Nokia, federal radiation some “sufficient connection” standards. between a course, couching argument regulatory regime avoids its in federal and a state preemption claim enough juris terms because it to establish knows removal short, the affirmative defense of diction. In preemption can- Ormet did not slacken not serve as a basis for any way removal under the the principle that the substantial question substantial federal question doctrine. Re- applies only doctrine

449 defense, pre [federal “As a preemption. is an of federal law issue disputed a when of appear on the face a of the does not emption] at least one of element essential therefore, and, complaint, well-pleaded state claims. plaintiffs’ to federal authorize removal does not aside, sufficient connec- Nokia’s Ormet (citation 63, 107 S.Ct. 1542 Id. at court.” Supreme with theory is inconsistent tion omitted). contrast, of com In the doctrine reasoning, Nokia’s By precedent. Court ordinary an “converts plete preemption can establish Pinney plaintiffs if the even stat complaint law into one state common claims of their necessary elements the claim,” 65, id. at 107 S.Ct. a ing federal law, of federal resolving question a without 1542, federal claim is deemed to under the are still removable the cases Dar complaint. of on the face appear be- doctrine question federal substantial Inc., Communications, cangelo v. Verizon the federal between a cause of connection Cir.2002). (4th 181, To re 187 292 telecommunica- F.3d wireless regulating scheme complete of state on the basis Pinney plaintiffs’ move action an tions and enough. The Su- must establish That is not a defendant preemption, claims. that for quite clear has been federal Court has a “discernible preme plaintiff that the under substantial proper to be “Congress [the removal intended and that [claim]” doctrine, abili- a question federal remedy to be the exclusive federal claim] of necessary elements ty to establish wrong.” King v. Marriott alleged for rise or fall on claims must his state law Cir.2003). (4th Int'l, Inc., 425 F.3d federal law. question a of of resolution of these assessing In the removal cases Dow, 478 U.S. Merrell See complete preemption, our on the basis of (“[T]he a fed- presence of mere S.Ct. 3229 the FCA estab- inquiry is whether basic does cause of action in a eral issue state claim consumers lishes the exclusive jurisdiction.”). question federal not confer telephones. injury by wireless alleging sum, cases be of these cannot removal of §§ that and 207 argues Nokia on the basis substantial sustained claim for exclusive provide FCA question federal doctrine. pri- 207 allows

Pinney plaintiffs. Section carriers to sue common parties vate C. resulting from a common damages recover these Having determined that under obligations its carrier’s breach pursu under federal law do not cases arise argues § 207. Nokia U.S.C. FCA. question doc ant to the substantial claim exclusive Pinney plaintiffs’ that the un trine, they arise consider whether we 201(b), Nokia violated allege through the doctrine of law der federal carriers common imposes on which complete Under complete preemption. charges, practices, obligation “[a]ll under fed claim arises preemption classifications, for and in regulations completely “so Congress eral law when communica- radio] [wire with connection any civil area particular preempt [s] service, just and reasonable.” shall be tion group of select complaint raising th[e] 201(b). Nokia ar- Specifically, 47 U.S.C. necessarily federal character.” claims is dangerous the sale gues Taylor, 481 U.S. Ins. Metro. Co. Life in con- “practice constitutes a telephones 63-64, 95 L.Ed.2d Nokia is with” wireless service. nection course, is, difference There provides the that the FCA wrong saying complete preemp the doctrine between claim. of federal exclusive defense tion and the affirmative 450 off, § provide any

