Sheppard v. Google Inc.
ORDER granting 17 Motion to Remand and REMANDING CASE TO STATE COURT (Little River County Circuit Court). Signed by Honorable Susan O. Hickey on December 6, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CASE NO. 4:12-CV-04022
Before the Court is Plaintiff’s Motion to Remand. (ECF No. 17). Google has responded
(ECF No. 21), Plaintiff has replied (ECF Nos. 23 & 45), and Google has sur-replied. (ECF No.
32). The Court has also considered the amicus brief filed by the State of Arkansas. (ECF No. 43).
The matter is ripe for the Court’s consideration. For the following reasons, the motion will be
Plaintiff filed this suit in Little River County Circuit Court on February 1, 2012. Her case
concerns Google’s free email service, Gmail. Plaintiff is not a gmail user, but she alleges that
when she emails someone who is a Gmail user, Google “takes data from” her email and uses it to
target ads to the email recipient based on the content of her email. (ECF No. 3, at 2). This, she
argues, violates her property interest in her email content. She further contends that Google’s
practice is not excused by any consent from the intended recipient because, until the intended
At Plaintiff’s request, her claims against Yahoo! have been dismissed. (ECF No. 62). Even if they had not been
dismissed, Plaintiff’s claims against Yahoo! would be irrelevant to removal jurisdiction, because jurisdiction is
measured at the time of removal. See Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 789 (8th Cir. 2012)
(internal quotations omitted) (jurisdiction is measured at the time of removal). Therefore, although the Court has
considered Yahoo!’s responses to Plaintiff’s remand motion (ECF Nos. 40 & 50), Plaintiff’s claims against Yahoo!
are not determinative of whether removal jurisdiction exists.
recipient receives the email, the recipient lacks authority to consent to Google taking the email’s
Plaintiff sued for a declaratory judgment proclaiming the content of her emails to be her
property, at least until the email is opened by the recipient. She asks for further relief conditioned
on that proclamation, specifically for “the Court to order Google to show cause why further relief
should not be granted forthwith, to include a demonstration by Google as to why future acts
adverse to Plaintiff’s property interests would not amount to” conversion, theft, and other
violations of Arkansas computer laws. (ECF No. 3, at 5). Regardless of what relief she seeks,
Plaintiff “expressly limits the value of her declaratory relief and any supplemental relief
thereafter sought to less than $75,000.” (ECF No. 3, at 2).
Google removed the case to this Court on March 9, 2012. Google makes three arguments
for federal-court jurisdiction over this otherwise state-court case: 1) Plaintiff’s claims implicate
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511 et seq. (2006), and are
therefore completely preempted; 2) Plaintiff’s claims implicate the ECPA and therefore raise
substantial federal-law questions; and 3) Plaintiff’s claims are worth more than $75,000 and she
is diverse from Google and therefore the Court has diversity jurisdiction.
Plaintiff now moves the Court to remand this case to Little River County Circuit Court
because none of Google’s jurisdiction arguments are availing.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). A party must successfully allege specific criteria before a
federal court may retain jurisdiction over a case. See generally 13 Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3522 (2d ed. 1984 & Supp.
2008). A defendant may remove a case from state court to federal court only if the defendant
shows that the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a).
Original federal-court jurisdiction exists when the case involves a federal question or
when the parties are diverse and a certain amount is at stake in the case. 28 U.S.C. §§ 1331;
1332. The party removing a case to federal court bears the burden of proving that federal
jurisdiction exists. Carson v. Dunham, 121 U.S. 421, 426 (1887); Bell v. Hershey Co., 557 F.3d
953, 956 (8th Cir. 2009). Federal jurisdiction is determined by plaintiff’s pleadings at the time of
removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939); Colorado Life Co. v. Steele, 95 F.2d
535, 537 (8th Cir. 1938); Wang v. Pacific Cycle, Inc., 530 F. Supp. 2d 1048, 1050 (S.D. Iowa
2008). Once a case is removed to federal court, a plaintiff may move to remand the case to state
court if there is a defect in the removal process or if the federal court lacks subject-matter
jurisdiction. 28 U.S.C. § 1447(c). The court's removal jurisdiction is strictly construed, and all
doubts are resolved in favor of remand. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968
(8th Cir. 2007).
