Filed: March 28, 2005
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`_______________
`
`No. 03-1433
`_______________
`
`(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;
`CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)
`
`J. DOUGLAS PINNEY, M.D.; PATRICIA S. COLONELL, individually
`and on behalf of all others similarly situated; FRANCIS J.
`FARINA, individually and on behalf of all those similarly
`situated; GARRETT J. NAQUIN; RONALD LEBLANC; JUDITH A.
`KAUFMAN; ASHER RUBENSTEIN; CRYSTALL GILLIAM; DIMITRI MACK;
`RIEDY GIMPELSON, individually and on behalf of all others
`similarly situated; SARAH DAHLGREN, on behalf of herself and
`all others similarly situated; LINDA BARRELL; BLAYNE
`MINOGUE; BRIAN LANE BARRETT; DIANA BARRETT; DAVID C. KELLER;
`MARSHA L. KELLER,
`
`versus
`
` Plaintiffs - Appellants,
`
`NOKIA, INCORPORATED, a/k/a Nokia Mobile Phones,
`Incorporated, a/k/a Nokia Corporation; NEC AMERICA,
`INCORPORATED; ERICSSON WIRELESS COMMUNICATIONS,
`INCORPORATED, a/k/a Ericsson, Incorporated; SPRINT PCS
`LIMITED PARTNERSHIP, a/k/a Sprint PCS, a/k/a Sprint
`Spectrum, LLP, a/k/a Sprint Spectrum; AUDIOVOX
`COMMUNICATIONS CORPORATION; NEXTEL COMMUNICATIONS,
`INCORPORATED, a/k/a Nextel Communications of the
`Mid-Atlantic, Incorporated, a/k/a Nextel Partners,
`Incorporated, a/k/a Nextel; MATSUSHITA CORPORATION OF
`AMERICA, a/k/a Panasonic Corporation; PHILIPS ELECTRONICS
`NORTH AMERICA CORPORATION; QUALCOMM INCORPORATED; SAMSUNG
`ELECTRONICS AMERICA, INCORPORATED, a/k/a Samsung
`Electronics; SANYO NORTH AMERICA, INCORPORATED, a/k/a Sanyo
`Business Systems Corporation, a/k/a Sanyo North America
`Group; SONY ELECTRONICS, INCORPORATED; AT&T CORPORATION,
`a/k/a AT&T; VERIZON MARYLAND, INCORPORATED, a/k/a Verizon,
`a/k/a Verizon Wireless, formerly known as Bell Atlantic
`Maryland, Incorporated; VERIZON COMMUNICATIONS,
`
`

`
`INCORPORATED, formerly known as Bell Atlantic Corporation;
`VERIZON WIRELESS, a/k/a Nynex, a/k/a Bell Atlantic Nynex,
`a/k/a Bell Atlantic Mobile, Incorporated, a/k/a Bell
`Atlantic NYNEX Mobile; CELLCO PARTNERSHIP, d/b/a Verizon
`Wireless, formerly known as Bell Atlantic NYNEX Mobile,
`formerly known as Bell Atlantic Mobile; CINGULAR WIRELESS,
`LLC, formerly known as BellSouth Mobility, Incorporated,
`a/k/a Southwestern Bell Wireless, formerly known as
`Southwestern Bell Mobile Systems, Incorporated; CINGULAR
`WIRELESS, a/k/a Washington/Baltimore Cellular Limited
`Partnership; SBC COMMUNICATIONS, INCORPORATED; CELLULAR ONE
`GROUP, a/k/a Cellular One; VOICESTREAM WIRELESS CORPORATION;
`C.E.I., INCORPORATED, a/k/a Communications Electronics,
`a/k/a Communications Electronics, Incorporated; BALTIMORE
`BUSINESS COMMUNICATIONS, INCORPORATED; COMCAST/METROPHONE;
`RADIOFONE; POWERTEL, INCORPORATED; POWERTEL PCS,
`INCORPORATED; POWERTEL/ATLANTA, INCORPORATED; MITSUBISHI
`WIRELESS COMMUNICATIONS, INCORPORATED; MOTOROLA,
`INCORPORATED, a Delaware corporation; CELLULAR
`TELECOMMUNICATIONS AND INTERNET ASSOCIATION, a District of
`Columbia corporation; CELLULAR TELECOMMUNICATIONS INDUSTRY
`ASSOCIATION; TELECOMMUNICATIONS INDUSTRY ASSOCIATION, a/k/a
`TIA; NEXTEL PARTNERS OPERATING CORPORATION,
`
`Defendants - Appellees,
`
`and
`
`
`WESTINGHOUSE COMMUNICATIONS; SOUTHERN TELECOM, INCORPORATED,
`a/k/a Southern LINC; JOHN DOES 1-100; LGIC CORPORATION
`PANASONIC CORPORATION; SAMSUNG SDI COMPANY; SANYO
`CORPORATION; SONY CORPORATION; PLANET CELLULAR
`COMMUNICATIONS, INCORPORATED; VISITOR CELLULAR L.L.C.; BELL
`SOUTH MOBILITY; KYOCERA WIRELESS CORPORATION; MCI WORLDCOM
`COMMUNICATIONS, INCORPORATED; U.S. WEST WIRELESS, L.L.C., A
`Colorado corporation; U. S. WEST COMMUNICATIONS,
`INCORPORATED, a Colorado corporation; GTE MOBILNET OF SAN
`DIEGO, INCORPORATED, a Delaware corporation; GTE WIRELESS
`SAN DIEGO, LLC, a California Limited Liability; CELLULAR
`CARRIERS ASSOCIATION OF CALIFORNIA, a California
`corporation; AB CELLULAR HOLDINGS, LLC, d/b/a LA Cellular,
`d/b/a Los Angeles Cellular Telephone Company
`
`Defendants.
