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Farina v. Nokia Inc.

October 22, 2010

FRANCIS J. FARINA, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED
v.
NOKIA INC.; NEC AMERICA; ERICSSON WIRELESS COMM., INC.; MOTOROLA, INC.; SPRINT PCS, L.P.; AUDIOVOX COMMUNICATIONS CORPORATION; NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.; MATSUSHITA CORPORATION OF AMERICA, ALSO KNOWN AS PANASONIC CORPORATION; PHILIPS ELECTRONIC NORTH AMERICA CORP.; QUALCOMM INCORPORATED ALSO KNOWN AS QUALCOMM, INC; SAMSUNG TELECOMMUNICATIONS AMERICA, L.P.; SANYO NORTH AMERICA, INC. ALSO KNOWN AS SANYO NORTH AMERICA GROUP; SONY ELECTRONICS, INC.; AT&T WIRELESS SERVICES, INC.; CELLCO PARTNERSHIP, ALSO KNOWN AS VERIZON WIRELESS; CINGULAR WIRELESS LLC, ALSO KNOWN AS SOUTHWESTERN BELL WIRELESS FORMALLY KNOWN AS SOUTHWESTERN BELL MOBILE SYSTEMS, NC.; CELLULAR ONE GROUP, ALSO KNOWN AS CELLULAR ONE; VOICESTREAM WIRELESS CORPORATION, ALSO KNOWN AS VOICESTREAM WIRELESS; LG ELECTRONICS MOBILECOMM U.S.A.., INC.; CELLULAR TELECOMMUNICATION INDUSTRY ASSOCIATION, ALSO KNOWN AS TIA; JOHN DOES NOS. 1-100 FRANCIS J. FARINA, APELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil Action No. 06-cv-0724 (Honorable John R. Padova).

The opinion of the court was delivered by: Scirica, Circuit Judge.

PRECEDENTIAL

Argued April 19, 2010

Before: SCIRICA, AMBRO and ALARCÓN*fn1 , Circuit Judges.

OPINION OF THE COURT

Appellant Francis J. Farina brought this class action against various cell phone manufacturers and retailers of wireless handheld telephones. He appeals from the dismissal of his complaint on the ground that his claims are preempted by regulations promulgated by the Federal Communications Commission. We will affirm.

I.

Farina represents a putative class consisting of all past, current, and future Pennsylvania purchasers and lessees of cell phones who have notbeen diagnosed with an injury or illness resulting from their cell phone usage. Farina's claims are based on the allegation that cell phones, as currently manufactured, are unsafe to be operated without headsets because the customary manner in which they are used-with the user holding the phone so that the antenna is positioned next to his head-exposes the user to dangerous amounts of radio frequency ("RF") radiation. Farina alleges the marketing of cell phones as safe for use without headsets violates several provisions of Pennsylvania law.

A.

A cell phone functions by transmitting information between its low-powered radio transmitter and a base station, usually a tower containing a large antenna. See generally Pinney v. Nokia, Inc., 402 F.3d 430, 439--40 (4th Cir. 2005). Each base station reaches a relatively small area, or cell, and as a user moves from cell to cell, the signal must transfer from base station to base station. Id. at 440. When cell phones communicate with base stations, they emit RF energy. Id. The strength of a cell phone signal, and hence its range, has been positively correlated with the intensity of its RF emissions. See In re Rural Telephone Cos., 18 F.C.C.R. 20802, 20829 & n.114 (2003) [hereinafter NPR Rural] (notice of proposed rulemaking).*fn2

The science is clear that at high levels RF radiation can cause adverse "thermal" effects resulting from the heating of human tissue. See generally FCC, Office of Engineering & Technology, Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields, OET Bull. No. 56, 6--7 (4th ed. Aug. 1999) [hereinafter O E T B u l l e t i n ] , a v a i l a b l e a t http://www.fcc.gov/Bureaus/Engineering_Technology/Docum ents/bulletins/oet56/oet56e4.pdf. More controversial is the purported existence of "non-thermal" effects caused by lower levels of RF radiation. Farina alleges that over the past five decades "dozens of peer reviewed research papers were published which, individually and collectively, raised serious and credible questions regarding whether the RF[ radiation] to which [cell phone] users were and are exposed posed a risk or threat to their health." Third Am. Compl. ¶ 51; see also id. ¶¶ 79--86, 90--98 (describing findings from numerous studies and laboratory tests). According to the FCC, however, "the evidence for production of harmful biological effects [from low-level RF radiation] is ambiguous and unproven." OET Bulletin 8. Results from studies have been "inconclusive," and "while the possibility of 'non-thermal' biological effects may exist, whether or not such effects might indicate a human health hazard is not presently known." Id. In light of the present state of the science, the FCC has stated that any cell phone legally sold in the United States is a "safe" phone. App. 691.

