Robert Johnson v. American Towers, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1872

ROBERT JOHNSON; MARY JOHNSON,

Plaintiffs - Appellants,

v.

AMERICAN TOWERS, LLC; FARMERS TELEPHONE COOPERATIVE, INC.;
CELLCO PARTNERSHIP, d/b/a Verizon Wireless; SPRINT CELLULAR
COMPANY OF SOUTH CAROLINA; SPRINT COMMUNICATIONS COMPANY
L.P.; ALLTEL COMMUNICATIONS, LLC; T-MOBILE USA TOWER LLC; T-
MOBILE USA INC.; AT&T INC.; AT&T MOBILITY LLC; AT&T MOBILITY
SERVICES, LLC; VERIZON WIRELESS, LLC; VERIZON WIRELESS
SERVICE LLC; VERIZON WIRELESS OF THE EAST LP; TRACFONE
WIRELESS, INC.,

Defendants – Appellees,

and

CELLCO TELEPHONE COMPANY OF THE SOUTHEAST, LLC; ALLTEL
COMMUNICATIONS, INCORPORATED; ALLTEL MOBILE COMMUNICATIONS
OF SOUTH CAROLINA, INC.,

Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:13-cv-00789-CMC)

Argued: October 29, 2014 Decided: March 25, 2015

Before SHEDD and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Shedd and Senior Judge Davis joined.

ARGUED: John E. Parker, PETERS, MURDAUGH, PARKER, ELTZROTH &
DETRICK, PA, Hampton, South Carolina, for Appellants. Scott H.
Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C.; Jeremy Cook Hodges, NELSON MULLINS
RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for
Appellees. ON BRIEF: William F. Barnes, III, PETERS, MURDAUGH,
PARKER, ELTZROTH & DETRICK, PA, Hampton, South Carolina, for
Appellants. John M.S. Hoefer, WILLOUGHBY & HOEFER, P.A.,
Columbia, South Carolina; Andrew E. Goldsmith, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for
Appellees Cellco Partnership, Sprint Cellular Company of South
Carolina, Alltel Communications, LLC, Verizon Wireless, Verizon
Wireless Service LLC, and Verizon Wireless of the East LP.
Robert W. Foster, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP,
Columbia, South Carolina, for Appellee Farmers Telephone
Cooperative, Inc. Daniel R. Settana, Jr., Janet Brooks Holmes,
MCKAY, CAUTHEN, SETTANA & STUBLEY, P.A., Columbia, South
Carolina, for Appellees AT&T Inc., AT&T Mobility LLC, and AT&T
Mobility Services, LLC. Eric G. Fosmire, THE FOSMIRE LAW FIRM,
LLC, Columbia, South Carolina, for Appellees T-Mobile USA Tower
LLC and T-Mobile USA, Incorporated. Elbert S. Dorn, Myrtle
Beach, South Carolina, Burl F. Williams, NEXSEN PRUET, LLC,
Greenville, South Carolina, for Appellee American Towers, LLC.
David S. Cox, Matthew E. Tillman, WOMBLE CARLYLE SANDRIDGE &
RICE, LLP, Charleston, South Carolina, for Appellee Sprint
Communications Company L.P. Daniel B. White, GALLIVAN, WHITE &
BOYD, P.A., Greenville, South Carolina, for Appellee TracFone
Wireless, Inc.

2
FLOYD, Circuit Judge:

This suit presents a novel but flawed legal theory applied

to admittedly tragic facts. Robert Johnson, a prison guard in

Bishopville, South Carolina, was shot multiple times in his

home. The ensuing investigation revealed that the attack was

ordered by an inmate at the prison where Mr. Johnson worked

using a contraband cell phone. Mr. Johnson survived the attack

and, with his wife, later brought suit. The Johnsons did not,

however, sue the typical defendants – i.e., the shooter or any

prison inmate or employee. Rather, the Johnsons sued several

cellular phone service providers and owners of cell phone

towers. According to the Johnsons, these defendants are liable

for Mr. Johnson’s injuries because they were aware that their

services facilitated the illegal use of cellphones by prison

inmates and yet failed to take steps to curb that use.

In this appeal by the Johnsons, we address two issues: (1)

whether the district court properly concluded that it had

federal jurisdiction over the Johnsons’ state-law claims; and

(2) if so, whether the district court properly dismissed the

Johnsons’ claims on the merits. For the reasons set forth

below, we affirm the judgment.

3
 I.

A.

