Johnson et al v. American Towers, LLC et al

Filing 61

OPINION AND ORDER granting 38 MOTION to Dismiss. Plaintiffs are directed to file proof of service, or a stipulation of dismissal, of Sprint Cellular Company of South Carolina by June 25, 2013. (Proof of Service/Stipulation of dismissal due by 6/25/2013) Signed by Honorable Cameron McGowan Currie on 6/19/2013. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Robert Johnson and Mary L. Johnson,

)
)
Plaintiffs,
)
)
v.
)
)
)
American Towers, LLC, Farmers
)
Telephone Cooperative, Inc., Cellco
)
Telephone Company of the Southeast, LLC, )
Cellco Partnership d/b/a Verizon Wireless, )
Sprint Cellular Company of South Carolina, )
Sprint Communications Company, L.P.,
)
Alltell Communications, LLC, Alltell
)
Communications, Inc., Alltell 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 LLC, Verizon Wireless )
Service LLC, Verizon Wireless of the East, )
L.P., Tracfone Wireless, Inc.,
)
)
Defendants. )
____________________________________)

C/A No. 3:13-789-CMC
OPINION AND ORDER
ON MOTION TO DISMISS

This matter is before the court on Defendants’ joint motion to dismiss, filed May 8, 2013.
Dkt. No. 38. Defendants argue, inter alia, that they are all entitled to dismissal because Plaintiffs’
sole claim, a state-law negligence claim: (1) is preempted by federal law; (2) fails for lack of a
legally cognizable state-law duty; and (3) is inadequately pleaded. Specific Defendants (and
categories of Defendants) advance additional grounds for dismissal.

In the alternative, all

Defendants seek to strike certain allegations and to require a more definite statement of the claim.

For the reasons set forth below, the court grants Defendants’ motion to dismiss on several
grounds. The court does not reach the remaining arguments for dismissal or the request for
alternative relief.
BACKGROUND
Through this action, Plaintiffs Robert Johnson and Mary L. Johnson (collectively
“Johnsons”), seek recovery for injuries they suffered as a result of a shooting incident at the
Johnsons’ home on March 5, 2010. Complaint ¶ 8. According to the Complaint, an assailant broke
into the Johnsons’ home and shot Robert Johnson, who was then a Captain at the Lee Correctional
Institution, six times in the chest and stomach. Id. ¶¶ 5, 8. Mary Johnson, Robert Johnson’s wife,
was present and observed the assault. Id. ¶ 8. The Johnsons allege that the shooting occurred
because “an inmate at the prison using a cellphone ordered a co-conspirator outside of the prison to
kill Captain Johnson.” Id. ¶ 7.
The Johnsons filed this action in the Court of Common Pleas, Lee County, South Carolina,
on February 13, 2013. They assert a single, state-law negligence claim against eighteen Defendants.
Four Defendants are identified as entities that own wireless communication towers used by one or
more of the other Defendants to provide wireless service that reaches Lee Correctional Institution.
Id. ¶ 1. The remaining fourteen Defendants are identified as entities which provide wireless service
that reaches Lee Correctional Institution. Id. ¶ 2. The Johnsons maintain that all Defendants are
liable for injuries each of them suffered as a result of the assault on Robert Johnson because
Defendants “were aware and realized prior to March 5, 2010, that they were creating an unreasonable
risk of harm to others as a result of allowing their cellphone signals to be received within the
2

confines of the prison and be emitted and received from the prison[.]” Id. ¶ 9.
The Johnsons maintain that Defendants breached applicable duties of due care by the
following actions or inactions:
a)

In owning, occupying, and operating cell towers which allowed illegal
cellphone activity;

b)

In owning, occupying, and operating cell towers when they knew that the
illegal use of cellphones in the prison was causing injury to persons outside
of the prison;

c)

In providing cellphone signals and service to an area where the Defendants
knew criminal activity was occurring while having the ability to block the
illegal use of cellphones; and

[d])

In failing to exercise reasonable care under the circumstance[s].

