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Tort/Negligence — Shooting Victim’s Cellphone Suit Dismissed

Deborah Elkins//April 3, 2015//

Tort/Negligence — Shooting Victim’s Cellphone Suit Dismissed

Deborah Elkins//April 3, 2015//

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Johnson v. American Towers LLC (Lawyers Weekly No. 15-01-0293, 29 pp.) (Floyd, J.) No. 13-1872, March 25, 2015; USDC at Columbia, S.C. (Currie, J.) 4th Cir.

Holding: A South Carolina prison guard who was shot in his home allegedly on an order from an inmate using a contraband cellphone cannot sue cellphone service providers and owners of cellphone towers to recover for his injuries; the 4th Circuit affirms dismissal of his suit.

The shooter eventually pleaded guilty to conspiracy to use interstate facilities in murder-for-hire under 18 U.S.C. § 1958, after federal prosecutors determined that an unnamed inmate had used a cellphone to communicate with and hire the shooter. This suit presents a novel but flawed legal theory applied to admittedly tragic facts. In this appeal by the guard and his wife, we address two issues: whether the district court properly concluded that it had federal jurisdiction over plaintiffs’ state law claims; and if so, whether the district court properly dismissed plaintiffs’ claims on the merits.

The district court determined it had federal court jurisdiction under 28 U.S.C. § 1331 because plaintiffs’ claims were completely preempted by the Federal Communications Act. The parties do not contend the tower owners provide any wireless service. We therefore conclude these defendants cannot be treated as common carriers and cannot be sued under §§ 201 and 207 of the Act.

The wireless service provider defendants are common carriers and can be sued under §§ 201 and 207, but nothing suggests that Congress intended these sections to provide the exclusive remedy for plaintiffs’ state-law claims against those defendants. The savings clause applies to the entirety of Chapter 5 of the Communications Act, including § 332, the section at issue regarding wireless service. The savings clause demonstrates that congressional intent to completely preempt this area of law is neither clear nor manifest. We hold that the district court erred in its reliance on complete preemption principles when it denied the motion to remand.

Turning to diversity jurisdiction, plaintiffs named two non-diverse defendants in their complaint but the district court determined it could retain subject matter jurisdiction under the fraudulent joinder doctrine. We conclude plaintiffs have no possibility of succeeding against Charleston-North Charleston MSA, so the district court properly disregarded that defendant for diversity purposes.

The district court found the Communications Act preempts state law, and so plaintiffs could not prevail in their state law claims against the second non-diverse defendant, Farmers Telephone Cooperative as a matter of law. Because the Communications Act preempts plaintiffs’ claims against Farmers, Farmers was fraudulently joined and the district court did not err in denying plaintiffs’ motion to remand.

We affirm the district court judgment that plaintiffs’ claims fail as a matter of law. The Communications Act’s express language preempts plaintiffs’ claims. Their claims are barred by conflict preemption. It would be impossible for 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 cellphones inside a prison. This is the very definition of conflict preemption.

Finally, their claims are implausible. Their 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 impossible for the district court to assess plaintiffs’ claims. The recent conclusion of the U.S. Attorney’s investigation into the attack may provide additional information bolstering plaintiffs’ claims. They are free, if additional information supportive of one or more non-preempted claims exists, to file a new lawsuit.

Judgment affirmed.

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