Captain Robert Johnson was an employee of the Lee

Correctional Institution in Lee County, South Carolina. As a

correctional officer, Mr. Johnson was responsible for seizing

cell phones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and

shot him six times in the chest and stomach. His wife, Mary

Johnson, witnessed the attack. Mr. Johnson survived but

underwent eight surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina

concluded after a thorough investigation that a group of inmates

ordered the attack in retaliation for Mr. Johnson’s prior

confiscation of their contraband cell phones and other goods. 1

The U.S. Attorney further found that an unnamed inmate had used

a cell phone to communicate with the shooter, Sean Echols. That

inmate also paid Echols. Echols eventually pleaded guilty to

conspiracy to use interstate facilities in murder-for-hire under

18 U.S.C. § 1958(a). United States v. Echols, No. 3:13-cv-

1
Press Release, U.S. Attorney’s Office, District of South
Carolina, Man Pleads Guilty to Conspiracy to Commit Murder-for-
Hire in Shooting of Correctional Officer (Apr. 9, 2014),
available at http://www.fbi.gov/columbia/press-
releases/2014/man-pleads-guilty-to-conspiracy-to-commit-murder-
for-hire-in-shooting-of-correctional-officer.

4
00211-JFA (D.S.C. Aug. 13, 2014) (judgment of the district

court).

B.

In February 2013, the Johnsons filed suit in South Carolina

state court seeking to recover under state-law negligence and

loss of consortium theories. They seek to recover against two

groups of Defendants: (1) wireless service providers; 2 and (2)

owners of towers that lease space to those providers for the

provisions of wireless service. 3 The Johnsons alleged that both

sets of Defendants “were aware of the illegal use of cellphones

by inmates using signals emitted and received at the defendants’

towers” and that “this use created an unreasonable risk of harm

2
The wireless service providers named in this case are:
Sprint Cellular Company of South Carolina, Sprint Communications
Company, L.P, Alltel Communications, LLC, Alltel Communications,
Inc., Alltel Mobile Communications of South Carolina, Inc., T-
Mobile USA Tower LLC, T-Mobile USA, Inc., AT&T Inc., AT&T
Mobility LLC, AT&T Mobility Services, LLC, Verizon Wireless
(VAW) LLC, Verizon Wireless Services, LLC, Verizon Wireless of
the East LP, and TracFone Wireless, Inc. The Johnsons also
named Alltel Mobile Communications of South Carolina, Inc. and
Alltel Communications, Inc., neither of which are parties to
this appeal because they no longer exist. J.A. 28-32.
3
The tower owner defendants named in this case are:
American Towers, LLC, Farmers Telephone Cooperative, Inc.,
Cellco Telephone Company of the Southeast, LLC, Cellco
Partnership d/b/a Verizon Wireless, and T-Mobile USA. The
Johnsons also named Cellco Telephone Company of the Southeast,
LLC, which is not a party to this appeal because it no longer
exists. J.A. 26-27.

5
to others.” Appellants’ Br. at 6. The Johnsons sought

compensatory and punitive damages.

The Defendants timely removed the case to federal court,

asserting both federal question jurisdiction under 28 U.S.C.

§ 1331 and complete diversity under 28 U.S.C. § 1332. In April

2013, the Johnsons moved to remand the case to state court. The

district court denied the Johnsons’ motion on two grounds.

First, the district court concluded it had federal question

jurisdiction because the Federal Communications Act

(“Communications Act”) completely preempted all of the Johnsons’

state law claims. Second, the district court found that it had

diversity jurisdiction because the only non-diverse defendants

were fraudulently joined and the amount in controversy exceeded

$75,000.

On June 19, 2013, the district court consolidated the

Defendants’ motions to dismiss and granted the motion under Rule

12(b)(6) of the Federal Rules of Civil Procedure. It did so for

three reasons: (1) the Johnsons’ claims were barred by express

and conflict preemption; (2) South Carolina law did not impose a

duty on Defendants to prevent inmates from illegally using their

cell phone services; and (3) the Johnsons’ claims were

implausible and so did not meet pleading standards. This appeal

followed.

6
 II.

The Johnsons contend that the district court lacked subject

matter jurisdiction over their state law claims, and thus erred

in denying their motion to remand. We review questions of

subject matter jurisdiction de novo, including questions related

to the propriety of removal. Lontz v. Tharp, 413 F.3d 435, 439

(4th Cir. 2005). As set forth below, we find that the

Communications Act does not completely preempt the Johnsons’

claims. Accordingly, the district court erred in finding the

existence of federal question jurisdiction. Nevertheless,

because the district court properly exercised jurisdiction on

the basis of diversity of citizenship of the parties, however,

we affirm the district court’s denial of the Johnsons’ motion to

remand.

