Opinion
Case No. 1:02CV00382
August 19, 2003
MEMORANDUM OPINION
This matter is now before this Court on Plaintiffs' Motion to Remand to the Superior Court of Durham County, North Carolina [Doc. # 44] and Defendant Mark Bassett's Motion to Strike portion of the memorandum in support of the Motion to Remand [Doc. #51]. For the reasons set forth below the Plaintiffs' Motion is DENIED and the Defendant's Motion is MOOT.
I
In April 2002, Plaintiffs Steve Winter and Prerapture Solutions ("Winter") d/b/a Sellcom filed this action in the Superior Court of Durham, North Carolina. The action arises from Winter's use of the internet. It was filed against more than twenty defendants including individuals and internet service providers ("ISPs") and seeks legal and injunctive relief.The complaint alleges five claims: (1) civil conspiracy; (2) intentional infliction of emotional distress; (3) defamation; (4) ISP knowingly allow [sic] abuse of service; and (5) unfair and deceptive trade practices. Winter alleges that he uses the internet both for his business, Prerapture, and to engage in "heated debate" regarding his religious and political viewpoints. (Complaint t 26-27). Winter states in the complaint that he presented his arguments regarding religion and politics to several of the defendants in the action and those defendants began to harass, deride and torment him on account of these arguments. (Complaint 1 27). Winter alleges in the complaint that he notified Verizon, ATT, rr.com and slurp.net, all ISPs, to inform them that their services were being used for harassment, and other wrongful criminal activities by several of the defendants in this action. (Complaint K 55). Verizon, ATT, rr.com. and slurp.net did not take any action to restrict their services to the defendants that Winter alleges engaged in the unlawful or wrongful actions. (Complaint 1 56). Verizon, instead, restricted Winter's internet access. (Complaint ¶ 59).
Winter and Preraputure allege that they are in the business of selling and marketing goods over the internet. (Complaint 1 22).
Defendants Verizon and ATT filed notice of removal on May 16, 2002. Defendant Time Warner Telecom and slurp.net consented to the removal. Winter filed a motion to remand this action on July 16, 2002.
All of the defendants in this action have not affirmatively consented to removal. The failure of all the defendants to join in the removal notice constitutes a procedural defect, which may be waived if not objected to within 30 days after filing of the removal notice. 28 U.S.C. § 1441, 1446(b). In this case, the Plaintiffs did not object to this defect within 30 days of the filing of the removal notice, therefore any defects outside of subject matter jurisdiction are waived.
II.
Title 28 U.S.C. § 1447(c) requires that a case must be remanded to the state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c) (West Supp. 2002). Plaintiff has moved for remand on the basis that this Court lacks subject matter jurisdiction because the claims in the complaint do not "arise under" federal law, but instead deal only with questions of state law. Defendants assert, however, that federal jurisdiction is proper because the fourth cause of action requires resolution of a question of federal law, specifically resolution of an ISP's duties under 47 U.S.C. § 230.
lt is undisputed that the parties do not satisfy the requirements for diversity jurisdiction.
Title 28 U.S.C. § 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (West Supp. 2002). The Supreme Court has explained that "Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust. 463 U.S. 1, 27-28 (1983). Thus, federal question jurisdiction under section 1331 exists only in two situations (1) when federal law creates the cause of action or (2) when a plaintiff's right to relief requires resolution of a question of federal law. id. The resolution of a question of federal law requires more than just the mere presence of a federal law. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (1986). An issue is sufficiently substantial if the question of federal law is a "necessary element" of the alleged state law claim. Franchise Tax, 463 U.S. at 13. The determination of whether a federal issue is substantial should be based on whether the exercise of federal power is both appropriate and pragmatic. Merrell Dow. 478 U.S. at 813-14.
In this case, the Plaintiffs' fourth cause of action involves interpretation of 47 U.S.C. § 230. Under the fourth cause of action the Plaintiffs allege that pursuant to 47 U.S.C. § 230, ISPs have a duty to restrict internet access for individuals when the ISPs are put on notice that their services are being used for criminal and/or wrongful activities. (Complaint 1 52). ISPs allow internet users to connect to the internet to retrieve content and communicate with others on the internet. ISPs also often provide email services and give users exclusive access to ISP sponsored chat rooms. Title 47 U.S.C. § 230 was created by Congress to promote the continued development of the Internet without excessive state or federal regulation. 47 U.S.C. § 230(b). Plaintiffs allege that the ISPs violated a duty created under § 230 by providing their services to individuals after the ISPs were notified that the individuals were using the service to harass and defame Winter. (Complaint f 52).
The Plaintiffs assert that this allegation does not involve a question of federal law. Instead, the Plaintiffs argue that § 230 only provides the duty of care owed by the ISPs to the Plaintiffs. Further, the Plaintiffs assert that the allegations that the ISPs violated § 230 serve only to show negligence per se under North Carolina law. That is, that the reference to the statute only serves to show that the ISPs owed a duty to the Plaintiffs and that they breached that duty. However, in this case, the question of federal law is not whether or not the the ISPs violated the duty created under § 230, but whether or not § 230 creates a duty for ISPs to restrict internet access for individuals when the ISPs are put on notice that their service is being used by those individuals for wrongful and/or criminal activities.
The Plaintiffs are attempting to make out a state law claim of negligence which requires the existence of a duty. Therefore, whether or not a duty exists under the statute will determine whether or not the Plaintiffs will be able to make a claim. The Fourth Circuit has stated that federal jurisdiction is proper when the construction of the law either creates or destroys the construction of a claim. Ormet Corp. v. Ohio Power Co.. 98 F, 3d 799, 806 (4th Cir.1996). Therefore, in this case a question of federal law, whether or not the construction § 230 creates a duty for ISPs, is required to determine a necessary element of the Plaintiffs' claim making the question of federal law sufficiently substantial to warrant federal jurisdiction.
III.
For the reasons stated above, the Plaintiffs' Motion to Remand is DENIED.