`
`______________
`
`O R D E R
`______________
`
`

`
`The court amends its opinion filed March 16, 2005, as
`
`follows:
`
`On Page 6, line 16, substitute the name “Paul Walter” for
`
`the name “Paul F. Walter.”
`
`On Page 7, add at line 12, John A. Stewart, Jr., HULSE &
`
`WANEK, New Orleans, Louisiana; Mark J. Jeansonne, MILLING,
`
`BENSON, WOODWARD, New Orleans, Louisiana, for Radiofone, Inc.
`
`For the Court
`
`/s/ Patricia S. Connor
`____________________________
` Clerk
`
`

`
`PUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`J. DOUGLAS PINNEY, M.D.; PATRICIA
`S. COLONELL, individually and on
`behalf of all others similarly
`situated; FRANCIS J. FARINA,
`individually and on behalf of all
`those similarly situated; GARRETT J.
`NAQUIN; RONALD LEBLANC; JUDITH A.
`KAUFMAN; ASHER RUBENSTEIN;
`CRYSTALL GILLIAM; DIMITRI MACK;
`RIEDY GIMPELSON, individually and
`on behalf of all others similarly
`situated; SARAH DAHLGREN, on
`behalf of herself and all others
`similarly situated; LINDA BARRELL;
`BLAYNE MINOGUE; BRIAN LANE
`BARRETT; DIANA BARRETT; DAVID C.
`KELLER; MARSHA L. KELLER,
`Plaintiffs-Appellants,
`v.
`NOKIA, INCORPORATED, a/k/a Nokia
`Mobile Phones, Incorporated, a/k/a
`Nokia Corporation; NEC AMERICA,
`INCORPORATED; ERICSSON WIRELESS
`COMMUNICATIONS, INCORPORATED,
`a/k/a Ericsson, Incorporated; SPRINT
`PCS LIMITED PARTNERSHIP, a/k/a
`Sprint PCS, a/k/a Sprint Spectrum,
`LLP, a/k/a Sprint Spectrum;
`AUDIOVOX COMMUNICATIONS
`CORPORATION; NEXTEL
`COMMUNICATIONS, INCORPORATED,
`
`No. 03-1433
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`
`
`PINNEY v. NOKIA, INC.
`
`a/k/a Nextel Communications of the
`Mid-Atlantic, Incorporated, a/k/a
`Nextel Partners, Incorporated, a/k/a
`Nextel; MATSUSHITA CORPORATION OF
`AMERICA, a/k/a Panasonic
`Corporation; PHILIPS ELECTRONICS
`NORTH AMERICA CORPORATION;
`QUALCOMM INCORPORATED; SAMSUNG
`ELECTRONICS AMERICA,
`INCORPORATED, a/k/a Samsung
`Electronics; SANYO NORTH AMERICA,
`INCORPORATED, a/k/a Sanyo Business
`Systems Corporation, a/k/a Sanyo
`North America Group; SONY
`ELECTRONICS, INCORPORATED; AT&T
`CORPORATION, a/k/a AT&T; VERIZON
`MARYLAND, INCORPORATED, a/k/a
`Verizon, a/k/a Verizon Wireless,
`formerly known as Bell Atlantic
`Maryland, Incorporated; VERIZON
`COMMUNICATIONS, INCORPORATED,
`formerly known as Bell Atlantic
`Corporation; VERIZON WIRELESS,
`a/k/a Nynex, a/k/a Bell Atlantic
`Nynex, a/k/a Bell Atlantic Mobile,
`Incorporated, a/k/a Bell Atlantic
`NYNEX Mobile; CELLCO
`PARTNERSHIP, d/b/a Verizon
`Wireless, formerly known as Bell
`Atlantic NYNEX Mobile, formerly
`known as Bell Atlantic Mobile;
`CINGULAR WIRELESS, LLC, formerly
`known as BellSouth Mobility,
`Incorporated, a/k/a Southwestern
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`PINNEY v. NOKIA, INC.