A.

We first consider whether the district court correctly

found federal question jurisdiction. 28 U.S.C. § 1331. The

district court determined it had jurisdiction on this basis

because the Johnsons’ claims were completely preempted by the

Communications Act. In doing so, the district court relied on

three provisions of the Act: (1) Section 332, the Act’s

preemption provision; and (2) Sections 201 and 207, which when

read in conjunction allow private parties to recover damages

7
resulting from a common carrier’s breach of its obligation to

ensure that “all . . . practices . . . for and in connection

with communication service” are “just and reasonable.” 47

U.S.C. §§ 201(b), 207, 332. This was error.

At the outset, we note that complete preemption only

applies in a “very narrow” range of cases. Marcus v. AT&T

Corp., 138 F.3d 46, 54 (2d Cir. 1998). “The limited

applicability of the complete preemption doctrine is evidenced

by the fact that the [Supreme] Court has only approved its use

in three areas,” none of them pertinent to the Communications

Act. Id. In fact, we have recognized a presumption against

finding complete preemption. Lontz, 413 F.3d at 440 (citing

Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996)). This

presumption — of course a rebuttable one — exists, in part,

because “[f]ederalism concerns strongly counsel against imputing

to Congress an intent to displace ‘a whole panoply of state law

in [a certain] area’ absent some clearly expressed direction.”

Custer, 89 F.3d at 1167 (quoting Painters of Phila. Dist.

Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146,

1153 n.7 (3d Cir. 1989)).

The foundation of the district court’s complete preemption

finding is § 332 of the Communications Act. See 47 U.S.C.

§ 332(c)(3)(A) (“[N]o State or local government shall have any

authority to regulate the entry of or the rates charged by any

8
commercial mobile service or any private mobile service

. . . .”); Farina v. Nokia, Inc., 625 F.3d 97, 105-06 (3d Cir.

2010) (“The FCC’s jurisdiction extends to wireless telephone

service, and FCC authority over the technical aspects of radio

communications is ‘exclusive.’” (citations omitted)). As set

forth in Section III.A, infra, we agree that Section 332

expressly preempts the Johnsons’ claims on the merits. But

complete preemption and express preemption are different

animals.

Complete preemption and ordinary preemption on the merits

“are not as close kin jurisprudentially as their names suggest.”

Lontz, 413 F.3d at 440. Unlike ordinary preemption, which does

not create federal subject matter jurisdiction, complete

preemption has the effect of “transform[ing]” a state-law cause

of action into one arising under federal law because Congress

has occupied the field so thoroughly as to leave no room for

state-law causes of action at all. Caterpillar Inc. v.

Williams, 482 U.S. 386, 399 (1987). Put differently, complete

preemption is a “jurisdictional doctrine,” while “ordinary

preemption simply declares the primacy of federal law,

regardless of the forum or the claim.” Lontz, 413 F.3d at 440.

Complete preemption applies only when “Congress has clearly

manifested an intent to make causes of action . . . removable to

9
federal court.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66

(1987).

As we have repeatedly recognized, “‘the sine qua non of

complete preemption is a pre-existing federal cause of action

that can be brought in the district courts . . . .’” In re

Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir.

2006) (quoting Lontz, 413 F.3d at 441). Indeed, the Supreme

Court has emphasized that for the purposes of complete

preemption, the preempting statute must provide “the exclusive

cause of action” for claims in the area that the statute

preempts. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9

(2003) (emphasis added). The district court relied on §§ 201

and 207 of the Communications Act, which, in the district

court’s view, provide a federal cause of action that is the

exclusive remedy for the Johnsons’ claims. 47 U.S.C. §§ 201,

207. 4 We disagree.

As an initial matter, §§ 201 and 207 allow recovery only

against common carriers. Under the Communications Act, “‘common

carriers’ are entities that must provide [transmission]

4
Section 207 provides a remedy for the subject matter in §
201(b), which includes “all charges, practices, classifications
and regulations for and in connection with such communication
service.” 47 U.S.C. § 201(b); Global Crossing Telecomms., Inc.
v. Metrophones Telecomms., Inc., 550 U.S. 45, 53 (2007) (“[T]he
purpose of § 207 is to allow persons injured by § 201(b)
violations to bring federal-court damages actions.”).