B.

Federal regulation of radio communications can be traced back a century, to the Wireless Ship Act of 1910, ch. 379, 36 Stat. 629. See Nat'l Broad. Co. v. United States, 319 U.S. 190, 210 (1943). Federal control over the medium was extended by the Radio-Communications Act of 1912, ch. 287, 37 Stat. 302, which mandated federal licensing of the use of radio frequencies, Nat'l Broad. Co., 319 U.S. at 210, and was cemented by the Federal Communications Act of 1934, ch. 652, 48 Stat. 1064 ("FCA"), Nat'l Broad. Co., 319 U.S. at 213--14. The FCA was enacted "[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges . . . ." 47 U.S.C. § 151. To that end, the FCA established the FCC, which was endowed with broad authority to license and regulate radio communications. See Nat'l Broad. Co., 319 U.S. at 214--16.

The FCC's jurisdiction extends to wireless telephone service, see In re An Inquiry Into the Use of the Bands 825--845 MHz and 870--890 MHz for Cellular Communications Systems, 86 F.C.C.2d 469, 470 (1981) [hereinafter Cellular Commc'ns], and FCC authority over the technical aspects of radio communications is "exclusive," Head v. N.M. Bd. of Exam'rs in Optometry, 374 U.S. 424, 430 n.6 (1963). The FCC is charged with fostering the development of an efficient wireless network, 47 U.S.C. § 151, and an essential characteristic of an efficient network is nationwide accessibility and compatibility, see Cellular Commc'ns, 86 F.C.C.2d at 503 ("Throughout the cellular proceeding an essential objective has been for cellular service to be designed to achieve nationwide compatibility. . . .

[A] cellular subscriber traveling outside of his or her local service area should be able to communicate over a cellular system in another city."). Moreover, the FCC has long asserted that uniformity in the technical standards governing wireless services is necessary to ensure an efficient nationwide system. See id. at 504--05 ("[W]e are asserting federal primacy over the areas of technical standards and competitive market structure for cellular service."); see also In re Petition of the Conn. Dep't Pub. Util. Control, 10 F.C.C.R. 7025, 7034 (1995) ("Congress intended . . . to establish a national regulatory policy for [commercial mobile radio services], not a policy that is balkanized state-by-state." (footnote omitted)).

The FCC has regulated human exposure to RF emissions only since 1985. See In re Responsibility of the F.C.C. to Consider Biological Effects of Radiofrequency Radiation, 100 F.C.C.2d 543, 544 (1985) [hereinafter Responsibility]. The FCC's RF regulations were promulgated to satisfy the Commission's obligations under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq.*fn3 NEPA obligates all federal agencies-not just the FCC-to consider and identify the environmental impact of any "major" action that "significantly affect[s] the quality of the human environment." 42 U.S.C. § 4332(2)(C). Although the FCC does not possess individual agency expertise with respect to the development of public health and safety standards, see Responsibility, 100 F.C.C.2d at 551, the Commission concluded that NEPA obligated it to regulate RF radiation, see id. at 546. After seeking input from other federal agencies*fn4 and interested parties, the FCC adopted as its own standard the then-current American National Standards Institute Committee ("ANSI") standard governing RF emissions. Id. at 551. Notably, these regulations did not extend to cell phones. See id. at 561--62.

In 1993, prompted by ANSI's revision of its standards in collaboration with the Institute of Electrical and Electronic Engineers, Inc. ("IEEE"), the FCC began rulemaking procedures to determine whether it should strengthen its regulations. See In re Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 8 F.C.C.R. 2849, 2849 (1993) [hereinafter NPR FCC First Order] (notice of proposed rulemaking). Among the proposed changes was the extension of RF regulations to cover cell phones. Id. at 2851. During the pendency of this notice-and-comment period, Congress passed the Telecommunications Act of 1996 ("TCA"), which directed the FCC to "make effective rules regarding the environmental effects of [RF] emissions" within 180 days of the TCA's enactment. Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152. In addition, the TCA expanded the FCC's authority to preempt certain state and local regulations of RF emissions. See 47 U.S.C. § 332(c).