`
`3
`
`
`
`Bell Wireless, formerly known as
`Southwestern Bell Mobile Systems,
`Incorporated; CINGULAR WIRELESS,
`a/k/a Washington/Baltimore Cellular
`Limited Partnership; SBC
`COMMUNICATIONS, INCORPORATED;
`CELLULAR ONE GROUP, a/k/a Cellular
`One; VOICESTREAM WIRELESS
`CORPORATION; C.E.I., INCORPORATED,
`a/k/a Communications Electronics,
`a/k/a Communications Electronics,
`Incorporated; BALTIMORE BUSINESS
`COMMUNICATIONS, INCORPORATED;
`COMCAST/METROPHONE; RADIOFONE;
`POWERTEL, INCORPORATED; POWERTEL
`PCS, INCORPORATED;
`POWERTEL/ATLANTA, INCORPORATED;
`MITSUBISHI WIRELESS
`COMMUNICATIONS, INCORPORATED;
`MOTOROLA, INCORPORATED, a
`Delaware corporation; CELLULAR
`TELECOMMUNICATIONS AND INTERNET
`ASSOCIATION, a District of Columbia
`corporation; CELLULAR
`TELECOMMUNICATIONS INDUSTRY
`ASSOCIATION; TELECOMMUNICATIONS
`INDUSTRY ASSOCIATION, a/k/a TIA;
`NEXTEL PARTNERS OPERATING
`CORPORATION,
`
`Defendants-Appellees,
`and
`WESTINGHOUSE COMMUNICATIONS;
`SOUTHERN TELECOM, INCORPORATED,
`a/k/a Southern LINC; JOHN DOES
`1-100; LGIC CORPORATION;
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`4
`
`
`
`PINNEY v. NOKIA, INC.
`
`PANASONIC CORPORATION; SAMSUNG
`SDI COMPANY; SANYO CORPORATION;
`SONY CORPORATION; PLANET
`CELLULAR COMMUNICATIONS,
`INCORPORATED; VISITOR CELLULAR
`L.L.C.; BELL SOUTH MOBILITY;
`KYOCERA WIRELESS CORPORATION;
`MCI WORLDCOM COMMUNICATIONS,
`INCORPORATED; U.S. WEST WIRELESS,
`L.L.C., A Colorado corporation; U.
`S. WEST COMMUNICATIONS,
`INCORPORATED, a Colorado
`corporation; GTE MOBILNET OF SAN
`DIEGO, INCORPORATED, a Delaware
`corporation; GTE WIRELESS SAN
`DIEGO, LLC, a California Limited
`Liability; CELLULAR CARRIERS
`ASSOCIATION OF CALIFORNIA, a
`California corporation; AB
`CELLULAR HOLDINGS, LLC, d/b/a LA
`Cellular, d/b/a Los Angeles Cellular
`Telephone Company,
`
`Defendants.
`
`Appeal from the United States District Court
`for the District of Maryland, at Baltimore.
`Catherine C. Blake, District Judge.
`(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;
`CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)
`
`Argued: October 1, 2004
`
`Decided: March 16, 2005
`
`Before LUTTIG and MICHAEL, Circuit Judges, and
`Jackson L. KISER, Senior United States District Judge
`for the Western District of Virginia, sitting by designation.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`PINNEY v. NOKIA, INC.
`
`5
`
`Reversed and remanded by published opinion. Judge Michael wrote
`the opinion, in which Judge Luttig joined. Senior Judge Kiser wrote
`a dissenting opinion.