10
service[s] to the public without discrimination and are heavily

regulated by the FCC.” Pinney v. Nokia, Inc., 402 F.3d 430, 450

(4th Cir. 2005) (citation omitted). The parties do not contend

that the tower owners provide any wireless service, and we

therefore conclude that these defendants cannot be treated as

common carriers. As a result, they cannot be sued under

Sections 201 and 207.

On the other hand, the wireless service provider defendants

are common carriers and so can be sued under §§ 201 and 207.

But nothing suggests that Congress intended these sections to

provide the exclusive remedy for the Johnsons’ state-law claims

against those defendants. See Beneficial Nat’l Bank, 539 U.S.

at 8. Rather, the Communication Act’s savings clause suggests

just the opposite. 47 U.S.C. § 414 (“Nothing in this chapter

contained shall in any way abridge or alter the remedies now

existing at common law or by statute, but the provisions of this

chapter are in addition to such remedies.”). As we have held,

this savings clause counsels against a finding that Congress

intended to sweep aside all state claims in a particular area.

Pinney, 402 F.3d at 450. This conclusion is consistent with

that of other courts addressing this issue. See In re NOS

Commc'ns, MDL No. 1357, 495 F.3d 1052, 1058 (9th Cir. 2007)

(stating that the Communication Act’s savings clause “is

fundamentally incompatible with complete field preemption; if

11
Congress intended to preempt the entire field of

telecommunications regulation, there would be nothing for

section 414 to ‘save’ and the provision would be mere

surplusage” (citing Marcus, 138 F.3d at 54)); accord Smith v.

GTE Corp., 236 F.3d 1292, 1313 (11th Cir. 2001). Consistent

with these decisions and our precedent in Pinney, we hold that

the Communications Act does not “wholly displace[]” state law in

this area because it explicitly preserved state-law remedies.

Beneficial Nat'l Bank, 539 U.S. at 8.

As the district court noted, Pinney concerned wireless

devices, not wireless service. 5 In our view, however, this is a

distinction without a difference. The savings clause applies to

the entirety of Chapter 5 of the Communications Act, including

§ 332 – the section at issue here regarding wireless service.

5
The district court observed that in Pinney, we
distinguished wireless device claims, which are not preempted by
the Communications Act, and claims that would “obstruct or
burden a wireless service provider’s ability to provide a
network of wireless service coverage.” 402 F.3d at 456.
Although § 332(c)(3)(A) preempts state regulation of “the entry
of or the rates charged by any commercial mobile service,” our
statement in Pinney appears in the context of a discussion of
express preemption, not complete preemption. We concluded that
§ 332 does not expressly preempt claims about wireless devices
while not deciding the exact contours of the Communications
Act’s express preemption of state-law barriers to market entry.
This analysis was separate from our discussion of complete
preemption in Pinney.

12
The savings clause demonstrates that congressional intent to

completely preempt this area of law is neither clear nor

manifest. 6 Accordingly, we hold that the district court erred in

its reliance on complete preemption principles when it denied

the motion to remand. 7

B.

We now turn to diversity jurisdiction. The Johnsons named

two non-diverse defendants in their complaint: Charleston-North

Charleston MSA and Farmers Telephone Cooperative. Normally,

this would defeat removal on the basis of diversity jurisdiction

under 28 U.S.C. § 1332 because complete diversity of citizenship

6
A close reading of § 207 similarly suggests that Congress
did not intend for that provision to be the exclusive remedy for
claims against common carriers. The section states that a person
“may either” bring a complaint to the FCC or “may bring suit” in
district court, but “such person shall not have the right to
pursue both such remedies.” 47 U.S.C. § 207. The section
states that a party may bring an action to the FCC or district
court, but cannot seek relief from both, rather than suggesting
that the FCC and the district court are the sole places to bring
an action.
7
The district court relied on Bastien v. AT&T Wireless
Servs., Inc., 205 F.3d 983, 986-87 (7th Cir. 2000), which held
that at least some areas of state regulation in the wireless
service context are completely preempted by federal law.
Bastien reads the savings clause in § 414 narrowly in order to
find that § 332 completely preempts state law in the areas of
market entry or rates. Id. Because Bastien is fundamentally
inconsistent with our decision in Pinney, however, we decline to
adopt its analysis here.