First 207 ceptive advertising does billing by wireless against claim a number of the defendants providers service in provision of wire in these cases. 201 Sections and 207 allow telephone less service. See Marcus v. recovery only against common carriers. (2d Cir.1998). Corp., AT&T 138 F.3d 54 “ Under the FCA carriers’ are ‘common Further, even if we broadly were to con that provide entities must [transmission] § urges, strue 201 as Nokia there is sim public service to the without [s] discrimina- ply no Congress evidence that intended tion regulated by and are heavily §§ 201 and 207 to be the exclusive claim Application FCC.” In re the United of for alleging injury from wireless States an Authorizing Order the Rov- for telephones. Nokia identify any fails to Communications, ing Interception Oral of in legislative evidence or statute histo (9th Cir.2003) 349 F.3d 1137 n. 9 ry that Congress §§ intended 201 and 207 (citations omitted); see also 47 U.S.C. to preempt completely state law claims 153(10). § In the wireless telecommunica- that are based on a pro wireless service arena, tions person engaged in “[a] promotion vider’s sale and of wireless tele provision of’ wireless service is treated as phones. single authority The to which common carrier. See 47 U.S.C. Nokia cites anis FCC claiming statement 332(c)(1)(A). § complaints their that individual states permit should not be Pinney plaintiffs groups name two of de- ted to requirements add additional to the providers fendants: of wireless service standards imposes the FCC for cellular (that also market and distribute wireless (cit systems. See Br. for Appellees at 36 telephones) and manufacturers of wireless ing In re An into Inquiry the Use of telephones. As to the group, second the Bands MHz 870-890 MHz 825-845 plaintiffs allege that these defendants “en- Cellular Sys.; Communications for gaged manufacture, in design, market- Amendment Parts 2 and 22 the Com of of ing, See, and sale of’ telephones. wireless mission’s Rules Relative to Cellular Com e.g., J.A. 122-127. There are no allega- munication Sys., 89 F.C.C.2d 1982 WL tions that these manufacturer-defendants (1982)). This statement is not evi engaged are in providing any wireless ser- congressional intent, dence of and we ac vice, and we therefore conclude that these it weight. cord no defendants cannot be treated as common result, they carriers. As a cannot be sued The FCA also a savings contains clause: §§ under 201 and 207. “Nothing contained in this chapter shall in any way abridge or alter the remedies now (cer- As to the first group defendants existing statute, at common law tain but providers), wireless service Nokia provisions chapter this addi does not any authority cite to sup- that tion to such § ports the remedies.” U.S.C. proposition §§ 201 and 207 presence savings of a provide clause wireless counsels telephone users with a against a against finding claim providers Congress wireless intended service sweep their role in aside all marketing and claims in a distributing particu Indeed, lar telephones. area. interpretation An least two circuits have § 201 that recognized would construe selling other contexts that dangerous precludes wireless telephones as a such a “prac- finding. See Smith v. tice in (11th connection Corp., with” wireless service GTE Cir. 2001) would be dubious at “practice A (concluding best. 414 counsels connection with” wireless against service does not determination the FCA com even include tortious conduct such as pletely de- preempts telecommunications cus- that the district court erred argument tiffs’ a telecommunica- against claims tamers’ to dismiss taking up in Nokia’s motion conduct fraudulent provider’s tions service They first contend the dismiss- their case. equip- related telephones and leasing in there is no al be vacated because Marcus, (concluding should ment); F.3d at 54 other subject jurisdiction over the counsels matter clause savings § 414’s cases) (the Pinney plaintiffs’ com- four cases that the FCA against a determination with their case. that were consolidated custom- wireless service preempts pletely if argue that the pro- Naquin plaintiffs The service against a wireless claims ers’ in to failing not erred district court had deceptive provider’s on the based vider jurisdiction it lacked over recognize that advertising). Because false billing and Pinney plaintiffs, only the the cases of the Congress intend- there is no evidence remained, and case would have Naquin reme- the exclusive provide the FCA to ed not have motion to dismiss would Pinney Nokia’s those of the claims like dy for over due to lack of venue been considered there is evidence and because plaintiffs, According to the remaining case. the lone preserve to Congress intended the district court’s error Naquin plaintiffs, in asserted as the ones law claims such to procedural right the denied them cases, these claims also conclude that we these or the district court for the JPML through petition the federal law not arise under do to the transferor of their case Because retransfer preemption. complete doctrine court, States District Court not arise the United claims do Pinney plaintiffs’ the Finally, District of Louisiana. law, lacked the Eastern court the district under federal dis- argue that the them, Naquin plaintiffs im- the removal making over jurisdiction the not have considered trict court should proper. it had been motion to dismiss because III. to prior transferor court by denied the transfer. the district court denied After their motion to remand