`
`COUNSEL
`
`ARGUED: Michael R. Allweiss, LOWE, STEIN, HOFFMAN,
`ALLWEISS & HAUVER, L.L.P., New Orleans, Louisiana, for
`Appellants. Kenneth Winston Starr, KIRKLAND & ELLIS, L.L.P.,
`Washington, D.C., for Appellees. ON BRIEF: H. Russell Smouse,
`John C. M. Angelos, Glenn E. Mintzer, LAW OFFICES OF PETER
`G. ANGELOS, P.C., Baltimore, Maryland; H. Thomas Howell,
`HOWELL & GATELY, Baltimore, Maryland, for Appellants. Garrett
`B. Johnson, Terrence J. Dee, Michael B. Slade, KIRKLAND &
`ELLIS, L.L.P., Chicago, Illinois, for Motorola, Inc. Seamus C. Duffy,
`Mary Catherine Roper, DRINKER, BIDDLE & REATH, L.L.P.,
`Philadelphia, Pennsylvania, for Cingular Wireless, Inc., SBC Com-
`munications, Inc. Mark F. Horning, Thomas M. Barba, STEPTOE &
`JOHNSON, Washington, D.C., for AT&T Corp., AT&T Wireless
`PCS, LLC and AT&T Wireless Services, Inc. John H. Beisner, Brian
`P. Brooks, O’MELVENY & MEYERS, L.L.P., Washington, D.C., for
`Verizon Wireless, Cellco Partnership. Paul F. Strain, VENABLE,
`BAETJER AND HOWARD, L.L.P., Baltimore, Maryland; M. King
`Hill, III, VENABLE, BAETJER AND HOWARD, L.L.P., Towson,
`Maryland; Jane Fugate Thorpe, Scott A. Elder, ALSTON & BIRD,
`L.L.P., Atlanta, Georgia, for Cellco Partnership formerly d/b/a Bell
`Atlantic Mobile and Bell Atlantic Nynex Mobile d/b/a Verizon Wire-
`less, Verizon Maryland, Inc. a/k/a Verizon Wireless, a/k/a Verizon,
`f/k/a Bell Atlantic-Maryland, Inc., Verizon Communications, Inc.,
`f/k/a Bell Atlantic Corporation, Verizon Wireless, a/k/a Bell Atlantic
`Nynex, a/k/a Nynex, a/k/a Bell Atlantic Mobile, Inc. f/k/a Bell Atlan-
`tic Nynex Mobile, Inc. Thomas Watson, Curtis Renner, WATSON &
`RENNER, Washington, D.C., for Cingular Wireless, L.L.C. Michael
`Esher Yaggy, Jeffrey M. Yeatman, PIPER RUDNICK, L.L.P., Balti-
`more, Maryland, for Motorola, Inc. Steven M. Laduzinsky, Scott A.
`Hanfling, KANE, LADUZINSKY & MENDOZA, LTD., Chicago,
`Illinois; Robert B. Green, IRWIN, GREEN & DEXTER, L.L.P.,
`Towson, Maryland, for Cellular Telecommunications and Internet
`
`

`
`6
`
`PINNEY v. NOKIA, INC.
`
`Association. Michael H. O’Brien, Jason P. Sultzer, WILSON,
`ELSER, MOSKOWITZ, EDELMAN & DICKER, White Plains, New
`York; Laura N. Steel, WILSON, ELSER, MOSKOWITZ, EDEL-
`MAN & DICKER, Washington, D.C.; John B. Isbister, Harold M.
`Walter, TYDINGS & ROSENBERG, L.L.P., Baltimore, Maryland,
`for Samsung Electronics America, Inc., a/k/a Samsung Electronics.
`Paul S. Schleifman, SHOOK, HARDY & BACON, L.L.P., Washing-
`ton, D.C.; J. Stan Sexton, Michael D. Moeller, SHOOK, HARDY &
`BACON, L.L.P., Kansas City, Missouri, for Sprint PCS Limited Part-
`nership, a/k/a Sprint Spectrum; Sprint Spectrum, L.L.C., d/b/a Sprint
`PCS. Charles P. Goodell, James A. Frederick, GOODELL, DEV-
`RIES, LEECH & DANN, Baltimore, Maryland, for North America,
`Inc. a/k/a Sanyo North America Group, Sanyo Corporation, Sanyo
`Business Systems Corporation. Steven M. Zager, Lance Lackey, Rob-
`ert Pemberton, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.,
`Houston, Texas; Paul Walter, TYDINGS AND ROSENBERG,
`L.L.P., Baltimore, Maryland, for Nokia, Inc., a/k/a Nokia Mobile
`Phones, Inc., and Nokia Corporation. Ray M. Aragon, Raymond B.
`Biagini, MCKENNA, LONG & ALDRIDGE, L.L.P., Washington,
`D.C., for Electronics North America Corporation. Eugene A. Schoon,
`Tamar B. Kelber, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P.,
`Chicago, Illinois, for Voicestream Wireless Corporation a/k/a Voice-
`stream Wireless, Powertel, Inc., Powertel PCS, Inc., Powertel/Atlanta,
`Inc. Patrick R. Buckler, Walter T. Dudley, MCGUIREWOODS,
`L.L.P., Baltimore, Maryland; Edward M. Crane, David L. Hanselman,
`SKADDEN, ARPS, SLATE, MEAGHER & FLOM, Chicago, Illi-
`nois, for Nextel Communications of the Mid-Atlantic, Inc., Nextel of
`New York, Inc., and Nextel South Corp. James P. Ulwick, KRAMON
`& GRAHAM, P.A., Baltimore, Maryland, for NEC America, Inc.
`Francis A. Citera, GREENBERG & TRAURIG, P.C., Chicago, Illi-
`nois, for Electronics Inc., Qualcomm Incorporated. Russell J. Rogers,
`Lawrence A. Slovensky, MCKENNA, LONG & ALDRIDGE, L.L.P.,
`Atlanta, Georgia, for Partners Operating Corp. and Nextel Partners,
`Inc. Paul D. Krause, Laura N. Steel, WILSON, ELSER, MOS-
`KOWITZ, EDLEMAN & DICKER, L.L.P., Washington, D.C., for
`Matsushita Corporation of America, a/k/a Panasonic Corporation, and
`Sanyo North America, Inc. a/k/a Sanyo North America Group; Sanyo
`Corporation; Sanyo Business Systems, Corporation. Paul Vishny,
`Paul Freehling, D’ANCONA & PFLAUM, L.L.C., Chicago, Illinois,
`
`

`
`PINNEY v. NOKIA, INC.
