United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon Elizabeth K. Dillon United States
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.
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.)
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.
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.)
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).
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.
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.
Substantial Federal Question
determining whether a claim arises under federal law for
purposes of 28 U.S.C. § 1331, courts apply the
“well-pleaded complaint ...