Google argues that the Court has federal-question jurisdiction over this case because
Plaintiff’s claims are completely preempted and because the claims present a substantial question
of federal law. Google also argues that the Court has diversity jurisdiction over this case because
the parties are diverse and Plaintiff’s promise not to seek more than the jurisdictional minimum
is unavailing. The Court will address each of Google’s arguments in turn.
Google’s primary argument is that the Court has federal-question jurisdiction over this
case. Google argues that Plaintiff’s suit is essentially federal because the suit implicates the
ECPA, a federal statute. That implication, Google argues, gives rise to complete preemption and
to a substantial federal question, both of which create federal-question jurisdiction.
Congress passed the Electronic Communications Privacy Act in 1986 to protect the
privacy of electronic communications. Electronic Communications Privacy Act of 1986, Pub. L.
No. 99–508, § 1, 100 Stat. 1848 (1986); Quon v. Arch Wireless Operating Co., 309 F. Supp. 2d
1204, 1207 (C.D. Cal. 2004). Title I of the ECPA amended the Wiretap Act and Title II created
the Stored Communications Act (“SCA”).2 United States v. Steiger, 318 F.3d 1039, 1046–47
(11th Cir. 2003). The ECPA is a criminal statute that allows civil enforcement. 18 U.S.C. §
2520(a) (Wiretap Act); 18 U.S.C. § 2707(a) (Stored Communications Act).
The elements one must prove to establish a violation of Title I of the ECPA show why
Plaintiff’s complaint seems to implicate the ECPA. Proving a violation of Title I requires
showing that a defendant: “(1) intentionally (2) intercepted, endeavored to intercept or procured
another person to intercept or endeavor to intercept (3) the contents of (4) an electronic
communication (5) using a device.” In re Pharmatrak, Inc., 329 F.3d 9, 18 (1st Cir. 2003).
Google argues that Plaintiff’s claims are so similar to a claim under the ECPA that the
Act is implicated by Plaintiff’s complaint even if Plaintiff claims that it is not. The Court agrees.
However, that implication does not alone answer the question whether federal-question
jurisdiction exists in this case. Neither complete preemption nor a substantial federal question is
at issue in this case, and therefore federal-question jurisdiction does not exist.
Complete preemption provides federal-question jurisdiction even where a complaint,
such as Plaintiff’s, does not state an explicit federal claim. Caterpillar Inc. v. Williams, 482 U.S.
386, 393 (1987). An examination of the doctrine and how it applies to the ECPA reveals that
complete preemption does not apply in this case.
Google does not seem to argue that Plaintiff’s claims fit Title II.
1. Complete-preemption background
Complete preemption exists where “the pre-emptive force of a statute is so
‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a
federal claim….” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Such
preemptive force “wholly displaces the state-law cause of action.…” Aetna Health Inc. v. Davila,
542 U.S. 200, 207 (2004) (quoting Anderson, 539 U.S. at 8). A state-law action falling under a
completely preemptive federal statute “is in reality based on federal law.” Id. Being based on
federal law, the state-law action may be removed to federal court.
Ordinary preemption—including express preemption, implied field preemption, and
implied conflict preemption3—however, does not create federal jurisdiction. Caterpillar Inc.,
482 U.S. at 393. Ordinary preemption is usually “merely a defense to a plaintiff’s state-law
claim….” Chapman v. Lab One, 390 F.3d 620, 625 (8th Cir. 2004). Defenses, even if federal in
nature, do not provide federal jurisdiction. Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125,
127–28 (1974). “Thus, it is now settled law 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 concede that the federal defense
is the only question truly at issue.” Id. (emphasis original).