Pinney plaintiffs’ argu no merit to the There is court, all it dismissed to state four cases Naquin plaintiffs’ venue over ment that cases, brought including the one five im Maryland was District of case ground that plaintiffs, on the Naquin jurisdic of federal to the lack proper due by the FCA. preempted claims are cases. other four consolidated tion over the subject court lacked the district Because (and con authorizing transfer statute four cases jurisdiction over the matter actions, solidation) of multidistrict the dis Pinney plaintiffs, brought that al a venue statute § U.S.C. dismiss them. power had no trict court plaintiffs override lows the JPML earlier, district However, noted as we factors are when three choice of forum over the diversity jurisdiction court has (1) ques more common “one or present: See Naquin plaintiffs. brought by the case dis pending different tions of fact 1332(a). must therefore We 28 U.S.C. (2) “the tricts,” a transfer would serve granting court’s order the district review witnesses,” and parties convenience of the the claims motion to dismiss Nokia’s (3) just and “promote would a transfer plaintiffs. Naquin actions.” 28 of [the] conduct efficient 1407(a); also In re Vernitron see U.S.C. A. (J.P.M.L. F.Supp. Litig., 462 Secs. 1978) (“Nor venue policies can the behind of the the substance Before we address con- designed operate provisions dismissal, Naquin plain- consider the we single text of independent prevail, Naquin plaintiffs actions petitioned could have context, in a multidistrict over remand, the Panel’s directly JPML for a or they statutory weigh mandate to the interests could requested have the district of all the and all the defendants suggest court a remand to the JPML. litigation and to consider multidistrict as a 7.6(c)(i), (ii); J.P.M.L. Rule see also In re law.”). light whole in purposes Roberts, (3d Cir.1999) Transfer, course, may only be ordered (noting transferred, that once a case is purpose the of “coordinated or consoli- JPML, only the and not the transferee pretrial proceedings.” dated 28 U.S.C. court, authority has the to remand the 1407(a). court). case to the transferor Naquin The plaintiffs never moved the JPML for a cases, JPML, present the after remand nor asked the district court to noting presence questions of common suggest remand to the JPML. Because fact, found that ... in “[centralization these failed to raise the remand Maryland District of [would] serve the issue with either the JPML or the district parties convenience of the and witnesses court, we consider the issue waived for promote just and [would] and efficient purposes of appeal. this See Holland v. conduct litigation, of the accordingly while Big 597, River Corp., Minerals 181 F.3d being necessary in duplica- order to avoid (4th Cir.1999) 605 (“Generally, issues that discovery, prevent tion of pre- inconsistent were not raised the district court will rulings, trial and conserve the resources of appeal.”). be addressed on counsel, parties, judicia- their and the ry.” In Re Frequency Wireless Tel. Radio Finally, Naquin plaintiffs ar Emissions Prods. Liab. Litig., 170 gue that the district court’s dismissal order (J.P.M.L.2001) (order F.Supp.2d 1356 con- should be vacated Judge because Lemelle solidating transferring the cases to the of the Eastern District of Louisiana had Maryland). District of Because these find- denied, prior transfer, motions to dis ings satisfied prerequisites for trans- by miss filed some of the defendants. The fer, and because proceedings were still Naquin plaintiffs claim that a transferee pretrial stage, venue in the District may court prior reconsider a order of a Maryland proper. was Naquin The (1) transferor only court when: there is an plaintiffs essentially seek to add an addi- (2) law, intervening change in the there is requirement tional subject ju- matter (material) newly evidence, discovered or risdiction must exist over all transferred (3) necessary reconsideration is to correct and consolidated cases for venue to be a clear error of prevent law manifest proper the transferee court. There is injustice. The two cases relied on no basis for requirement this in either the Naquin plaintiffs do not support such a multidistrict litigation statute or the case constricted view of a transferee court’s law. authority. cases, In each of the Microbix Naquin plaintiffs argue BioWhittaker, next Biosys., Inc., Inc. v. 184 they were denied procedural 434, their F.Supp.2d (D.Md.2000), 436 and Pot right request Potter, (D.Md. remand to the 550, Eastern ter v. 199 F.R.D. District of 2001), Louisiana as a result