`7
`for Telecommunications Industry Association. Mark H. Kolman, Leslie R. Cohen,
`DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C., for
`Audiovox Communications Corp. Charles L. Perry, ANDREWS & KURTH, L.L.P.,
`Dallas, Texas, for Cellular One Group. Matthew T. Covell, Kevin B. Getzendanner,
`ARNALL, GOLDEN & GREGORY, L.L.P., Atlanta, Georgia, for Mitsubishi
`Wireless Communications, Inc. Daniel S. Reinhardt, Steven J. Hewitson, TROUTMAN,
`SANDERS, L.L.P., Atlanta, Georgia, for Southern Telecom, Inc. Gregg L. Bernstein,
`Denis J. Charlesworth, MARTIN, SNYDER & BERNSTEIN, P.A., Baltimore,
`Maryland; Charles L. Babcock, David T. Moran, James M. McCown, Ryan C. Wirtz,
`JACKSON WALKER, L.L.P., Dallas, Texas, for Ericsson Inc. Maureen Ellen
`Murphy, MURPHY & MURPHY, L.L.C., Catonsville, Maryland, for Baltimore
`Business Communications, Inc. John A. Stewart, Jr., HULSE & WANEK, New
`Orleans, Louisiana; Mark J. Jeansonne, MILLING, BENSON, WOODWARD,
`New Orleans, Louisiana, for Radiofone, Inc.
`
`
`OPINION
`
`MICHAEL, Circuit Judge:
`
`This multidistrict litigation includes five class actions brought ini-
`tially in the state courts of Georgia, Louisiana, Maryland, New York,
`and Pennsylvania. The plaintiffs sue Nokia Inc. and other entities
`(collectively, "Nokia") involved in the manufacture and sale of wire-
`less telephones. The plaintiffs claim that wireless telephones emit an
`unsafe level of radio frequency radiation and that Nokia has hidden
`this fact from consumers. Nokia removed the five cases to various
`federal courts, and the Judicial Panel on Multidistrict Litigation
`(JPML) transferred the cases to the United States District Court for
`the District of Maryland (the district court) for consolidated pretrial
`proceedings. The district court denied the plaintiffs’ motion to remand
`four of the cases to state court and then dismissed all five cases on
`the ground that the plaintiffs’ state law claims are preempted by the
`Federal Communications Act of 1934 (FCA), 47 U.S.C. § 151 et seq.
`The plaintiffs appeal both rulings. Because federal subject matter
`jurisdiction is lacking in four of the cases, we reverse the district
`court’s order denying the motion to remand those cases. There is
`diversity jurisdiction over the fifth case, and because the state law
`claims are not preempted, we reverse the order dismissing that case.
`
`

`
`8
`
`PINNEY v. NOKIA, INC.
`
`I.
`
`A wireless telephone (commonly called a cell phone) is actually a
`radio containing a low power transmitter. When a wireless telephone
`is turned on, it searches for a base station (usually a tower) within
`range. A base station is a fixed transmitter containing antennae and
`electronic equipment that communicates with the transmitter in a
`wireless telephone. If a wireless telephone finds a base station within
`range, the telephone identifies itself by transmitting its Mobile Identi-
`fication Number (MIN), its System Identification Code (SID), and its
`Electronic Serial Number (ESN). The ESN is a number permanently
`programmed into the telephone when it is manufactured. The SID and
`the MIN are programmed into the wireless telephone when a cus-
`tomer purchases a service plan and the telephone is activated. The
`base station relays the identifying information (MIN, SID, and ESN)
`to the local mobile telephone switching office (MTSO), which con-
`firms that the telephone is assigned to a valid customer. An MTSO
`is a sophisticated computer that controls all of the base stations in a
`particular area for the purpose of coordinating radio transmissions to
`and from wireless telephones. Once an MTSO confirms that a wire-
`less telephone is assigned to a valid customer, the MTSO assigns a
`frequency on which the user may communicate.
`
`Base stations receiving and routing transmissions from wireless
`telephones have a relatively small transmission range because they
`have low power transmitters. Accordingly, to provide continuous
`wireless telephone service coverage over an extended area, numerous
`base stations must be built. Cities and regions are divided into cells,
`typically ten square miles, each containing a base station. As a user
`moves out of one cell (and thus out of range of the base station in that
`cell) and into an adjoining cell, the MTSO hands the signal off to the
`base station in the adjoining cell. Marshall Brain & Jeff Tyson, How
`Cell Phones Work, at http://www.howstuffworks.com/cell-phone.htm/
`printable (last visited January 24, 2005).
