complete preemption exception applies, the plaintiff’s claim is
recharacterized as a federal claim and removal is proper. Id. at
66.

Whether this case was properly removed turns on whether
Rosenberg’s fraud claim is completely preempted by the FCA. The
FCA provides:

([N]o 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, except that this paragraph

shall not prohibit a State from regulating other

terms and conditions of commercial services.

47 U.S.C. § 332(c) (3) (A). The FCA also provides a savings clause
which reads:

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.

47 U.S.C. § 414.

In Count I of his Complaint, Rosenberg alleges that the
Defendants violated the Illinois Consumer Fraud and Deceptive
Business Practices Act by “engag[{ing] in deceptive acts or
practices in the operation of its wireless network by providing

customers faulty information regarding monthly phone usage.”


CONCLUSION
For the forgoing reasons, the Court grants Rosenberg’s

petition for remand.?

ENTER:

a. WW Aare ved

GEORGE /M.)MAROVICH
UNITED/ STATES DISTRICT JUDGE

DATED: ] 13h,

2 Rosenberg’s motion to remand also includes a prayer for
fees and costs associated with the improper removal. Although
awarding these fees and costs is in this Court’s discretion, this
Court finds that such an award is unwarranted. The question of
FCA preemption raised by the facts of this case was significant
enough to sustain the defendants attempt at removal.

7


Nextel was able to increase the amount of unused minutes by
Rosenberg. It was not until one month when the timer showed that
Rosenberg had exceeded his minutes and his bill showed that he
had not that Rosenberg became aware that the timer was inaccurate
at tracking his minutes usage. Nextel’s user’s guide encouraged
use of the timer and, in fact, the timer was the only method by
which Rosenberg was able to track his usage.
DISCUSSION

In order to determine if the motion to remand should be
granted, the Court must first decide if removal was proper.
Removal to federal court is proper if the federal court would
have had jurisdiction over the originally filed case. 28 U.S.C.
§ 1441. Federal question jurisdiction exists over cases that
“arise under the Constitution, laws or treaties of the United
State.” 28 U.S.C. § 1331. As a general matter, a court
determines whether federal question jurisdiction exists by
examining the face of plaintiff's “well-pleaded” complaint, “for
‘it is a long-settled law that a cause of action arises under
federal law only when the plaintiff’s well-pleaded complaint
raises issues of federal law.’” Rice v. Panchal, 65 F.3d 637, 639

(7 Cir. 1995) (citing Metropolitan Life Ins. CO. v. Taylor, 481

U.S. 58, 63 (1987)). However, there is a recognized exception to
the well-pleaded complaint rule where Congress has completely

preempted a field of law with a federal statute. When the


(Compl. § 13) Rosenberg argues that this claim does not deal
with the entry of Nextel’s wireless service to the market or the
rates charged and that consequently his fraud claim is not
preempted by the FCA. Thus, Rosenberg concludes, the federal
court never had subject matter jurisdiction over this claim (nor
over the other two state court claims included in the Complaint)
and it should be remanded back to state court. However, the
Defendants argue that Rosenberg’s fraud claim is essentially a
claim about rates and conditions of service and as such is
completely preempted by the FCA.

The determinative issue is whether Rosenberg’s fraud claim
is properly characterized as a rate challenge. If it is, then it
is a federal claim and this case was properly removed to this

Court. Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 987

(7 Cir. 2000). Alternately, if this is a case of simple fraud
which would not affect the federal regulation of wireless
carriers, the FCA is not preemptive and no federal jurisdiction
exists. In re Long Distance Telecommunications Litig., 831 F.2d
627, 633 (6 Cir. 1998); Bastien, 205 F.3d at 988-989
(distinguishing rate and market entry claims from the fraud claim
in Long Distance); see also In re Wireless Consumers Alliance,
Inc., 15 F.C.C.R. 17,021, %27(2000) (rejecting the notion “that
non-disclosure and consumer fraud claims are in fact disguised

attacks on the reasonableness of the rate charged for the


Minute Order Form (06/97)

ad

q

Non . United States District Court, Northern District of Illinois
Name of Assigned Judge i Sitting Judge if Other
" or Magistrate Judge George M. Marovich than Assigned Judge
CASE NUMBER 00 C 6624 DATE 11/20/2001
CASE Matthew Rosenberg vs. Nextel Communications, et al.
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

ql) oO Filed motion of { use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due__. Reply to answer briefdue___.

(4) ao Ruling/Hearing on set for at

(5) Qo Status hearing{held/continued to] [set for/re-set for]on__—_—set for____at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—ss—sat_—
(7) Oo Trial{set for/re-set for]on___ at.