13
- meaning a plaintiff cannot be a citizen of the same state as

any defendant – is necessary for a federal court to exercise

diversity jurisdiction. Mayes v. Rapoport, 198 F.3d 457, 464

(4th Cir. 1999). The district court, however, found it could

properly retain subject matter jurisdiction under the fraudulent

joinder doctrine. Under that doctrine, naming non-diverse

defendants does not defeat diversity jurisdiction. Rather, the

fraudulent joinder doctrine “effectively permits a district

court to disregard, for jurisdictional purposes, the citizenship

of certain nondiverse defendants, assume jurisdiction over a

case, dismiss the nondiverse defendants, and thereby retain

jurisdiction.” Id. at 461.

“The party alleging fraudulent joinder bears a heavy

burden—it must show that the plaintiff cannot establish a claim

even after resolving all issues of law and fact in the

plaintiff's favor.” Hartley v. CSX Transp., Inc., 187 F.3d 422,

424 (4th Cir. 1999). The removing party must show either

“‘outright fraud in the plaintiff’s pleading of jurisdictional

facts’ or that ‘there is no possibility that the plaintiff would

be able to establish a cause of action against the in-state

defendant in state court.’” Id. (quoting Marshall v. Manville

Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

The Defendants in this action rely on the latter, “no

possibility” formulation, in which a plaintiff’s claim against a

14
non-diverse defendant “need not ultimately succeed to defeat

removal; only a possibility of a right to relief need be

asserted.” Marshall, 6 F.3d at 233. This standard heavily

favors the Johnsons, who must show only a “glimmer of hope” of

succeeding against the non-diverse defendants. Mayes, 198 F.3d

at 466. Moreover, when considering whether the Johnsons have

satisfied this standard, we must resolve all legal and factual

issues in their favor. Id. at 465. “[T]his standard is even

more favorable to the plaintiff than the standard for ruling on

a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Id.

(quoting Hartley, 187 F.3d at 424). Even under this rigorous

standard, however, we conclude that the Johnsons have no

possibility of succeeding against either of the non-diverse

defendants.

It is undisputed that the first non-diverse defendant –

Charleston-North Charleston MSA Limited Partnership (formerly

the Sprint Cellular Company of South Carolina) – has no federal

license to provide cell phone service in Lee County, South

Carolina, where the prison is located. 8 Because Charleston-North

Charleston MSA could not have carried the alleged cell phone

call ordering the attack on Mr. Johnson, it could not possibly

8
The Johnsons do not appear to contest this issue on appeal
and did not dispute the Defendants’ showing in district court.

15
be liable under the Johnsons’ legal theories. 9 There is thus no

possibility that the Johnsons could succeed against Charleston-

North Charleston. Hartley, 187 F.3d at 424. Accordingly, the

district court properly disregarded Charleston-North Charleston

MSA for diversity purposes.

C.

The Johnsons’ claims against the second non-diverse

defendant, Farmers Telephone Cooperative, present a more complex

question on fraudulent joinder. Farmers Telephone Cooperative

(Farmers) leases a tower to wireless carriers, who in turn place

equipment on the tower to transmit wireless signals. The tower

does not itself transmit signals. The district court found that

the Communications Act preempts state law, and so the Johnsons

could not prevail on their state-law claim against Farmers as a

matter of law. The Johnsons therefore did not have a glimmer of

hope of success against Farmers in state court.

We agree that a finding of federal preemption would mean

that the Johnsons would have “no possibility” of success on

9
It is possible that Charleston-North Charleston MSA could
have completed a call from another wireless service provider,
but in that instance, it could not know that the call originated
from inside the prison. The Johnsons’ theory of liability
hinges on the Defendants’ awareness of an unreasonable risk of
contraband cell phone calls.

16
their state-law complaint against Farmers. Accordingly, we now

turn to the federal preemption question underlying this case.

In doing so, we conclude that the Communications Act preempts

the Johnsons’ claims against Farmers. Because Farmers was

fraudulently joined, the district court did not err in denying

the Johnsons’ motion to remand.

The Supremacy Clause of the Constitution provides, “the

Laws of the United States . . . shall be the supreme Law of the

Land; . . . any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

“Preemption fundamentally is a question of congressional intent,

and when Congress has made its intent known through explicit

statutory language, the courts’ task is an easy one.” English

v. Gen. Elec. Co., 496 U.S. 72, 79-80 (1990) (citation omitted).