Id. ¶ 12.
Defendants removed the action to this court on March 25, 2013.1 The Johnsons moved to
remand on April 15, 2013, arguing the court lacked subject matter jurisdiction. Dkt. No. 18. By
order entered June 7, 2013, the court denied the Johnsons’ motion to remand, finding subject matter
jurisdiction both because the Johnsons’ negligence claim was completely preempted by federal law
and because the only non-diverse Defendants were fraudulently joined. Dkt. No. 56. The finding
of fraudulent joinder rested, in part, on a preemption defense.
STANDARD
A motion under Federal Rule of Civil Procedure 12(b)(6) should be granted only if, after
accepting all well-pleaded allegations in the complaint as true, it appears certain that the plaintiffs

1

The notice of removal was filed by a group of five Defendants, self-described as the
“Verizon Wireless Defendants,” with the consent of the remaining Defendants. Dkt. No. 1 at 1, 12
(¶ 57).
3

cannot prove any set of facts in support of their claims that entitles them to relief. See Edwards v.
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Although the court must take the facts in the
light most favorable to the plaintiffs, it “need not accept the legal conclusions [the plaintiffs would
draw] from the facts.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern
Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)). The court may also
disregard any “unwarranted inferences, unreasonable conclusions, or arguments.” Id.
The Rule 12(b)(6) standard has often been expressed as precluding dismissal unless it is
certain that the plaintiffs are not entitled to relief under any legal theory that plausibly could be
suggested by the facts alleged. See Mylan Labs., Inc. v. Markari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Nonetheless, the plaintiffs must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (quoted in Giarratano, 521 F.3d at 302).
Thus, in applying Rule 12(b)(6), the court also applies the relevant pleading standard.
Despite the liberal pleading standard of Rule 8, the plaintiffs in any civil action must include more
than mere conclusory statements in support of their claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (court need only accept as true the complaint’s factual allegations, not its legal conclusions);
see also Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Robertson v. Sea Pines Real
Estate Companies, Inc., 679 F.3d 278 (4th Cir. 2012) for proposition plaintiffs need not forecast
evidence sufficient to prove the elements of a claim, but must allege sufficient facts to establish those
elements).
DISCUSSION
I.

Preemption

Defendants argue that the Johnsons’ negligence claim is preempted by federal law for two
reasons: first, because it is expressly preempted by 47 U.S.C. § 332(c)(3)(A); and, second, because
4

the claim presumes the existence of a duty that would be in conflict with federal law. Dkt. No. 38-1
at 19-25.2

These are two of the three means by which state law may be preempted: express

preemption; conflict preemption; and field preemption. See Epps v. JP Morgan Chase Bank, N.A.,
675 F.3d 315, 322 (4th Cir. 2012) (noting claims may be preempted by express declaration of
congressional intent, by actual conflict with federal law, or because Congress so occupied the field
that there is no room for state supplementation). For reasons explained below, the court finds the
Johnsons’ claim barred by both express and conflict preemption.3
Express Preemption. Defendants’ express preemption argument rests predominantly but
not exclusively on 47 U.S.C. § 332(c)(3)(A). The critical portion of this section reads as follows:
“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, except that this paragraph shall not
prohibit a State from regulating the other terms and conditions of commercial mobile services.” 47
U.S.C. § 332(c)(3)(A). Thus, Section 332(c)(3)(A) includes both an express preemption clause
(applicable to regulation of entry into the market and rates charged) and a savings clause (which
allows states to regulate “other terms and conditions”).

2

Page number references to documents filed on the court’s electronic case filing (“ECF”)
system refer to the page number reflected on the ECF header, not the document’s internal numbering.
While the numbers often correspond, they do not in all cases, as is true with Defendants’
memorandum in support of dismissal (due to its inclusion of various tables). Dkt. No. 38-1.
3

The Johnsons, at certain points, incorrectly characterize Defendants’ preemption argument
as based on field preemption and complete preemption. Dkt. No. 50 at 4-5. Defendants do not rely
on either theory in their motion to dismiss. Defendants did, however, rely on the doctrine of
complete preemption (based, in part, on an underlying express preemption argument) in removing
this action and opposing the Johnsons’ motion to remand. See generally Dkt. No. 56 at 7
(discussing, inter alia, Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), which sets out the
requirements for complete preemption).
5