`
`Wireless telephones emit a low level of radio frequency (RF) radia-
`tion, a form of electromagnetic energy, from their antennae when they
`communicate with base stations. See Cell Phone Facts: Consumer
`Information on Wireless Phones, at http://www.fda.gov/cellphones/
`qa.html (last updated July 29, 2003). While it is well established that
`
`

`
`PINNEY v. NOKIA, INC.
`
`9
`
`exposure to high levels of RF radiation can cause adverse health
`effects, there is no scientific consensus on the effects of low level
`exposure. The Federal Communications Commission (FCC) requires
`all transmitters that emit RF radiation to be authorized by the agency
`before they are marketed or sold. See 47 C.F.R. §§ 2.801, 2.803
`(2004). Pursuant to the National Environmental Policy Act of 1969,
`42 U.S.C. § 4321 et seq., which requires agencies to consider the
`impact of their actions on the quality of the human environment, the
`FCC has promulgated rules that limit the amount of RF radiation that
`FCC-regulated transmitters (including wireless telephones) may emit.
`In re Guidelines for Evaluating the Envtl. Effects of Radiofrequency
`Radiation, 11 FCC Rcd. 15123, 15125 (1996) (In re Guidelines); see
`47 C.F.R. §§ 1.1307, 1.1310, 2.1091, 2.1093.
`
`The plaintiffs brought five class actions in state courts against
`Nokia, claiming, among other things, that (1) wireless telephones emit
`an unsafe level of RF radiation and (2) Nokia, in knowing this, negli-
`gently and fraudulently endangered the consuming public by market-
`ing wireless telephones without headsets. According to the plaintiffs,
`they were exposed to the risk of adverse biological effects from the
`RF radiation emitted by their wireless telephones when they used the
`telephones without headsets. The plaintiffs purport to represent wire-
`less telephone users who have not been diagnosed with brain- or eye-
`related diseases and who were not provided headsets when they
`leased or bought their wireless telephones. Compensatory damages
`are sought in an amount sufficient to buy a headset for each class
`member who lacks one and to reimburse each class member who has
`already bought one. For class members with wireless telephones that
`are not headset-compatible, an injunction is sought to require Nokia
`to provide them with telephones that can be used with a headset. The
`plaintiffs also seek punitive damages, costs, and attorneys’ fees.
`
`After these cases were filed in the five state courts, Nokia removed
`them, pursuant to 28 U.S.C. § 1447, to the five appropriate federal
`district courts. On October 31, 2001, the JPML transferred the five
`cases to the District of Maryland for consolidated or coordinated pre-
`trial proceedings. On January 7, 2002, the plaintiffs in four of the
`cases — those with lead plaintiffs named Pinney, Farina, Gilliam, and
`Gimpelson (collectively, the "Pinney plaintiffs") — filed a consoli-
`dated motion to remand their cases to the state courts in which they
`
`

`
`10
`
`PINNEY v. NOKIA, INC.
`
`originated. The plaintiffs in the fifth case (the "Naquin plaintiffs") did
`not join this motion because there was federal subject matter jurisdic-
`tion over their case based on diversity of citizenship. On June 21,
`2002, the district court denied the Pinney plaintiffs’ motion to remand
`on the ground that their claims necessarily depend on the resolution
`of a substantial federal question. According to the district court, the
`claims are a disguised attack on the FCC’s RF radiation standards,
`and resolution of the claims would require the court to rule on the
`validity of those standards.
`
`After remand was denied, Nokia filed a consolidated motion to dis-
`miss for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), on the
`ground of federal preemption. On March 5, 2003, the district court
`granted Nokia’s motion on the basis that the plaintiffs’ claims are pre-
`empted by the FCA. More specifically, the district court concluded
`that the relief sought by the plaintiffs in all five cases conflicts with
`Congress’s goal of achieving national uniformity in RF radiation
`emission levels for all wireless telecommunications equipment. The
`plaintiffs appeal the district court’s orders.
`
`II.
`
`We turn first to the district court’s order denying the Pinney plain-
`tiffs’ consolidated motion to remand their four cases to state court.
`Federal removal jurisdiction may be exercised over state court actions
`"of which the district courts of the United States have original juris-
`diction." 28 U.S.C. § 1441(a). The original jurisdiction of the district
`courts includes jurisdiction over "all civil actions arising under the
`Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
`The propriety of Nokia’s removal of the Pinney plaintiffs’ state court
`cases depends on whether the claims "aris[e] under" federal law. See
`Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
`Cir. 1994). We must strictly construe our removal jurisdiction
`because removal "raises significant federalism concerns." Id. "If it
`appears before final judgment that a case was not properly removed,
`because it was not within the original jurisdiction of the United States
`district courts, the district court must remand it to the state court from
`which it was removed." Franchise Tax Bd. of Cal. v. Constr. Labor-
`er’s Vacation Trust, 463 U.S. 1, 8 (1983) (citing 28 U.S.C. §
`1447(c)).
