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Kinsey v. Virginia Electric and Power Co.

United States District Court, W.D. Virginia, Harrisonburg Division

December 22, 2016

DONNA KINSEY, Plaintiff,
v.
VIRGINIA ELECTRIC AND POWER COMPANY, Defendant.

          MEMORANDUM OPINION

          Elizabeth K. Dillon Elizabeth K. Dillon United States District Judge

         This case is before the court on plaintiff Donna Kinsey's motion to remand and request for fees. The motion has been fully briefed, and a hearing was held on October 27, 2016. Having considered the parties' briefs and arguments, as well as the applicable law, the court finds that subject matter jurisdiction is lacking, and will therefore remand this case to state court, but will decline to award costs.

         I. BACKGROUND

         This case arises from defendant Virginia Electric and Power Company's (Dominion) installation of two “smart meters”-electrical metering devices which transmit data through radio frequency radiation (RF or RFR)-on Kinsey's property. (Compl. ¶¶ 6, 12, Dkt. No. 1-1.) Kinsey claims that as a result of RF emissions from a meter placed on the outside of her house adjacent to living areas, she suffered and continues to suffer symptoms including mood swings, trouble concentrating, insomnia, memory loss, ringing in her ears, and inexplicable crying spells. (Id. ¶¶ 6-8, 22.) Kinsey also alleges that Dominion concealed the installation of the smart meter, and that Dominion misled her by telling her both that it had been disabled and that it was working properly. (Id. ¶¶ 17-21, 45, 49, 57, 61-62, 72-73.)

         Kinsey's complaint discusses the dangers of RF radiation and its potential effects on those exposed to it. (See generally id.) Kinsey notes that while the Federal Communications Commission (FCC) regulates RF emissions, its regulations “do not protect from biological harm caused by low or ‘non-thermal' levels of microwaves.” (Id. ¶ 26.) Accordingly, Kinsey suggests, those regulations are insufficient to protect people from harm by RF emissions: they “can show a device to be unsafe, but cannot prove that a device is safe.” (Id. ¶¶ 27-28.)

         Dominion filed a notice of removal on September 1, 2016, asserting federal question jurisdiction under 28 U.S.C. § 1331. (Notice of Removal ¶ 7, Dkt. No. 1.) In its notice, Dominion reasoned that wireless technology is subject to federal regulation and that the FCC has promulgated specific regulations governing RF emissions from wireless communications devices. (Id. ¶ 6.) Accordingly, Dominion claims, “the standard of care applicable to the installation and operation of smart meters, the maximum permissible exposure limits for RF emissions, and any applicable defenses to Plaintiff's causes of action, including but not limited to federal preemption, are all governed by federal law.” (Id. ¶ 7.)

         Kinsey moved to remand, arguing that her complaint asserts only state law personal injury claims; that nothing in the FCC's regulations authorizes negligently installing, operating, or maintaining a smart meter; and that in this case federal preemption is merely a defense, insufficient to invoke this court's jurisdiction, and the case must be remanded. (See generally Br. Supp. Mot. Remand, Dkt. No. 11.) Kinsey also seeks $3, 500 in costs associated with its motion to remand under 28 U.S.C. § 1447(c).

         II. DISCUSSION

         A. Remand Standard

         Under 28 U.S.C. § 1441, parties may remove cases over which the district courts of the United States have original jurisdiction, including those “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. At issue here is whether Kinsey's claims “aris[e] under” federal law, such that this court may exercise removal jurisdiction. See Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005). As the party seeking removal, Dominion bears the burden of establishing federal jurisdiction. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Because removal implicates “significant federalism concerns, ” Dixon v. Coburg Dairy, 369 F.3d 811, 816 (4th Cir. 2004) (en banc) (quoting Mulcahey, 29 F.3d at 151), removal jurisdiction is narrowly construed, and courts should resolve doubts about removal jurisdiction in favor of remand. Pinney, 402 F.3d at 442; Mulcahey, 29 F.3d at 151.

         B. Analysis

         Before the hearing on this motion, the court drew the parties' attention to Pinney v. Nokia, 402 F.3d 430 (4th Cir. 2005), in which the Fourth Circuit held that certain claims based on RF emissions from cell phones did not arise under federal law. Opposing the motion to remand in that case, Nokia argued that the claims arose under federal law by virtue of two doctrines: the substantial federal question doctrine and the doctrine of complete preemption. Id. at 441-42. Like the Pinney defendants, Dominion apparently relies on both of these doctrines, and the court will take them in turn.

         1. Substantial Federal Question

         In determining whether a claim arises under federal law for purposes of 28 U.S.C. § 1331, courts apply the “well-pleaded complaint ...


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