Here, Congress made its intent known when in 1996 it

amended the Communications Act of 1934 to provide, “no State or

local government shall have any authority to regulate the entry

of or the rates charged by any commercial mobile service or any

private mobile service.” 47 U.S.C. § 332(c)(3)(A). The

Communications Act also grants the FCC “control . . . over all

the channels of radio transmission.” Id. § 301; see also

Farina, 625 F.3d at 105 (“The FCC’s jurisdiction extends to

wireless telephone service, and FCC authority over the technical

17
aspects of radio communications is ‘exclusive.’” (citations

omitted)).

We have acknowledged that in amending the Communications

Act, Congress preempted state laws that not only regulate market

entry, but also state laws that “obstruct or burden a wireless

service provider’s ability to provide a network of wireless

service coverage.” Pinney, 402 F.3d at 456 (citing Bastien v.

AT&T Wireless Servs., Inc., 205 F.3d 983, 987 (7th Cir. 2000)).

State law is taken here to include common-law tort duties.

Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008) (“‘[C]ommon-

law liability is ‘premised on the existence of a legal duty,’

and a tort judgment therefore establishes that the defendant has

violated a state-law obligation.”). 10 State common-law duties,

10
We emphasize that the Communications Act does not preempt
all claims that might give rise to an award of damages in the
wireless service context. In other words, the Communications
Act does not completely immunize wireless service providers from
all civil suits under state law. The D.C. Circuit held, for
example, that not all state laws having the effect of increasing
the cost of doing business constitute state regulation of
telecommunications. Cellular Telecomms. Indus. Ass’n v. F.C.C.,
168 F.3d 1332, 1336 (D.C. Cir. 1999). The FCC agrees. In re
Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, ¶¶ 33-34
(2000). Not all tort suits against wireless carriers are
prohibited by the Communications Act. Id. at ¶ 34 (“Such
litigation costs and awards are simply a cost of doing
business.”). In this case, however to find in the Johnsons’
favor, we would be compelled to articulate a common-law tort
duty that would have a real effect on the provision of wireless
service in South Carolina, something expressly prohibited by the
Communications Act.

18
such as the one that the Johnsons propose, that conflict with

federal laws or regulations, are therefore preempted. Gibbons

v. Ogden, 22 U.S. 1, 37-38 (1824).

In Pinney, we held that § 332 preempts state laws that

“obstruct or burden a wireless service provider’s ability to

provide a network of wireless service coverage.” Pinney, 402

F.3d at 456 (citing Bastien, 205 F.3d at 987). We find that the

Johnsons’ putative state-law duty on Farmers is consequently

preempted by the express language of the Communications Act. A

common-law tort duty on the part of Farmers would “obstruct or

burden a wireless service provider’s ability” to provide

coverage. Cell phone tower owners would be forced to actively

monitor wireless networks and prevent any calls, or perhaps only

calls initiated on contraband devices, coming from inside a

South Carolina prison, limiting the provision of wireless

service in those areas. Pinney, 402 F.3d at 456.

Similarly, finding a duty on the part of the wireless

service providers would override the FCC’s authority in granting

licenses to provide wireless service. The Communications Act

authorizes the FCC to “establish areas or zones to be served by”

wireless service providers. 47 U.S.C. § 303(h). Although it is

true that the Communications Act does not disturb state and

local authority to zone and regulate land use, a common-law tort

duty is not zoning or land use. See id. § 332(c)(7)(A)

19
(“[N]othing in this chapter shall limit or affect the authority

of a State or local government or instrumentality thereof over

decisions regarding the placement, construction, and

modification of personal wireless service facilities.”). As

legislative history makes clear, Congress intended for the

Communications Act to refrain from preempting local land use

regulations, not common-law tort duties. Murray v. Motorola,

Inc., 982 A.2d 764, 773-74 (D.C. 2009). Although the

Communications Act grants wide latitude to states and localities

to enact land use and zoning laws, a common-law tort duty simply

stretches § 332(c)(7)(A) too far. Instead, the Johnsons’ legal

theory would force cell phone tower owners to impede the FCC’s

authority in establishing wireless service areas.

In short, we find that the Communications Act clearly

preempts the Johnsons’ state-law tort claim against Farmers as a

matter of law. Consequently, the Johnsons do not have a

“glimmer of hope” of succeeding in state court on their claim

against Farmers. The parties are in complete diversity, and

consequently, the district court had jurisdiction over the

remaining Defendants.

III.