of the the district court ruling was on a district in finding subject court’s error motion for reconsideration of its own or jurisdiction matter over the brought cases der. The rules of constraint urged by the Pinney plaintiffs. disagree. We At Naquin plaintiffs make sense when a dis any point in the district court proceedings, trict court is asked to reconsider its own state law claims Naquin plaintiffs’ otherwise, there er the then it “Were order. by the FCA. Under preempted practice, to motions no conclusion would be a state law that “inter- Clause Supremacy than nothing more becoming motion each with, contrary federal law is or is to” feres end potentially in a installment the latest Bland, Free v. U.S. invalid. the re exhaust that would serial less 1089, 8 L.Ed.2d 180 the court'—not parties sources which Con- theories under There are three Potter, 199 patience.” its to mention First, under state gress preempts law. is not constraint at 553. This same F.R.D. Congress expressly preemption express litiga in the multidistrict justified always law. preempt its intent declares context, a need for there is where tion Svcs., County, Blasting Inc. Wilkes S. cases. of consolidated treatment consistent Cir.2002) (4th (citing 288 F.3d & v. Allied Steel Shipping Co. Astarte See Med. County v. Automated Hillsborough Cir.1985) (5th Svc., Export 713, Labs., Inc., 707, 105 471 S.Ct. U.S. and (“The power has the court transferee (1985)). Second, 2371, un- L.Ed.2d 714 85 any modify or rescind obligation to the impliedly Congress preemption der field case in the transferred in effect orders law so “federal state law when preempts incorrect.”); Degu it which concludes field as to occupies legislative thoroughly 1301, Inc., Biotech., F.Supp. 928 LXR lis v. that Con- the inference make reasonable (“A (S.D.N.Y.1996) court transferee 1309 supple- the states to left no room for gress the thus has litigation in a multidistrict Inc., Liggett Group, Cipollone it.” ment en interlocutory orders modify power to 2608, 504, 516, 120 112 S.Ct. 505 U.S. to prior court by the transferor tered (1992) (internal quotation 407 L.Ed.2d 1407.”) (cita § under 28 U.S.C. transfer omitted). Third, un- citations marks and Lemelle, in omitted). Here, Judge tion impliedly Congress preemption der conflict dismiss, denied to the denying motions “actually con- law it state when preempts ac explicitly and prejudice without them 471 Hillsborough, law.” flicts with federal pre issue of federal knowledged that the 713, must 2371. We at 105 S.Ct. U.S. in the later could revisited emption be Congress purpose that “the remember sum, did the district court In litigation. every pre- in touchstone is the ultimate Nokia’s motion considering not err Lohr, Medtronic, Inc. v. case.” emption case. Naquin the dismiss 2240, 135 470, 485, 116 S.Ct. 518 U.S. (internal (1996) quotation 700 L.Ed.2d B. omitted). Further, and citations marks complaint Supremacy the amended under their “[consideration assumption allege both with basic Naquin plaintiffs state Clause starts displace remedy Congress did not intend the same claims and seek federal Louisiana, 451 Maryland v. wire headsets for law.” Pinney plaintiffs, as the 2114, 68 L.Ed.2d 101 S.Ct. U.S. wheth- now consider telephones.3 We less renders disclose telephones. This failure to plain- Naquin their claims 3. For federal for Magnu- express warranties violated allege has the manufacturers' tiffs that Nokia Act, Improvement misleading, 15 the amended Warranty telephones son-Moss wireless they allege specifically, ap- § 2310. More court alleges. U.S.C. district complaint implied warranty of that Nokia breached plaintiffs’ Naquin peared to dismiss the failing purpose by particular for a fitness preemption entirely complaint on amended decep- engaging provide headsets are also though claims grounds, even failing practices to disclose trade tive alleged. wireless RF radiation from harmful effects of (1981) (citation omitted). pre- This cy emissions” if comply the facilities with sumption against preemption particular- is RF FCC’s radiation standards. “ ly strong Congress legislates when ‘in 332(c)(7)(B)(iv). U.S.C. This section ap- field which traditionally the States have plies only to “personal wireless service fa- ” occupied,’ safety.4 such as health and cilities,” a term defined in circular fashion Medtronic, 518 U.S. at 116 S.Ct. 2240 as provision “facilities for the personal (quoting Rice v. Corp., Santa Fe Elevator services.” U.S.C. 218, 230, 331 U.S. 91 L.Ed. 332(c)(7)(C)(ii). The statute does not (1947)). define the “facility.” term “facilities” or determine,