`
`

`
`PINNEY v. NOKIA, INC.
`
`11
`
`We begin with the issue of whether the Pinney plaintiffs’ claims
`arise under federal law pursuant to the substantial federal question
`doctrine. We then address whether their claims arise under federal
`law pursuant to the doctrine of complete preemption. We ultimately
`conclude that the claims of the Pinney plaintiffs do not arise under
`federal law by reason of either doctrine. Accordingly, the district
`court lacked jurisdiction over these claims, and the court erred in
`denying the Pinney plaintiffs’ consolidated motion to remand their
`cases to state court.
`
`A.
`
`In determining whether a plaintiff’s claim arises under federal law,
`we apply the well-pleaded complaint rule, which holds that courts
`"ordinarily . . . look no further than the plaintiff’s [properly pleaded]
`complaint in determining whether a lawsuit raises issues of federal
`law capable of creating federal-question jurisdiction under 28 U.S.C.
`§ 1331." Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996).
`Thus, in examining the complaint, our first step is to "discern whether
`federal or state law creates the cause of action." Mulcahey, 29 F.3d
`at 151; see also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th
`Cir. 2004) ("The vast majority of lawsuits ‘arise under the law that
`creates the cause of action.’") (quoting Am. Well Works Co. v. Layne
`& Bowler Co., 241 U.S. 257, 260 (1916)). If federal law creates a
`plaintiff’s claim, then removal is proper. Mulcahey, 29 F.3d at 151.
`The general rule, of course, is that a plaintiff is the "master of the
`claim," and he may "avoid federal jurisdiction by exclusive reliance
`on state law" in drafting his complaint. Caterpillar Inc. v. Williams,
`482 U.S. 386, 392 (1987). Here, it is undisputed that state law creates
`the claims asserted by the Pinney plaintiffs, but this does not end our
`inquiry. We must also determine whether these cases fall within the
`small class of "cases in which a well-pleaded complaint establishes
`. . . that the plaintiff’s right to relief necessarily depends on resolution
`of a substantial question of federal law, in that federal law is a neces-
`sary element of one of the well-pleaded . . . claims." Christianson v.
`Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (quoting
`Franchise Tax Bd., 463 U.S. at 13, 27-28) (internal quotation marks
`and citations omitted). Under the substantial federal question doctrine,
`"a defendant seeking to remove a case in which state law creates the
`plaintiff’s cause of action must establish two elements: (1) that the
`
`

`
`12
`
`PINNEY v. NOKIA, INC.
`
`plaintiff’s right to relief necessarily depends on a question of federal
`law, and (2) that the question of federal law is substantial." Dixon,
`369 F.3d at 816. If the defendant fails to establish either of these ele-
`ments, the claim does not arise under federal law pursuant to the sub-
`stantial federal question doctrine, and removal cannot be justified
`under this doctrine. Id.
`
`A plaintiff’s right to relief necessarily depends on a question of
`federal law when "it appears that some . . . disputed question of fed-
`eral law is a necessary element of one of the well-pleaded state
`claims." Franchise Tax Bd., 463 U.S. at 13. If a plaintiff can establish,
`without the resolution of an issue of federal law, all of the essential
`elements of his state law claim, then the claim does not necessarily
`depend on a question of federal law. See id. at 13-14; see also Dixon,
`369 F.3d at 817 ("[I]f the plaintiff can support his claim with even
`one theory that does not call for an interpretation of federal law, his
`claim does not ‘arise under’ federal law for purposes of § 1331.").
`This principle is illustrated in Franchise Tax Board. There, the
`Supreme Court found no substantial federal question when a Califor-
`nia tax agency attempted to enforce a levy on funds held in trust for
`several taxpayers under an ERISA-covered benefit plan. 463 U.S. at
`13-14. The claim did not necessarily depend on a resolution of federal
`law because "California law establishe[d] a set of conditions, without
`reference to federal law, under which a tax levy may be enforced; fed-
`eral law bec[ame] relevant only by way of a defense to an obligation
`created entirely by state law, and then only if [the state agency] ha[d]
`made out a valid claim for relief under state law." Id. at 13. "[I]t has
`been well-settled law," the Court noted, "that a case may not be
`removed to federal court on the basis of a federal defense, including
`the defense of pre-emption, even if the defense is anticipated in the
`plaintiff’s complaint, and even if both parties admit that the defense
`is the only question truly at issue in the case." Id. at 14.