In response to the TCA, the FCC adopted a hybrid of the ANSI/IEEE standard and the standard recommended by the National Council on Radiation Protection and Measurements ("NCRP"). See In re Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C.R. 15123, 15134--35, 15146--47 (1996) [hereinafter FCC First Order]. These regulations, reflecting a "consensus view of the federal agencies responsible for matters relating to the public safety and health," id. at 15124, limited RF emissions from cell phones for the first time, id. at 15146--47. In particular, the FCC adopted a maximum specific absorption rate ("SAR")-which measures the amount of energy absorbed in human tissue-in "uncontrolled"*fn5 environments of 0.08 watts/kilogram (W/kg) as averaged over the whole-body and 1.6 W/kg spatial peak as averaged over any 1 gram of tissue, as measured for frequencies between 100 kHz and 6 GHz. Id. at 15140--41, 15146--47; see also 47 C.F.R. § 2.1093(d)(2).*fn6 The Commission recognized that research on the safety of RF radiation was ongoing, and pledged to monitor the science "in order to ensure that our guidelines continue to be appropriate and scientifically valid." FCC First Order, 11 F.C.C.R. at 15125. The FCC reaffirmed the standards relevant to this case one year later. See In re Procedures for Reviewing Requests for Relief From State and Local Regulations, 12 F.C.C.R. 13494, 13505 (1997) [hereinafter FCC Second Order]. The current standards are codified at 47 C.F.R. § 2.1093(d), and all cell phones sold in the United States must comply with those regulations, 47 C.F.R. §§ 2.803(a)(1), 24.51--.52.

C.

The complaint before us in this appeal is Farina's Third Amended Complaint. The procedural history of this case is complex, winding through state court, two federal district courts, and the Judicial Panel on Multidistrict Litigation. Because the specifics of the procedural history are implicated by Farina's challenge to our subject matter jurisdiction, we set them out in detail.

Farina initially brought this putative class action in the Philadelphia County Court of Common Pleas, asserting claims for: (1) civil conspiracy to market and sell defective cell phones by collective means, including the suppression of information regarding the health risks of RF emissions and the deliberate misleading of the public as to those risks; (2) breach of implied warranties of merchantability and fitness for a particular purpose, on the ground that cell phones sold without headsets were unsafe to use; (3) breach of express warranty of safe usage; (4) violation of the Magnuson-Moss Warranty Improvement Act, 15 U.S.C. §§ 2301--12, on the basis of breach of express and implied warranties; (5) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law;*fn7 and (6) a judgment under the Pennsylvania Declaratory Judgments Act, 42 Pa. Cons. Stat. § 7531, et seq., declaring that defendants' conduct violated Pennsylvania law and requiring defendants to award the class members with headsets.

Farina filed his initial complaint on April 19, 2001. Defendants subsequently removed the case to the United States District Court for the Eastern District of Pennsylvania. Farina's case was one of a set of parallel cases alleging defects in cell phones arising from the health risks of RF radiation that were brought in state courts in Pennsylvania, Maryland, New York, Georgia, and Louisiana. The cases were consolidated*fn8 by the Judicial Panel on Multidistrict Litigation and transferred to the United States District Court for the District of Maryland ("Maryland court"). In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1358 (J.P.M.L. 2001). Four of these cases, including Farina's, were removed to federal court on the basis of federal-question jurisdiction. The Louisiana case, Naquin v. Nokia Mobile Phones, Inc., was removed on the basis of diversity jurisdiction. The plaintiffs in all cases, except for the Naquin plaintiffs, filed a consolidated motion to remand before the Maryland court. The court denied the motion, concluding that federal-question jurisdiction was raised by the issue of federal preemption. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 216 F. Supp. 2d 474, 491--92 (D. Md. 2002). The court then granted the defendants' motion to dismiss, concluding that FCC regulations of RF emissions preempted the plaintiffs' suit. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 248 F. Supp. 2d 452, 467 (D. Md. 2003).

The plaintiffs appealed to the Court of Appeals for the Fourth Circuit, which reversed. Pinney, 402 F.3d at 439. The court found subject matter jurisdiction lacking for the plaintiffs-including Farina-in the cases other than Naquin. Id. at 451. In particular, the issue of federal preemption did not arise on the face of a "well-pleaded complaint," but merely constituted an anticipated affirmative defense, which could not confer jurisdiction. Id. at 445--46. It similarly rejected application of the jurisdictional doctrine of complete preemption. Id. at 451. However, for the Naquin plaintiffs, the court reached the merits of the preemption issue-as it had jurisdiction on the basis of diversity-and concluded the FCA, as amended by the TCA, did not preempt these claims. Id. at 459.

Accordingly, because the Fourth Circuit concluded federal jurisdiction did not exist over Farina's claims, his case was remanded back to the Court of Common Pleas. On December 23, 2005, Farina filed a Second Amended Complaint, adding, for the first time, LG Electronics, Inc., a Korean cell phone manufacturer, and its American subsidiary, LG Electronics U.S.A., Inc. (collectively, "LG defendants"). The complaint was served on December 27, and no defendant sought removal within thirty days, as required by 28 U.S.C. § 1446(b).