We must therefore as a matter impression, of first whether a wireless telephone a “facility” pur- constitutes argues Nokia Naquin 332(c)(7)(B)(iv). poses §of We conclude plaintiffs’ expressly claims are preempted that it does not. provisions two of the FCA. The first provision appears 332(c)(7), §in which is “If ‘statutory language “[preservation

aimed of local zoning unambiguous and authority” statutory over scheme is regarding “decisions consistent,’ coherent placement, construction, inquiry our and modification ends.” personal Boyd, Alexander S. v. wireless service facilities.” 47 (4th 332(c)(7)(A). 1373, Cir.1997) § 1383 (quoting U.S.C. Nokia asserts that Robin Co., 337, the son v. expressly 342, claims are Shell Oil 519 preempted by U.S. 117 332(e)(7)(B)(iv), 843, (1997)). § which S.Ct. 136 L.Ed.2d general limits the 808 “The authority plainness of local ambiguity bodies as or statutory follows: “No of lan State or local government guage or by is determined instrumental reference to the ity may thereof regulate language itself, placement, the specific the context construction, and personal modification of which language used, the is and the broad wireless service facilities on the basis of er context of the statute as a whole.” Rob inson, environmental effects of frequen- radio 341, 519 U.S. at 117 S.Ct. 843. Al- 4. The district court decided presump- ty that the in the wireless telecommunications area. against tion preemption apply See, does not here e.g., 332(c)(3)(A) § 47 U.S.C. (providing Naquin plaintiffs' because the claims relate to may regulate that entry states not "the of or telecommunications, where, wireless an area charged by” rates providers, wireless service " court, according to the ‘there has a been they may but regulate "other terms and ” history significant presence.’ of service); conditions” of wireless 47 U.S.C. re Frequency Wireless Tel. Radio Prods. Liab. 332(c)(7) § (providing authority that state to 452, Litig., F.Supp.2d (D.Md.2003) 248 regulate construction, "placement, and Locke, (quoting 89, United States v. 529 U.S. personal modification of wireless service fa- 108, (2000)). 146 L.Ed.2d 69 preserved except specific cilities” is cir- Supreme In Locke the Court concluded that cumstances). telephones While wireless must Washington’s the State of regula- oil tanker specifications meet the FCC’s and be author- tions were presumption not entitled to the by sold, they ized the FCC before can be see against preemption regulations because the 2.803, § provisions C.F.R. these do not governed national and international maritime provide remedy a injured someone a commerce, long regulated an area by Con- defective telephone. wireless presump- "The gress. 529 U.S. at 120 S.Ct. 1135. The against preemption tion stronger is even district court’s reliance misplaced on Locke is remedies, against preemption because there of like is not the tort pres- same federal recoveries, ence in the remedy wireless when no federal telecommunications area exists.” Co., as is there in the area Cyanamid of maritime Abbot v. commerce. Am. States (4th Cir.1988) (citation continue to have omitted). considerable authori- devices, such excludes interpretation in This used as “facility” though completely that are telephones, defined, as wireless when 332(c)(7)(B)(iv) not is § to land. no have attachment its use and portable of contexts broader specific term in which the a context that wire broader considered, plain it becomes supports the inter- facility. The dictio also “facility” a is used is not telephone less (as a “something not include as term does “facility” that the pretation nary defines below, machinery, plumbing) As we discuss telephones. hospital, wireless constructed, installed, or established built, enacted Congress at see infra or function particular a availability some of perform § 332 to ensure entire end.” particular some or service serve facilitate of network wireless nationwide Dictio International New objective, Third a this Webster’s with coverage. Consistent dictionary defini If the nary least, should, very part be facility here, facility would be a (a tion was used or an base station the infrastructure installed, constructed, or “built, something provides wireless MTSO, example) wireless personal provide telephone, established” A coverage. wireless service include arguably might This service. service a wireless however, only accesses in continue our telephone. We coverage; wireless network provider’s specific however, and examine quiry, underly- part not itself is telephone “facili the term which statutory context spe- Because both ing infrastructure. entitled, 332(c)(7) is Section is used. ty” “facili- use of term cific context authority” zoning of local “Preservation 332(c)(7) context and the broader §in ties” rule, general as the provides, a wire- (and reveal that of 332 purpose) af limit shall or “nothing statute] [in facility under telephone is less gov or local of a authority State fect relating 332(e)(7)(B)(iv), claims state tort over instrumentality thereof ernment sale of wireless manufacture to the con placement, regarding the decisions preempted expressly are not telephones personal struction, modification 332(c)(7)(B)(iv). § 47 U.S.C. facilities.” service wireless that argues next Nokia to 332(c)(7)(A). goes on The section § the Na- 332(c)(3)(A) preempts expressly § rule, and general to limitations provide pro This section claims. quin plaintiffs’ a balance to strike attempts doing in so from government or local a state hibits regulating interests states’ between the rates or the entry of “the regulating in government’s the federal use and land ser any commercial mobile charged of development facilitating terest “other regulate to vice,” it allows but Omni See telephone service. wireless mobile commercial and conditions terms Enters., L.P. point Communications 332(c)(3)(A). No § 47 U.S.C. services.” 240, 242-43 Township, Newtown seek Naquin plaintiffs that the argues kia Cir.2000); v. Omni (3rd Amherst Town of speci technical regulate law to to state use Enters., Inc., 173 Communications point this, No telephones; for wireless fications Cir.1999). (1st Because F.3d the com entry into would hinder says, kia 332(c)(7) authority with the deals § market because service mobile mercial use, con we and land zoning over states provid service wireless requires FCC “fa term Congress intended clude only FCC- using they are certify that ers object, such or a structure cility” to mean Nokia Because equipment. authorized telephone a mobile station as a base dealing licensing provisions to the cites (MTSO), that falls within switching office services communications authority. personal with use zoning or land the states’ (PCS), a specific type of commercial mo to entry into the PCS market because service, bile we understand argu Nokia’s wireless telephones are only used to ac- ment to assert that state regulation of a cess provider’s wireless service network telephone specifications wireless consti of coverage; telephones themselves do tutes a entry barrier to provide PCS provide the actual coverage. It s r .5 true that providers wireless service com- monly market wireless telephones in con- 332(c)(3)(A)

§While is unclear as junction with wireless packages, service to precisely what constitutes a barrier to and the wireless telephones entry market, they sell into the PCS we conclude comply must with sought by that the relief Naquin plain RF radiation (a tiffs requirement) standards. § headset is not such See 47 C.F.R. a 24.52. Never- with, begin theless, barrier. To the PCS market is a wireless provider’s service a market for wireless service. Wireless choice to bundle service packages and providers service use base stations and telephones does not mean headset MTSOs to create a network of coverage, a requirement would affect ability its to en- network that telephone wireless gen users ter into the wireless service market or to erally pay a fee to access. The li FCC provide a network wireless service cov- portions censes spectrum the radio erage. Furthermore, notwithstanding No- providers wireless service they so can pro assertion, kia’s we find nothing the reg- vide coverage, PCS see 47 C.F.R. requires ulations that a wireless service 24.1(a), (b), and one of the main require provider to certify, as a condition for ob- grant ments for the of a license is that the taining a provide PCS, license to that the licensee must construct enough base sta telephones used within its cover- provide tions to coverage to the area for age area with comply RF FCC’s radi- which it receives license. C.F.R. ation standards. This gen- certification is 24.103, §§ 24.203. Accordingly, in order erally undertaken the manufacturer of for state law to constitute barrier telephones when it requests equip- entry, must, it minimum, at a obstruct or ment authorization. See 47 C.F.R. burden a wireless service provider’s ability 24.51(b); §§ 24.52. Because relief provide a network of wireless service sought by Naquin plaintiffs would not See, coverage. e.g., Bastien v. AT&T be a barrier for wireless providers service Svcs., Inc., (7th Wireless 205 F.3d 983 seeking to enter market, the PCS Cir.2000) (concluding that an action 332(c)(3)(A) does not expressly preempt brought under law to challenge the the claims of Naquin plaintiffs. the number of base stations in coverage area constitutes a barrier to entry and pro is 332(c)(3)(A)). by § 2.