`
`We now examine the claims in the complaints filed by the Pinney
`plaintiffs. We note parenthetically that the district court allowed these
`plaintiffs to amend their complaints after it denied their motion to
`remand. Because amendment occurred after removal, we look at the
`original complaints rather than the amended complaints in determin-
`ing whether removal was proper. See Pullman Co. v. Jenkins, 305
`U.S. 534, 537 (1939). The Pinney plaintiffs assert seven claims in
`
`

`
`PINNEY v. NOKIA, INC.
`
`13
`
`their original complaints. They first allege that Nokia is strictly liable
`for placing a defectively designed product into the stream of com-
`merce. These claims are brought under the laws of Georgia, Mary-
`land, New York, and Pennsylvania. Under the laws of all four states,
`a manufacturer (and sometimes a seller) is strictly liable for selling a
`defectively designed product that causes personal injury. Georgia,
`Maryland, and New York assess whether a product suffers from a
`design defect by using the risk-utility balancing test. Under this test
`a fact-finder must determine whether the manufacturer acted reason-
`ably in choosing a particular product design, given the probability and
`magnitude of the risk, the usefulness of the product in its particular
`condition, and the burden on the manufacturer to eliminate the risk.
`See Banks v. ICI Ams., Inc., 450 S.E.2d 671, 673-74 (Ga. 1994); Nis-
`san Motor Co. v. Nave, 740 A.2d 102, 118 (Md. Ct. Spec. App.
`1999); Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208-09
`(N.Y. 1983). Under Pennsylvania law a product suffers from a design
`defect if it lacks a component necessary to make it safe for its
`intended use. See Harsh v. Petroll, 840 A.2d 404, 416-17 (Pa. 2003).
`
`Second, the Pinney plaintiffs allege that Nokia is strictly liable for
`its failure to warn about the adverse health risks associated with wire-
`less telephones. These claims are brought under the laws of Georgia,
`Maryland, New York, and Pennsylvania. According to these laws,
`when a manufacturer or a seller knows or should have known of the
`latent danger of a product and fails to warn the consuming public, the
`manufacturer or seller is strictly liable for injuries caused by the dan-
`ger while the product is used in a foreseeable manner. See Hunt v.
`Harley-Davidson Motor Co., 248 S.E.2d 15, 16 (Ga. Ct. App. 1978);
`Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 639 (Md. 1992); Ras-
`telli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225 (N.Y.
`1992); Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997).
`
`Third, the Pinney plaintiffs allege that Nokia is liable for violating
`various state consumer protection statutes. These claims are brought
`under the laws of Maryland, New York, and Pennsylvania, where the
`relevant statutes allow a plaintiff to recover for losses or injuries sus-
`tained when a merchant engages in deceptive trade practices. See Md.
`Code Ann., Com. Law II, § 13-408; N.Y. Gen. Bus. Law § 349(h)
`(McKinney); 73 Pa. Cons. Stat. § 201-9.2. These statutes generally
`require a plaintiff to prove either (1) that the defendant made materi-
`
`

`
`14
`
`PINNEY v. NOKIA, INC.
`
`ally false or misleading statements about its product that deceived, or
`had the tendency to deceive, consumers, or (2) that the defendant
`failed to state a material fact with respect to its product, and this fail-
`ure deceived, or had the tendency to deceive, consumers. See Md.
`Code Ann., Com. Law II, § 13-301(1), (2)(i), (3), (9)(i); N.Y. Gen.
`Bus. Law § 350-a(1); 73 Pa. Cons. Stat. § 201-2(4)(v), (vii), (ix),
`(xxi).
`
`Fourth, the Pinney plaintiffs allege that Nokia breached an implied
`warranty of merchantability by selling and distributing unreasonably
`dangerous wireless telephones. These claims are brought under the
`laws of Georgia, Maryland, New York, and Pennsylvania. To make
`out a claim for breach of this implied warranty, a plaintiff must estab-
`lish that a product is not of merchantable quality and that he suffered
`an injury as a result. A product is not of merchantable quality when
`it is not fit for the ordinary purposes for which it is used. See Wilson
`v. J & L Melton, Inc., 606 S.E.2d 47, 49 n.1 (Ga. Ct. App. 2004);
`Ford Motor Co. v. Gen. Acc. Ins. Co., 779 A.2d 362, 370 n.13 (Md.
`2001); Denny v. Ford Motor Co., 662 N.E.2d 730, 736 (N.Y. 1995);
`Phillips v. Cricket Lighters, 852 A.2d 365, 370-71 (Pa. Super. Ct.
`2004). In determining whether a product is of merchantable quality,
`the fact-finder focuses on the "expectations for the performance of the
`product when used in the customary, usual, and reasonably foresee-
`able manners." Denny, 662 N.E.2d at 736.
`
`Fifth, the Pinney plaintiffs allege that Nokia was negligent (1) in
`failing to conduct adequate and appropriate scientific research on the
`adverse health effects of exposure to RF radiation from wireless tele-
`phones, (2) in misreprese