Shortly after the filing of the Second Amended Complaint, LG defendants' counsel allegedly approached Farina's counsel, seeking to drop the listed LG corporations from the suit-who purportedly had no connection to the manufacture or retail of cell phones-and substitute a different American subsidiary, LG Electronics MobileComm U.S.A., Inc. ("LG MobileComm"). According to Farina, his counsel hesitated to amend the complaint, as it had filed the Second Amended Complaint only three weeks prior, and sought instead to file a Praecipe to Amend Caption and Substitute Party. But, as Farina alleges, LG defendants' counsel insisted upon a formal amended complaint,*fn9 and Farina acquiesced, filing the Third Amended Complaint on February 9, 2006. The Third Amended Complaint was identical to the Second Amended Complaint in all material respects, with the exception of the replacement of LG defendants with LG MobileComm.

Although LG defendants had not removed the case within thirty days of the date they were added to the Second Amended Complaint, LG MobileComm removed the action on February 17, 2006-well within 30 days of the filing of the Third Amended Complaint-asserting jurisdiction existed under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Defendants then sought to stay the proceedings pending a transfer to the Judicial Panel on Multidistrict Litigation, which the District Court granted on March 22. The case returned to the Judicial Panel on Multidistrict Litigation, which transferred the case back to the Maryland court on June 20.*fn10 Farina had filed a Motion to Vacate Conditional Transfer Order prior to the transfer to the Maryland court, based primarily on the absence of federal subject matter jurisdiction. The Judicial Panel on Multidistrict Litigation did not address the jurisdictional issue in its transfer order, stating "[t]he pending motion to remand to state court can be presented to and decided by the transferee judge." App. 331. On November 10, Farina filed an Amended Motion to Remand before the Maryland court.*fn11 After a hearing on the motion to remand to state court, the Maryland court made no decision on the issue, instead transferring the case back to the Eastern District of Pennsylvania.

The District Court ultimately denied Farina's motion. The court held CAFA provided grounds for federal jurisdiction, and Farina's failure to move to remand within thirty days of LG MobileComm's removal waived the defects in defendants' initial failure to remove within the required thirty-day period after the filing of the Second Amended Complaint. In a separate order, the District Court addressed the merits of the preemption issue, concluding that the FCC's regulations governing RF emissions preempted Farina's claims. Farina timely appealed.

II.

"[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review . . . .'" Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 US. 237, 244 (1934))). We review a district court's determination of its own subject matter jurisdiction de novo. Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007).

A.

There is no dispute that this case, in its current incarnation, satisfies the substantive requirements of CAFA.*fn12

See Def. LG MobileComm's Notice of Removal 6--9. But CAFA is not retroactively applicable. It applies only to civil actions "commenced on or after the date of enactment," February 18, 2005. CAFA, Pub. L. No. 109-2, § 9, 119 Stat. 4, 14 (2005) (codified as Note to 28 U.S.C. § 1332).

CAFA itself provides no definition of commencement. We have not yet addressed the issue, but most of our sister circuits have looked to state law for the definition of commencement. See Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir. 2006) ("[T]he courts of appeals that have examined the issue have unanimously held that when a lawsuit is initially 'commenced' for purposes of CAFA is determined by state law. We agree." (footnote omitted)); Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 750 (7th Cir. 2005) ("[S]tate rather than federal practice must supply the rule of decision."); see also Smith v. Nationwide Prop. and Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007); Plubell v. Merck & Co., 434 F.3d 1070, 1071 (8th Cir. 2006); Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005); Natale v. Pfizer, Inc., 424 F.3d 43, 44 (1st Cir. 2005). But see Prime Care of Ne. Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1289 n.6 (10th Cir. 2006) ("[W]e do not express an opinion as to whether federal or state law should control.").

We agree that state law should govern the inquiry. CAFA operates as an expansion of diversity jurisdiction. See Bush, 425 F.3d at 686. The Act expressly authorizes the removal of qualifying class actions to federal court. See Pub. L. No. 109-2, § 5, 119 Stat. 4, 12--13 (codified at 28 U.S.C. § 1453). It envisions and applies to cases that are initially filed in state court and subsequently removed to federal court. For a case initially brought in state court, state law should govern when the case commences. Cf. Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 533--34 (1949) (applying state law to determine commencement for statute of limitations purposes); Herb v. Pitcairn, 324 U.S. 117, 120 (1945) ("Whether any case is pending in the Illinois courts is a question to be determined by Illinois law . . . ."). Accordingly, we look to Pennsylvania law.

The filing of an original complaint in Pennsylvania court commences an action. See Pa. R. Civ. P. 1007 ("An action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint."). As such, the filing of the original complaint commenced a civil action for the purposes of CAFA. Farina's initial complaint was filed on April 19, 2001, clearly before CAFA's enactment. But the Second Amended Complaint, filed on December 23, 2005, and the Third Amended Complaint, filed on February 9, 2006, were filed after the date of CAFA's enactment. If either of these complaints constituted the commencement of a new action, CAFA's jurisdictional grant ...


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