Defendants also rely on related provisions of the Communications Act, which provide that
the federal government shall “maintain . . . control . . . over all the channels of radio transmission[,]”
and confer authority on the Federal Communications Commission to grant licenses for wireless
telephone service and “establish areas or zones to be served by” these license holders. Dkt. No. 38-1
at 20 (discussing 47 U.S.C. §§ 301, 303, 303(h)). While these provisions do not, themselves, include
express preemption language, they do provide context that aids in understanding the intent of Section
332(c)(3)(A).
The court previously addressed the preemptive scope of Section 332(c)(3)(A) in its order
denying the Johnsons’ motion to remand. See Dkt. No. 56 at 4-8. There, the court considered
Section 332(c)(3)(A) in deciding whether the Johnsons’ negligence claim was not merely preempted
but also displaced by federal law, concluding, in part, as follows:
The Johnsons’ claims . . . relate directly to Defendants’ activities “in connection
with” providing wireless service. This is because the Johnsons may only succeed by
establishing that Defendants had a duty not to provide or facilitate wireless service
to or from a particular area (or, as to some Defendants, by establishing that they had
a duty to block such service).
Dkt. No. 56 at 7.4
4

In the order denying the Johnsons’ motion to remand, this court distinguished a number
of cases on which the Johnsons relied in arguing that their claim fell within the savings clause of
Section 332(c)(3)(A). Dkt. No. 56 at 5. The cited cases were distinguished based on the subject
matter of the claims: challenges to billing or marketing practices or to the safety of wireless devices.
None of the cases raised challenges relating to the wireless service itself. The additional cases cited
by the Johnsons in opposing dismissal are distinguishable for the same reason. For example,
although they did not address Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005), in support of
remand, the Johnsons now argue it is dispositive. See Dkt. No. 50 at 4-5 (arguing that Pinney
“resolved” the preemption issue before this court). As explained in the prior order, however,
[t]he Johnsons’ claims, in contrast to those in Pinney, relate directly to Defendants’
activities “in connection with” providing wireless service. This is because the
Johnsons may only succeed by establishing that Defendants had a duty not to provide
6

In other words, to succeed on their claim, the Johnsons must establish that Defendants owed
them a duty under state law to deny service to or from the prison (or to block such service) despite
having a federal license to serve a larger area that encompassed the prison. This would impose state
law limitations on the wireless service provided. That is, it would involve the state (through a jury
verdict applying state common law) in controlling the “channels of radio transmission” and
regulating the “areas or zones to be served” by wireless providers. See 47 U.S.C. §§ 301, 303
(vesting responsibility for such control and regulation in the FCC). The Johnsons’ claim would,
consequently, run afoul of the express preemption clause of Section 332, which provides that: “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.” See generally Pinney, 402 F.3d at 456
(noting that “for state law to constitute a barrier to entry, it must, at a minimum, obstruct or burden
a wireless service provider’s ability to provide a network of wireless service coverage” ). It follows
that the Johnsons’ state-law negligence claim is expressly preempted by federal law.
Conflict Preemption. Defendants also argue that the Johnsons’ claim is barred by conflict
preemption. Conflict preemption applies “‘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.
Defendants’ conflict preemption argument rests on the conflict between the Johnsons’ theory
of liability, that Defendants had a duty to block calls to or from the prison, and federal statutory
prohibitions on interfering with wireless signals. Compare Complaint ¶ 10 (alleging Defendants
or facilitate wireless service to or from a particular area (or, as to some Defendants,
by establishing that they had a duty to block such service).
Dkt. No. 56 at 6-7.
7