“Complete preemption, as opposed to ordinary or conflict preemption, is rare.…” Thomas
v. U.S. Bank Nat’l Ass’n ND, 575 F.3d 794, 797 (8th Cir. 2009). Courts are reluctant to find it.
Bates, 548 F.3d at 636 (quoting Gaming Corp. of America. v. Dorsey & Whitney, 88 F.3d 536,
The subparts of ordinary preemption have, thus far, dodged firm categorization. Compare Soo Line R.R. Co. v. City
of Minneapolis, 38 F. Supp. 2d 1096, 1098 (D. Minn. 1998) (“The three categories of preemption are wellsettled….”) with Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 n.6 (2000) (“We recognize, of course,
that the categories of preemption are not ‘rigidly distinct.’”); see also Kinley Corp. v. Iowa Util. Bd., 999 F.2d 354,
358 n.3 (8th Cir. 1993) (“Preemption traditionally comes in four ‘flavors’….”); Richard A. Epstein, The Case for
Field Preemption of State Laws in Drug Cases, 103 NW. U. L. REV. 463, 464 (2009) (noting two broad categories of
preemption: express and implied, with implied composing actual-conflict, frustration-conflict, and field preemption).
543 (8th Cir. 1996)). Complete preemption is more difficult to prove than ordinary preemption.
Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 n.1 (11th Cir. 2010) (“Complete preemption, as
a narrow exception to the well-pleaded complaint rule, carries a higher burden than proving a
defense based on preemption.”); see also Fayard v. N.E. Vehicle Servs., LLC, 533 F.3d 42, 49
(1st Cir. 2008); Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir. 2005).
“[T]he intent of Congress is what controls” the existence of preemption. Gaming Corp. of
Am. v. Dorsey & Whitney, 88 F.3d 536, 547 (8th Cir. 1996) (citing Pilot Life Ins. Co. v. Dedeaux,
484 U.S. 41, 45 (1987)). “Complete preemption analysis thus depends on the existence of
palpable evidence that Congress intended to displace completely a particular category of statelaw causes of action, as manifested by the federal statute’s language, overall structure, and
legislative history.” Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik, 510 F.3d
77, 99 (1st Cir. 2007).
2. Google’s arguments
Google argues that the ECPA’s express-preemption provision is the source from which to
glean Congress’s preemptive intent for the statute.4 That provision states that “[t]he remedies and
sanctions described in this chapter with respect to the interception of electronic communications
are the only judicial remedies and sanctions for nonconstitutional violations of this chapter
involving such communications.” 18 U.S.C. § 2518(10)(c). The SCA has a similar provision:
“The remedies and sanctions described in this chapter are the only judicial remedies and
sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708. Google argues that
Google at times seems to conflate express preemption and complete preemption. Google refers, for example, to its
“argument that ECPA expressly preempts state law claims.” (ECF No. 21, at 7 n.6). Express preemption, however,
is a form of ordinary preemption, which cannot alone create federal jurisdiction. Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987); see supra, note 4.
those provisions amount to an “exclusive remedy” statement intended to completely preempt
The preemptive nature of the ECPA and SCA is slippery territory. Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). The statutes’ kinship in origin and in language,
however, makes cases discussing either provision useful in determining whether one or the other
is completely preemptive.
The only cases discussing the relationship between complete preemption and the ECPA
have failed to find complete preemption.5 Lane v. CBS Broadcasting, Inc., 612 F. Supp. 2d 623,
636 (E.D. Penn. 2009)6; In re Nat’l Sec. Agency Telecomm. Records Litig., 483 F. Supp. 2d 934,
939 (N.D. Cal. 2007); Shively v. Carrier IQ, Inc., No. C-12-0290 EMC, 2012 WL 3026553, at
*2–10 (N.D. Cal. July 24, 2012)7; Leong v. Carrier IQ, Inc., No. CV 12-01562 GAF(MRWx),