hibited A requirement headset for We .wireless also hold Naquin that the telephones would not constitute a plaintiffs’ barrier claims are preempted not under 5. basically There are competing Work, two modes of Cell http://electronics.hows- Phones at communications, wireless cellular services (last tuffworks.com/cell-phone.htm/printable Note, and Tuesly, PCS. J. Malcom My 2005). Not in visited Jan. "As for demand cellu- Backyard: Siting Wireless Communica- outgrown lar service has the available radio of Facilities, tions 51 Fed. spectrum L.J. Comm. signals, used for cellular the wire- systems operate Cellular PCS, in the 834- industry less has turned to which uti- range, MHz to 894-MHz systems and PCS digital technology lizes triples capaci- that the operate in the 1850-MHz ty to 1990-MHz of systems." traditional Tuesly, cellular range. Tyson, Marshall Brain & supra Jeff How at 88. objective. Congress enacted an such and preemption of conflict the doctrines availability of a nation- ensure the above, § 332 a state to As noted preemption. field coverage, service of wireless wide network pre by conflict aside set can be statute infrastruc- develop the to specifically, more fed both compliance with “when emption ser- wireless necessary provide to ture physical is a regulations state eral and 332(1) that Thus, factors provides § as vices. law stands or when impossibility, managing the must consider the and ex FCC accomplishment the to an obstacle services, 47 used for wireless spectrum objectives and purposes full ecution (2) 332(a); ser- wireless § classifies at U.S.C. Hillsborough, 471 U.S. Congress.” of service wireless provide that (internal providers vice quotation 105 S.Ct. carri- “common omitted). as public profit the for to Again, citations marks and duties to numerous (subjecting them ers” pre against strong presumption there 332(c)(1)(A); § FCA), 47 U.S.C. under the reg government federal when the emption “the (3) regulating from prevents states the traditionally left to areas ulates in charged by” rates wireless entry or the Med of safety. health and states, as such 332(c)(3)(A); § 47 U.S.C. providers, service tronic, 518 U.S. (4) ability respects limits certain court concluded The district to zoning authorities and local of states preempted claims plaintiffs’ Naquin construction, and “placement, regulate the to as an obstacle cases stand their because provide of facilities modification” achieving national objectives of “Congress’ 332(c)(7). service, 47 U.S.C. wireless telecommunications uniformity in wireless a balance between striking services congres § 332 infer do not from We services of wireless proliferation achieving preemptive objective of sional any public from protect to the need wire for RF radiation standards national re exposure.” RF of harmful effects ad First, § not 332 does telephones. less Emissions Frequency Radio Tel. Wireless telephones, wireless subject of dress 452, 463 F.Supp.2d Litig., 248 Prods. Liab. issue of specific the more let alone (D.Md.2003). that the Reasoning from RF radiation amount permissible a head- impose essentially seeking were radi The FCC’s RF telephones. wireless RF radiation or a stricter requirement set telephones for standards ation standard, concluded court the district a man pursuant promulgated were go forward would cases to allowing FCA, but §in date contained Congress authority regulatory usurp the Environ National to the pursuant rather agencies expert entrusted agen that all Act’s mandate Policy mental Id. these issues. already confronted had impact the environmental cies assess on 332 of relied court The district FCC, action For actions. their ob- congressional sweeping to find a FCA RF that emit authorizing transmitters was used equipment all ensuring that jective of Evaluat In re Guidelines radiation. telecommunica- with wireless in connection Radiofrequency Envt’l ing the Effects RF national subject to exclusive tions be 15123, 15125 Radiation, Rcd. 11 FCC of have the effect standards that radiation any pro of absence complete subject. on the regulation precluding telephones addressing wireless vision I, 216 In re Wireless (citing at 464 Id. § evi finding against a counsels 483-87). F.Supp.2d achieving of goal congressional dences stan RF radiation national preemptive court erred district that the conclude We telephones. for wireless dards of no evidence provides the FCA because Second, pursuing objective 601(c)(1) its of en- section of the Telecommunica- suring availability of a nationwide net- tions Act of 1996. This Act added 47 work of wireless service coverage, Con- 332(c)(7), § U.S.C. preempts which some gress has very been careful preempt of the authority states’ regulate expressly only law, certain areas of state (not of location base stations wireless tele- preserving the remainder regula- for state phones); clause, savings however, pro- 332(c)(3)(A) tion. example, § For prohib- vides that the Act “shall not be construed its states from regulating entry “the of or modify, impair, Federal, or supersede charged by” rates wireless pro- service State, or local law expressly unless pro- so viders, but explicitly provides that states ” vided .... Telecommunications Act of may regulate still “the other terms and 104-104, Pub.L. 601(c)(1), § No. conditions of commercial mobile service.” Stat. savings These clauses coun- 332(c)(3)(A). § 332(c)(7) U.S.C. §And against any sel broad construction of the preserves good measure of the states’ goals 332(c)(7) § of 332 and that would authority over “place- decisions regarding an implicit create with conflict state tort ment, construction, and modification law. personal wireless service facilities.” 47 332(c)(7)(A). U.S.C. Consistent with Having determined that the pro- FCA this conscious and careful effort to carve vides no evidence of a congressional objec- out the areas of state laws that it wants to tive to preemptive ensure national RF ra- preempt, Congress has specifically allowed diation standards for wireless telephones, for preemptive national RF radiation stan- we next examine whether the sought relief only personal dards wireless service Naquin plaintiffs would stand as an 332(c)(7)(B)(iv) facilities. Section provides obstacle to Congress’ goal actual of estab- that state and local zoning may authorities lishing a nationwide network of wireless not “regulate placement, construction, telephone service coverage. We conclude personal modification of wireless ser- that it would not. It is difficult to under- vice facilities” on the basis of RF emissions (the stand how a requirement headset spe- long as as the comply facilities with the cific sought) relief would affect the estab- FCC’s RF radiation standards. spec- This lishment a nationwide wireless service ificity as to the preemptive of fed- nature network or the availability of wireless ser- eral RF radiation standards for personal vice coverage. Wireless providers service wireless service weighs facilities against a generally provide wireless service finding cover- that Congress an implicit has goal age through a network of making base preemptive stations the RF radiation standards for types all other coordinated MTSOs. A wireless wire- equipment, telephone telecommunications less including purchases user a service wireless telephones. plan from a wireless provider, service provider assigns the user a MIN and a Third, there applicable are two savings SID, which allow the user to access this clauses. There is the general savings network of base FCA, clause of stations and MTSOs. which provides that While telephones “[njothing contained in access the net- chapter this shall work, in any way they part are not abridge alter the infrastruc- remedies ture; now existing at accordingly, common by statute, law or requirement headset but provisions of this would not chapter are in stand as an obstacle to Con- addition to such gress’s remedies.” goal U.S.C. of achieving nationwide cover- § 414. And there is savings clause in age. the ma- Apparently, standards. the argument that FCC reject Nokia’s