breached a duty of care because they failed to take “available measures to block” wireless signals
from the confines of the prison) with 47 U.S.C. § 333 (“No person shall willfully or maliciously
interfere with or cause interference to any radio communications of any station licensed or authorized
by or under this chapter or operated by the United States Government.”).5
As Defendants note, Section 333 has repeatedly been interpreted by the FCC as prohibiting
any jamming of wireless telephone signals, even by prison officials seeking authority to jam signals
because of concerns such as those raised in this case. See Dkt. No. 38-1 at 6-7, nn. 5-8 (and
referenced documents filed as attachments in Dkt. No. 52). The FCC recently addressed possible
alternatives to combat the underlying problem in a Notice of Proposed Rulemaking issued May 1,
2013. See Dkt. No. 52-15 (Notice of Proposed Rulemaking, Promoting Technological Solutions
to Combat Contraband Wireless Device Use in Correctional Facilities, GN Docket No. 13-111 et
al., FCC 13-58, ¶¶ 19, 77 (“Contraband Wireless Device NPRM”), available at
http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0502/ FCC-13-58A1.pdf); id. at 1213 (defining what is meant by jamming and noting the prohibition on sale of use of jamming devices
except for limited sale to or use by the Federal Government).
This Notice (“FCC 13-58”) indicates that the proposed alternatives, managed access and
detection, would be “consistent with the statutory framework that has limited the use of jamming
technologies.” Id. at 9. The proposed alternatives do not involve either denial of all service or
5

Although they argue that such relief would not be preempted, the Johnsons reaffirm the
nature of the burden they seek to impose in their memorandum in opposition to dismissal as a duty
to block (or “prevent”) calls. Dkt. No. 50 at 7 (“The defendants contend that requiring [them] to
block illegal calls from prison will create a barrier to their ability to provide a network of wireless
coverage.”).

8

blocking of all wireless signals to or from prison facilities. Instead, they involve technologies which
allow for the identification of and denial of service to contraband devices. See, e.g., FCC 13-58 at
8-13 (explaining differences between managed access systems, detection systems, and prohibited
jamming). Even implementation of the managed access systems addressed in FCC 13-58 requires
FCC approval. See id. at 9 ¶ 15 (noting that (1) “[a] correctional facility or third party at a
correctional facility may operate a managed access system if authorized by the Commission” and (2)
various prison facilities in multiple states had been authorized to and had conducted trials of
managed access systems) (emphasis added). The very purpose of FCC 13-58 is to propose rules
which would “remove barriers to the deployment and viability of existing and future technologies
used to combat contraband wireless devices.” Id. at 3 ¶ 1.
In sum, the FCC’s position, as expressed in recently issued FCC 13-58, is consistent with
prior FCC interpretations of Section 333 as precluding jamming or blocking of all signals to an area
(as opposed to denial of service to individual devices), even when that area is a prison where wireless
phones are known to be misused. See generally Dkt. No. 52-12 (February 18, 2009 letter denying
prison system’s request to use jamming equipment). Nothing in FCC 13-58 suggests the FCC would
approve (much less automatically allow) a wireless provider or tower owner to block all service to
a specified area such as a prison, which is effectively the duty the Johnsons seek to impose on
Defendants. Instead, it refers to alternative technologies which might address the problem, which
are described as experimental and which require special authorization from the FCC. This FCC
Notice, therefore, confirms both that imposing any duty to block calls would be in conflict with
federal law and that alternatives to achieve the same result remain subject to FCC control. Thus,
even if the Johnsons’ complaint sought to impose some duty other than blocking, their claim would
9

be subject to conflict preemption.6
Therefore, to the extent the Johnsons argue that any Defendant had a duty to block or jam
wireless telephone signals, their claim fails as a matter of law because blocking wireless signals is
expressly prohibited by federal law. See, e.g., 47 U.S.C. § 333. Any contrary state law requirement,
whether imposed by state statute, regulation, or based on the verdict of a jury applying state common
law, would be preempted as in conflict with federal law.
II.