2012 WL 1463313, at *3 (C.D. Cal. Apr. 27, 2012).
These cases find complete preemption lacking in ECPA cases for two main reasons. The
first is that the much-touted exclusive-remedy provisions were intended, not to take jurisdiction
over civil communications cases away from the states, but rather to make clear that in criminal
cases—recall that the ECPA is a criminal statute—evidence suppression is not a remedy for an
Google strenuously urges the Court to follow the only case in this circuit it can find that allegedly discusses this
issue: Muskovich v. Crowell, No. 3-95-CV-80007, 1995 WL 905403 (S.D. Iowa Mar. 21, 1995). Muskovich clearly
found the plaintiff’s claims preempted and thus hearable in federal court. Id. at *2. Whether the court in Muskovich
found complete preemption is another question, and a much murkier one. Muskovich uses the term “complete
preemption” only once, in referring to the “case law explaining the doctrine.” Id. at *1. Proceeding to discuss that
case law, however, the court discusses only ordinary express preemption—an entirely different jurisdictional
creature from complete preemption. Id.
Given Muskovich’s stated reliance on express preemption and its singular and vague reference to complete
preemption, the Court finds that the better reading of Muskovich is that it mistakenly relied on ordinary preemption
to find federal jurisdiction, in contravention of Supreme Court guidance. See Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987).
Lane falsely conflates field preemption–which is a form of ordinary preemption–with complete preemption, which
gives federal jurisdiction. Lane, 612 F. Supp. 2d at 636.
Shively too appears to have confused complete preemption with ordinary preemption. The court discusses “express
complete preemption” and “implied complete preemption,” but complete preemption is not divided thus. It is, in a
sense, always implied; if it were express, it would merely be providing a plainly federal cause of action on the face
of the statute. Shively, 2012 WL 3026553, at *2; *5.
ECPA violation without an underlying Fourth Amendment violation. See, e.g., In re Nat’l Sec.
Agency, 483 F. Supp. 2d at 639 (noting that both § 2708 and § 2518(10)(c) were passed “for a
limited purpose”). In short, unless there is a constitutional violation behind a violation of the
ECPA, suppression is not a valid remedy. That narrow meaning does not indicate sufficient
congressional intent for complete preemption, especially in civil communications cases such as
The other reason is that the broader chapter of the ECPA containing the exclusiveremedy provisions, chapter 119, plainly welcomes state regulation in the same field, so long as
the state regulation is “at least as restrictive” as the federal regulation. Lane, 612 F. Supp. 2d at
636 (citing S. Rep. No. 99-541, at 35 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3589).
Congress plainly left the door open to states that want to regulate electronic communications,
and that means Congress cannot have intended the federal cause of action to be exclusive. See
Moriconi v. AT&T Wireless PCS, LLC, 280 F. Supp. 2d 867, 872–73 (E.D. Ark. 2003) (asking
whether Congress intended a federal cause of action to be exclusive).
The Court follows the above cases in finding that the ECPA does not completely preempt
Plaintiff’s state-law communications claims.
Substantial issue of federal law
Though Google trains the bulk of its federal-jurisdiction arguments on complete
preemption, it also argues that Plaintiff’s complaint implicates substantial federal-law issues,
which is another basis for federal-question jurisdiction.
Indeed, the language in which a plaintiff dresses her claims “is not dispositive of whether
federal question jurisdiction exists.” Cent. Iowa Power Coop. v. Midwest Indep. Transmission
Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009) (quoting Peters v. Union Pac. R.R. Co., 80
F.3d 257, 260 (8th Cir. 1996)). The Court must look through Plaintiff’s claims to the substance
beneath, asking whether the “state-law claim necessarily raise[s] a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons
Metal Prods., Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 314 (2005).
There is a “long-settled understanding that the mere presence of a federal issue in a state
cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow
Pharm., Inc. v. Thompson, 478 U.S. 804, 813 (1987). “[F]ederal jurisdiction demands not only a
contested federal issue, but a substantial one, indicating a serious federal interest in claiming the
advantage thought to be inherent in a federal forum.” Grable, 545 U.S. at 313. “The [Supreme]
Court’s teachings instruct lower courts to apply the substantial federal question doctrine with
caution.” Moriconi v. AT&T Wireless PCS, LLC, 280 F. Supp. 2d 867, 877 (E.D. Ark. 2003).