(8) Oo [Bench/Jury trial] [Hearing] held/continued to_ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) General Rule 21 O)FRCP4I(a)(1) 0 FRCP41(a)(2).

(10) a (Other docket entry] . ENTER MEMORANDUM OPINION AND ORDER. The Court grants
Rosenberg’s petition for remand. All other pending motions are declared moot.
(ii) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff. nov 23 2001
Notified counsel by telephone. date dockeied
vo Docketing to mail notices. ww
v Mail AO 450 form. . OS wo initials | “
Copy to judge/magistrate judge. a

“ ok date mailed notice
courtroom, gdine

JD deputy’s cee
initials

Date/time received in
central Clerk’s Office mailing deputy initials



service”). To make this distinction, a court must decide
“whether the amount charged being unreasonable, unjust, or
otherwise inappropriate needs to be considered in order to

resolve the claim.” Gilmore v. Southwestern Bell Mobile Sys.,

156 F. Supp. 2d 916, 923 (N.D. Ill. 2001).

Resolving Rosenberg’s fraud claim would not require a court
to determine whether the rate was unreasonabl, unjustly applied
or inappropriate in any way. Rather, Rosenberg has raised a non-
disclosure fraud claim which requires a showing that deceit or
misrepresentation was employed and that the deceit or
misrepresentation was material to Rosenberg’s reliance on the
timer to monitor his usage and ultimately to his decision to
remain a Nextel customer. Thus, Rosenberg’s Illinois Consumer
Fraud Acts Claim is not preempted by the FCA and is outside this
Court’s limited jurisdiction. See Cahnmann v. Sprint Corp., 133
F.3d 484, 488 (7 Cir. 1998), Long Distance, 831 F.2d at 633-34;

Gilmore, 156 F. Supp. 2d at 925; Sanderson, Thompson, Ratledge &

Zimmy v. AWACS, Inc., 958 F. Supp. 947(D. Del. 1997); In re

Comcast, 949 F. Supp. 1193, 1199-200; DeCastro v. AWACS, Inc.,
935 F. Supp 541, 550 (D.N.J. 1996); Wireless Consumers, 15

F.C.C.R. at 927.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MATTHEW ROSENBERG,
individually and on behalf of
himself and all others
similarly situated,

Plaintiff, 00 C 6624

ve Judge George M. Marovich
NEXTEL COMMUNICATIONS, INC and
MOTOROLA INC.,

miiuaal

wy

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiff Matthew Rosenberg (“Rosenberg”) filed a complaint
against Nextel Communications Inc. (“Nextel”) and Motorola Inc.
(“Motorola”) (collectively “defendants”) in the circuit court of
Cook County, Illinois. In a three-count complaint, Rosenberg
alleges that defendants violated the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 Ill. Comp. Stat. § 505/2
(“Count I”); committed breach of implied warranty of fitness for
a particular purpose (“Count II”); and committed breach of an
express warranty (“Count II”).

Nextel subsequently filed a notice of removal with the
United States District Court for the Northern District of
Illinois alleging subject matter jurisdiction based on the claim
that Count I, the fraud claim, was preempted by the Federal

Communications Act, 47 U.S.C. § 332(c) (3) (A) (“FCA”) .?

' Motorola consented to this removal. \ “


Rosenberg now moves to remand this case back to state court. For
the reasons set forth below, we grant Rosenberg’s petition.
BACKGROUND

In April of 1998, Rosenberg signed up to receive cellular
service through the Nextel National Network (“Nextel network”) .
Rosenberg paid a flat rate for a certain number of minutes each
month (at the time of the filing of the Complaint his rate was
$69.95 per month for 400 minutes of service). Initially,
Rosenberg used a Motorola i600 cellular phone manufactured for
use with the Nextel network. In February 2000, Rosenberg
switched to the Motorola 11000 plus cellular phone also
manufactured for use with the Nextel network. Both phones
contained a timer which tracks phone usage by: (1) timing a call
beginning once the call is placed (even if the call does not
connect); (2) rounding all calls to the minute (rather than by
the second); and (3) timing incoming minutes. This method of
timing was inconsistent with Nextel’s billing practices which
worked as follows: (1) calls were not billed until they were
connected; (2) calls were timed by the second, not rounded to the
next minute; and (3) users were not charged for incoming call
minutes. Thus, the timer reflected a higher number of minutes
used then Nextel actually billed. This caused Rosenberg, who was
unaware of the discrepancies in the tracking methods, to refrain
from using his phone to avoid exceeding his minutes limit before

he was ever in any danger of actually doing so. In this way,