Having determined that the district court properly

exercised jurisdiction over the Johnsons’ claims, we next

20
consider whether it also correctly held that those claims failed

to state a claim as a matter of law. We review the district

court’s grant of the defendants’ motion to dismiss de novo. See

Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir.

2013).

As discussed below, we affirm the district court on three

grounds. First, the Communication Act’s express language

preempts the Johnsons’ claims. Second, the Johnsons’ claims are

barred by conflict preemption. Third and finally, the Johnsons’

claims are implausible. 11

A.

As we discussed above, the Communications Act provides for

a comprehensive federal scheme to ensure access to wireless

telecommunications services. Pinney, 402 F.3d at 457 (“Congress

enacted § 332 to ensure the availability of a nationwide network

of wireless service coverage, more specifically, to develop the

infrastructure necessary to provide wireless services.”).

Section 332(c)(3)(A) of the Communications Act provides, “no

State or local government shall have any authority to regulate

11
The district court also found that there is no state-law
duty under South Carolina law. We do not need to address the
state-law issues to resolve the case and so decline to do so
here.

21
the entry of or the rates charged by any commercial mobile

service or any private mobile service.” 47 U.S.C.

§ 332(c)(3)(A). We found in Pinney that § 332 preempts state

laws that “obstruct or burden a wireless service provider’s

ability to provide a network of wireless service coverage.” 402

F.3d at 456 (citation omitted). Consistent with our discussion

in Section II.C., supra, we find that the Johnsons’ putative

state-law duty on the part of the other Defendants is also

preempted by the Communications Act. A common-law tort duty

would obstruct or burden a wireless service provider’s ability

to provide coverage because wireless service providers would be

forced to actively monitor their networks and prevent any calls

coming from inside a South Carolina prison, limiting the

provision of wireless service in those areas.

B.

The district court also concluded that the Johnsons’ claim

is implicitly preempted as a matter of conflict preemption.

Conflict preemption applies to state law “when compliance with

both federal and state regulations is a physical impossibility,

or when state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.”

Pinney, 402 F.3d at 457 (quoting Hillsborough Cnty. v. Automated

Med. Labs., Inc., 471 U.S. 707, 713 (1985)).

22
 The Communications Act establishes a comprehensive federal

scheme for the provision of wireless service coverage. 12 47

U.S.C. § 332. The federal scheme’s purpose is to “ensure the

availability of a nationwide network of wireless service

coverage . . . [and] to develop the infrastructure necessary to

provide wireless services.” Pinney, 402 F.3d at 457. To

further this purpose, some (but not all) areas of state law are

preempted. Id. To ensure the availability of service coverage,

the Act prohibits a person from willfully interfering with

wireless signals without authorization from the FCC. 47 U.S.C.

§ 333. (“No person shall willfully or maliciously interfere with

or cause interference to any radio communications of any station

12
In Pinney we described the federal scheme as follows:

Thus, § 332(1) provides factors that the FCC
must consider in managing the spectrum used
for wireless services, 47 U.S.C. § 332(a);
(2) classifies wireless service providers
that provide wireless service to the public
for profit as “common carriers” (subjecting
them to numerous duties under the FCA), 47
U.S.C. § 332(c)(1)(A); (3) prevents states
from regulating “the entry of or the rates
charged by” wireless service providers, 47
U.S.C. § 332(c)(3)(A); and (4) limits in
certain respects the ability of states and
local zoning authorities to regulate the
“placement, construction, and modification”
of facilities that provide wireless service,
47 U.S.C. § 332(c)(7).

402 F.3d at 457.

23
licensed or authorized by or under this chapter or operated by

the United States Government.”).

The district court concluded that a state-law obligation to

block calls originating from contraband cell phones inside the

prison would necessarily conflict with § 333. The FCC has

repeatedly interpreted § 333 to prohibit any form of “jamming”

of wireless signals, even by prison authorities. In a recent

rulemaking, the FCC has undertaken to make it easier for prisons

to address the problem of contraband cell phones. 13 The FCC was

responding to a petition by the South Carolina Department of

Corrections and other states’ prison authorities, which

requested that it be given the power to jam signals inside

prisons. The FCC declared, “[T]he manufacture, importation,

marketing, sale, or operation of radio signal jamming devices

within the United States is prohibited, except for the sale to

or use by the Federal Government.” Id. at ¶ 19 (emphasis

added). The FCC is considering other means to address the

problem of contraband cell phones without allowing prison

authorities to jam wireless signals themselves, such as making

13
Notice of Proposed Rulemaking, Promoting Technological
Solutions to Combat Contraband Wireless Device Use in
Correctional Facilities, 28 FCC Rcd. 6603 (2013) (“Contraband
Wireless Device NPRM”), available at
http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0
502/FCC-13-58A1.pdf.