Here, “[n]o reference to federal law is required to determine the state law questions
presented by Plaintiff.” Id. at 878. Plaintiff asks for a declaration that her emails are her
property, and that, before the recipient reads the emails, they belong only to her and not to
Google. (ECF No. 3, at 4). She asks the Court to apply only state law definitions and legislative
intent in making that declaration. Her conditional relief too seeks to impose on Google
consequences based only on state law, e.g., conversion and computer trespass. The law she uses
might look like ECPA law on occasion, but her case does not need ECPA law in order to be
successful. Broadly resembling an ECPA claim is not the same as “arising under” the ECPA.
Moreover, determining that there are substantial federal issues in this case would upset
the state–federal balance expressly encouraged by the ECPA. Arkansas is free to regulate
electronic communications if it does so at least as strictly as federal law does. Google has not
argued that Arkansas offers less protection for its electronically communicating citizens than the
ECPA offers those citizens.
The Court therefore does not find in this case a substantial issue of federal law.
Google last relies on diversity jurisdiction to keep this case in federal court. Federal
courts may properly hear cases arising between citizens of different states in which more than
$75,000 is at stake. 28 U.S.C. § 1332(a)(1). There is no dispute that for citizenship purposes
Google resides in Delaware and California, and Plaintiff resides in Arkansas. The only issue,
then, is whether more than $75,000 is in controversy.
Google, as the party invoking federal jurisdiction, must show by a preponderance of the
evidence that Plaintiff’s claims exceed the minimum federal amount in controversy. 28 U.S.C. §
1446(c)(2); see also James Neff Kramper Family Farm Partnership v. IPB, Inc., 393 F.3d 828,
831 (8th Cir. 2005). If Google meets its burden, then Plaintiff “can defeat jurisdiction only if ‘it
appears to a legal certainty that the claim is really for less than the jurisdictional amount.’”
Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006) (quoting St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 282, 289 (1938)). The legal-certainty standard is not met if even a
possibility exists of recovering more than the statutory minimum. Back Doctors Ltd. v.
Metropolitan Property & Casualty Ins. Co., 637 F.3d 827, 831 (7th Cir. 2011). The Court need
not decide whether Google has met its preponderance burden because it appears to a legal
certainty that Plaintiff’s claim is for less than $75,000.
Removal is defeated by adding to the complaint a binding stipulation promising not to
seek greater damages than the jurisdictional minimum. Bell v. Hershey Co., 557 F.3d 953, 958
(8th Cir. 2009). In her complaint, “Plaintiff expressly limits the value of her declaratory relief
and any supplemental relief thereafter sought to less than $75,000.” (ECF No. 3, at 2). Google
finds that limitation insufficient because it does not specifically mention punitive damages and
Plaintiff’s amount-in-controversy limitation is comprehensive. She plainly limited the
value of her declaratory relief and any relief conditioned on that declaration. That broad
declaration binds Plaintiff to an amount below $75,000, and no jurisdictional tricks are available
to avoid it. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938) (“If
[plaintiff] does not desire to try his case in the federal court he may resort to the expedient of
suing for less than the jurisdictional amount, and though he would be justly entitled to more, the
defendant cannot remove.”); Rolwing v. Nestle Holdings, Inc., 666 F.3d 1069, 1072 (8th Cir.
2012) (finding plaintiff’s stipulations binding by judicial estoppel). The Court thus finds that
Plaintiff has shown to a legal certainty that less than $75,000 is in controversy in this case.
For the above reasons, the Court lacks federal-question and diversity jurisdiction over
this case. Accordingly, Plaintiff’s Motion to Remand (ECF No. 17) should be and hereby is
GRANTED. This case is hereby remanded to Little River County Circuit Court for further
IT IS SO ORDERED, this 6th day of December, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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