Absence of State Law Duty
Even without federal preemption, the Johnsons’ claim would fail for want of a cognizable

duty under South Carolina law. In essence, the Johnsons seek to impose a duty on Defendants to
deny wireless service to a small, specified geographic area due to the heightened potential that such
service will be used to facilitate criminal activity. Whether such a duty may be recognized is an
issue of law for the court. Hendricks v. Clemson Univ., 578 S.E.2d 711, 714 (S.C. 2003) (internal
quotation marks omitted). “An affirmative legal duty exists only if created by statute, contract,
6

The Johnsons refer to managed access systems (for the first time) in their memorandum
in opposition to dismissal, presumably in response to the recent issuance of FCC 13-58. Even if the
Johnsons’ Complaint could be construed to allege a breach of a duty to implement such a system,
the claim would fail because allowing imposition of a state-law duty to impose such a limitation
would constitute state regulation of a condition of market entry. In any event, FCC 13-58 suggests
that, where these systems have been approved, the initiating party has been the prison, not a wireless
provider, and implementation has required leasing of specialized equipment as well as special
authorization by the FCC. FCC 13-58 at 6 (“The Commission has granted special temporary
authorization and experimental special temporary authorizations to allow testing of managed access
technologies, which utilize wireless base stations located within a correctional facility to capture and
block transmissions to or from unauthorized devices.”); id. (noting that the Commission had
approved leases of related equipment for placement at a number of prisons including Lieber
Correctional Institution in Ridgeville, South Carolina); id. at 9 ¶ 14 (“Managed access systems are
micro-cellular, private networks that analyze transmissions to and from wireless devices to determine
whether the device is authorized . . . . Managed access systems utilize base stations that are
optimized to capture all . . . communications within the system coverage area, which would be a
correctional facility in the instant case.”) (internal footnote omitted).
10

relationship, status, property interest, or some other special circumstance.” Id. Without such a duty,
there is no actionable negligence. See Bishop v. South Carolina Dep’t of Mental Health, 502 S.E.2d
78, 81 (S.C. 1998).
The Johnsons have failed to direct the court to any authority for imposing a duty on any
Defendant either to deny or block service to a particular area simply because some users within that
area might use the service for illegal purposes. Defendants, in contrast, have directed the court to
substantial authority suggesting South Carolina courts would not recognize the existence of such a
duty. See Dkt. No. 38-1 at 26-27 (addressing South Carolina cases finding mere foreseeability of
injury insufficient to support imposition of a duty); id. at 27-30 (addressing out-of-state cases finding
(1) manufacturers and sellers of wireless devices had no duty to warn users of the risks of driving
while using the devices and (2) airline owed no duty to protect passenger from contract murder); id.
at 30-31 (addressing South Carolina cases finding no duty to protect others from or warn them about
potential criminal acts by third parties).
While none of Defendants’ cases are on point, they suggest that South Carolina would not
recognize a duty on the part of a service provider to deny or block service to a particular area simply
because some individuals within that area might use the service for criminal purposes. Were such
a duty recognized, it would have broad implications not only for wireless service providers (who
might, for instance, be held liable to persons injured by drug users or dealers if the provider failed
to block service to street corners where drug activity is known to occur), but also for other entities
whose legal services or facilities might be used for criminal activity (e.g., hotels, public
transportation, restaurants, bars, and other locations where illegal activity might occur). This court
concludes that South Carolina would not recognize any such duty on the part of wireless service
11

providers or the tower-owners who lease space to wireless service providers.7
III.

Speculative Nature of the Complaint
Even without the legal difficulties addressed above, the Johnsons’ claim would fail due to

the speculative nature of their allegations. Most critically, the Johnsons fail to (1) identify the
assailant or the inmate who allegedly ordered the assault; (2) provide any factual basis for their
allegation that the order was given through a wireless phone; or, most critically, (3) allege any facts
which would suggest that any specific Defendants’ service or tower was used to transmit the call.
See Complaint ¶ 7 (“Because of Captain Johnson’s efforts to seize contraband, including cellphones
used to facilitate criminal activities originating in the prison, an inmate at the prison using a
cellphone ordered a co-conspirator outside the prison to kill Captain Johnson.”).
The Johnsons’ decision to cast so wide a net in naming Defendants confirms the absence of
any factual basis for assuming a particular service (or equipment attached to a particular tower) was
used by the unidentified inmate to convey an order to murder Robert Johnson (assuming the alleged
order was conveyed by wireless phone). As noted above, the Johnsons sued four separate towerowning Defendants and fourteen entities that allegedly provide service in the area.8 The fourteen
service providers represent multiple distinct “brands”: Verizon, Sprint, Alltell, T-Mobile, AT&T
and Tracfone. Beyond alleging that all Defendants either own towers which support service or
provide service to an area which includes the Lee Correctional Institution, which merely raises the
7