24
it easier for wireless service providers to remotely deactivate

contraband cell phones. Id. at ¶ 3. This method does not

involve jamming the wireless signals themselves. 14

The Johnsons argue that the prohibition against

interference does not apply if the wireless service provider is

interfering with its own signals. In support, they cite two

cases for the proposition that § 333 applies only to third

parties and not the actual service providers. United States v.

Gerritsen, 571 F.3d 1001 (9th Cir. 2009); United States v.

Baxter, 841 F. Supp. 2d 378 (D. Me. 2012). Although those cases

indeed addressed claims in which third parties interfered with

wireless service, they did not hold that § 333 applied only to

third parties.

Section 333 states that “no person” shall interfere with

“any radio communications.” 47 U.S.C. § 333. The Defendants

argue that “no person” includes first parties and therefore

prohibits self-interference. A more persuasive reading of this

section of the Communications Act is to read the entire sentence

together: no person shall interfere with any radio

communications, including his or her own. The use of the word

14
Notably, Congress has passed legislation making cell
phones contraband in federal prisons but has not permitted any
jamming of wireless signals. Cell Phone Contraband Act of 2010,
Pub. L. No. 111-225, 124 Stat. 2387 (2010) (codified at 18
U.S.C. § 1791).

25
“any” includes one’s own communications. If the statute

intended to exclude self-interference, the statute would state

“any other radio communications” rather than “any radio

communications.”

In sum, it would be impossible for the 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 cell phones inside the prison. This

is the very definition of conflict preemption. Compliance with

both a putative common-law duty and federal law would be a

“physical impossibility” and therefore the former is preempted

by the Communications Act. Fla. Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 142-143 (1963).

C.

Finally, we affirm the district court’s finding that the

Johnsons’ claims would also fail due to the “speculative nature

of their allegations.” J.A. 369. In the district court’s view,

“the Johnsons’ argument suggests only a desire to conduct a

fishing expedition to determine if there is any factual basis

for asserting claims against any Defendants . . . . This is not

enough.” J.A. 370. Although we review rulings on motions to

dismiss de novo, accept all the factual allegations in the

complaint as true, and draw all reasonable inferences in the

26
Johnsons’ favor, the complaint must still meet applicable

pleading standards. Spaulding, 714 F.3d at 776. The Johnsons

have failed to allege sufficient facts to set forth a plausible

claim for relief; consequently, we affirm the district court.

“A complaint must be dismissed if it does not allege

‘enough facts to state a claim to relief that is plausible on

its face.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S.

544, 570 (2007)). A properly pleaded complaint must offer more

than “‘naked assertions’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(brackets omitted) (quoting Twombly, 550 U.S. at 557). “A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

In other words, a complaint must include “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

The Johnsons’ complaint contains the bare assertion that

“an inmate at the prison using a cellphone ordered a co-

conspirator outside of the prison to kill Captain Johnson.”

J.A. 23. The Johnsons have failed to offer any further factual

enhancement to support their claims against the Defendants. For

example, the Johnsons’ 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

27
impossible for a district court to assess the Johnsons’ claims.

See Twombly, 550 U.S. at 565 n.10 (noting that the defective

complaint “mentioned no specific time, place, or person involved

in” the alleged illegal activity); Kendall v. Visa U.S.A., Inc.,

518 F.3d 1042, 1048 (9th Cir. 2008) (complaint must “answer the

basic questions: who, did what, to whom (or with whom), where,

and when?”); see also Fed. R. Civ. P. 84 & App. Form 11

(providing a blank space for the “date” and “place” of the

injury in model complaint form for negligence). A wireless

service provider would likely be unable to determine whether it

carried the alleged call without more identifying information.

We acknowledge, however, that the recent conclusion of the

U.S. Attorney’s investigation into the attack may provide

additional information bolstering the Johnsons’ claims. The

Johnsons are free, if additional information supportive of one

or more non-preempted claims exists, to file a new lawsuit, as

the district court dismissed their complaint on this ground

without prejudice. As currently drafted, however, the complaint

resembles a prohibited fishing expedition rather than a properly

pleaded complaint. Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 8

(1st Cir. 2011).

28
 IV.

For the foregoing reasons, the judgment is

AFFIRMED.

29