Finally, we prove can plaintiffs that the believes jority preempt- are claims plaintiffs’ Naquin the claims case of all seven facie prima their As preemption. of field the basis on ed standards the FCC reference to indicates, without the FCA discussion previous our in wire- emissions RF radiation regulating leg- occup[y][the] thoroughly “so not does that proving without telephones and less telecommunica- wireless [of field islative inval- and insufficient those standards are the inference to make reasonable as tions] not are plaintiffs The disagree. I id. for the states no left room Congress that The FCC in a vacuum. trying this case Cipollone, U.S. it.” supplement to uniform, regula- nationwide has enacted no There is evidence tele- to pertaining wireless tory scheme state law that intended Congress that thorough of a is the result which by phones the Na- claims, those asserted such as The process. rule-making complex and swept aside. be quin plaintiffs, believes the rules reflect what FCC final IV. between balance proper the will maintain commu- promoting wireless the interest reasons, reverse we foregoing the For the country and throughout the nication the con- denying order court’s the district safety the health protecting interest by the made to remand motion solidated not be plaintiffs The will all Gilliam, of consumers. Farina, Pinney, in the plaintiffs proving these standards. ignore able to Because federal eases. Gimpelson claim, the for each facie case their prima not does exist jurisdiction subject matter unreason- prove the will have to plaintiffs cases, return them we these four over by emitted the RF radiation ableness to the state court for remand the district The telephones. wireless FCC-compliant We also they originated. in which courts thus have to establish will plaintiffs dismiss- order the district court’s reverse It is are insufficient. the standards FCC preempt- case as plaintiffs’ Naquin the ing a fed- to invalidate that a suit well-settled is remanded That case by the FCA. ed federal law. under regulation arises eral proceedings. further court for district the Corp., Sprint See Cahnmann AND REMANDED REVERSED case, Cir.1998). (7th the In this 484, 488 a mat- non is validity vel FCC standards’ KISER, Judge, District Senior words very the proof plaintiffs’ ter of dissenting: to attack purport complaint which because, district court like the I dissent thinly-disguised This regulations. FCC well-reasoned well-researched in its stan- validity of the FCC attack on re- cannot be I the case opinion, believe question. raises a substantial dards RF FCC’s proving solved without high too are standards emission radiation standards the FCC attack plaintiffs The This con- consuming public. protect chal- First, plaintiffs ways. in three plain- reading of the stems from clusion FCC standard. sufficiency of the lenge any from defense complaint tiffs’ that the defendants’ allege plaintiffs —not The may assert. defendants comply with telephones, which pro- standard, give adequate do not FCC reviews some majority opinion Although RF radiation. from tection seven claims elements detail what stan- the FCC indicted have not that none and concludes proved be must of their name, effect dard on whether dependent claims allegations. comply with telephones the wireless 460