This conclusion is particularly strong as to the tower-owning Defendants given the added
distance of their activity – leasing tower space to wireless service providers – from the illegal
activity: a criminal assault that was allegedly made possible by illegal use of a contraband wireless
phone that accessed services provided by wireless service providers who leased tower space from
tower owners.
8

Several Defendants deny that they provide service in the area.
12

possibility of involvement in transmission of a call from the prison, the Johnsons include no
allegations that suggest a factual basis for their claim that any one of the Defendants provided or (by
owning a tower) supported service actually used in the possible call from the unidentified inmate.
Given the multiple different “brands” and towers covered by the eighteen Defendants, it is not
plausible that all of them had some involvement in transmission of any order to harm Robert
Johnson.
The Johnsons argue that greater specificity is not required because “[d]ismissing the
complaint at this early stage would deprive [them] of discovery which may uncover information that
is not currently available because it is the subject of a criminal investigation.” Dkt. No. 50 at 13.
Beyond noting that the alleged assailant (Sean Echols) has now been charged with the assault, the
Johnsons point to no further facts which might be added to clarify the basis of their claims. Most
critically, they point to no evidence that (1) a wireless phone was used or (2) the wireless service was
provided or supported by any particular Defendant. Under these circumstances, 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 Defendant and confirms the speculative nature of the claims
as applied against any particular Defendant. This is not enough.
As the Court explained in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual
allegations,” but it demands more than an unadorned, the defendant-unlawfullyharmed- me accusation. A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” A claim has
13

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.
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted,
emphasis added).
IV. Defendants Who Have Not Appeared
Four Defendants have not yet appeared: Cellco Telephone Company of the Southeast, LLC,
Sprint Cellular Company of South Carolina, Alltel Communications, Inc., and Alltel Mobile
Communications of South Carolina, Inc. The other Defendants, however, contend that three of these
are not proper Defendants because Cellco Telephone Company of the Southeast, LLC was dissolved
in 2003 (Dkt. No. 38-1 at 39); Alltel Mobile Communications of South Carolina, Inc. merged into
Alltel Communications, Inc. in 1997 (id. at 52); and Alltel Communications, Inc. converted to LLC
status in 2007 and is the same entity as named Defendant Alltel Communications, LLC (id.).
Plaintiffs did not respond to Defendants’ argument as to why these three parties should be dismissed.
In light of Defendants’ argument and the lack of Plaintiffs’ response, the court dismisses this action
against Cellco Telephone Company of the Southeast, LLC, Alltel Communications, Inc., and Alltel
Mobile Communications of South Carolina, Inc. without prejudice.
No one has filed a motion to dismiss, or otherwise addressed, the remaining Defendant –
Sprint Cellular Company of South Carolina – which has also failed to make an appearance. As a
result, the court may not direct entry of judgment at this time. It is unclear whether that entity has
been served or whether the entity exists. Plaintiffs are directed to file proof of service, or a
stipulation of dismissal, of Sprint Cellular Company of South Carolina by June 25, 2013. If
Plaintiffs have not filed proof of service by that deadline, the court will dismiss this action against

14

Sprint Cellular Company of South Carolina pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, and direct entry of judgment.
V. Other Grounds
The court does not reach several grounds for dismissal argued by one or more Defendants.
The court expresses no opinion as to the viability of these arguments.
CONCLUSION
For the reasons set forth above, the court grants Defendants’ motion to dismiss.9 Dismissal

for the reasons addressed in Sections I and II (preemption and absence of a state-law duty) is with
prejudice. Dismissal for the alternative reason stated in Section III is without prejudice. Dismissal
for the reasons stated in Section IV is without prejudice.
IT IS SO ORDERED.

S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
June 19, 2013

9

This dismissal applies to all Defendants except Sprint Cellular Company of South Carolina.
See supra Section IV.
15