Second, plaintiffs the challenge the ex- The majority finds that this case fails pertise plaintiffs The allege FCC. raise substantial question federal be- cause it they defendants were dishonest does not rise or fall when on the resolu- question tion of a public stated to the of federal law. In phones sup- “cell fall conclusion, port of this majority the safety points within the standards the [FCC].” ¶ holding out the Supreme the Court that Plaintiffs arrive at the conclusion presence the “mere of a federal issue in a that the above statement is false because state cause of action does not confer feder- the defendants “omitted the fact that the question jurisdiction.” al Merrell Dow FCC had declared it does not consider Pharmaceuticals, Inc. Thompson, v. ‘expert itself the agency’ evaluating 804, 813, U.S. 92 L.Ed.2d effects,” health though even the re- FCC Dow, The in situation Merrell experts evaluating effects, lied on in health however, inapposite is to the one in this one of which was the FDA. See Cellular Dow, case. In Merrell plaintiffs the were FCC, Phone v. 205 F.3d Taskforce supporting Food, the Federal Drug, and (2d Cir.2000). allegation This incorpo- Cosmetic Act claiming a violation of by rated in plaintiffs’ reference all of the Here, that act was negligence. plain- the claims but is particularly pertinent tiffs are seeking to completely undo the (Fraud) (Fraud Count VI and Count VII FCC standard. Claims with the potential Concealment). by allegations These form for severely limiting eliminating a feder- a part plaintiffs’ factual basis on which al regulatory scheme raise a much more these two counts are based. These are substantial question federal than those plaintiffs facts prove must along any with merely seek to inure to the benefit of alleged other misrepresentations to sustain such a hand, scheme. On the other I find allegations the complaint. the There- this very case similar to our holding fore, plaintiffs call question into Corp. Ormet Ormet, v. Ohio Power Co. In expertise of the FCC and the sufficiency of plaintiffs claim was couched in tradi- its standards. tional commercial litigation language, but Third, plaintiffs question proce- we held that plaintiffs because the had to dure which the FCC developed the make reference to the Air Clean Act to regulations. Specifically, define one of plaintiffs the terms of the contract challenge the data there was a on which sufficient the FCC re- nexus to the Clean Air Act support lied. In question juris- federal rule-making process, the FCC Co., diction. Ormet part Corp. relied in on Ohio Power standards of the Ameri- (4th Cir.1996). can National same Standards Institute logic applies (“ANSI”). here. Although the reg- FCC Id. allege Plaintiffs ulation must be dealt plaintiffs with defendants “obtain[ed] and exercise[d] negative manner, inadequacy its is a control over the [ANSI] Committee re- plaintiffs fact that prove. must pro- This sponsible for developing safety standards vides a sufficient nexus to support federal ¶ for RFR emitting devices.” 71. The question jurisdiction. plaintiffs are therefore attacking the rule- making process that the FCC used in de- Moreover, the uniformity need for in a veloping these standards. Because regulatory federal heightens scheme making a direct upon attack importance of the question. validity and sufficiency Ormet, of the FCC we held that “[w]here the resolu- regulations, their claims arise under feder- tion of a federal issue in a state-law cause al law. could, of action because of ap- different inconsistency, undermine proaches SALDARRIAGA; Luz Apolinar Perafan a federal statuto- efficiency of stability and Carmona; Me uniformity Adrianna Velasquez be- for the need regime, ry justi- federal interest Perafan Velasquez; Mauricio a substantial nesses comes by federal jurisdiction of the exercise fying Petitioners, Velasquez, v. Hunter’s (citing Martin Id. courts.” v. Wheat.) 347-48, (1 304, Lessee, 14 U.S. (1816)). Here, are not Attorney GONZALES,

L.Ed. R. Alberto may under- which a claim merely raising General, Respondent. through regulatory scheme a federal mine No. 04-1182. they rather interpretations; inconsistent successful, which, mil if raising claims Appeals, of Court United States feder- invalidation complete in the result Fourth Circuit. presents This standards. regulatory al question. Argued: federal Feb. substantial by Jus- the call repeated This Court has 29, 2005. Decided: March dis- pragmatic “principled, Cardozo tice question determining tinctions” Transmission Gas

jurisdiction. Columbia (4th Drain,

Corp. v.

Cir.1999). Cardo- words Justice something of

zo, is needed “[w]hat judgment accommodation

common-sense charac- situations which kaleidoscopic causa- in its treatment the law

terizes picks the which process ... a selective

tion lays out web causes

substantial Gully (quoting Id. aside.” other ones Bank, 109, 117- 299 U.S. National First (1936)). Al- L.Ed. our commitment affirmed

though we have words, majority Justice Cardozo’s principles to the adhere

today does not should words. We

espoused these ques- lacking federal case as this

dismiss plain- simply because jurisdiction

tion law in state claims cloaked filed have

tiffs Instead, use common we should

language. claims plaintiffs’ recognize

sense regulatory a federal implicate

directly to undermine and threaten

scheme the district affirm I would scheme.

same jurisdic- question of federal finding

court’s

tion.

Case Details

Case Name: Pinney v. Nokia, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 28, 2005

Citation: 402 F.3d 430

Docket Number: 03-1433

Court Abbreviation: 4th Cir.