                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1948


MYRA JOHNSON, on behalf of herself and all others similarly
situated,

                 Plaintiff - Appellant,

           v.

SPRINT SOLUTIONS, INCORPORATED,

                 Defendant – Appellee,

           and

SPRINT NEXTEL CORPORATION,

                 Defendant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Graham C. Mullen,
Senior District Judge. (3:08-cv-00054-GCM)


Argued:   September 24, 2009                 Decided:   December 18, 2009


Before KING and DUNCAN, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Gary Walker Jackson, JACKSON & MCGEE, LLP, Charlotte,
North Carolina, for Appellant. David Edward Mills, DOW LOHNES,
PLLC, Washington, D.C., for Appellee.   ON BRIEF: Samuel McGee,
JACKSON & MCGEE, LLP, Charlotte, North Carolina, for Appellant.
Michael Kovaka, DOW LOHNES, PLLC, Atlanta, Georgia; Daniel D.
Prichard, DOW LOHNES, PLLC, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     On March 23, 2005, Myra Johnson (“Johnson”) entered into a

multiple    document     cell    phone       contract         (“the   Contract”)        with

Sprint     Solutions,    Inc.     (“Sprint”)        that        permitted      Sprint     to

charge     Johnson    roaming        fees    on     a     per-call        basis.     Sprint

subsequently billed Johnson roaming fees for calls she made or

received while in places such as Charlotte and Rockingham, North

Carolina.      Although       Johnson       believed          these   areas    were     well

within Sprint’s service network as described in the Contract,

and that Sprint had wrongfully billed her roaming fees for those

calls, she initially paid the fees without protest. Eventually,

however,     she     determined       that       these        billings    breached       the

Contract and sued Sprint “on her behalf and on behalf of others

similarly     situated,”        for     breach           of     contract,       negligent

misrepresentation,        unjust       enrichment,              violation      of      North

Carolina’s Unfair and Deceptive Trade Practices Act, and also

for injunctive relief.

     Johnson’s        complaint       alleged       that         Sprint       lacked     the

technological       ability     to    verify      the     geographic        location      of

customers using its services, and accordingly theorized that all

bills containing roaming fees had been wrongfully charged and

assessed.      Sprint moved to dismiss the complaint pursuant to

Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The

district    court    granted     Sprint’s        motion,        reasoning     that     North

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Carolina’s “voluntary payment doctrine” 1 barred Johnson’s claim.

See Johnson v. Sprint Solutions, Inc., 2008 WL 2949253 (W.D.N.C.

2008).      Johnson appeals from that order, contending that the

district        court     misinterpreted            and        misapplied        the    voluntary

payment doctrine.            As discussed below, we affirm the district

court’s judgment; however, we do so on alternate grounds.                                       See

Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996).



                                                I.

     We review de novo the district court’s decision to grant a

motion     to     dismiss.            Giarratano          v.     Johnson, 521          F.3d   298,

302 (4th      Cir.      2008).        We   accept         the       factual   allegations        in

Johnson’s complaint as true, but recognize that, to survive a

motion   to      dismiss,       the    complaint       must         set    forth   a    claim    to

relief     that      is   plausible        on       its    face.           See     Ashcroft      v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).



                                             II.

     Johnson’s          claim    rests     entirely            on    the    proposition       that

various maps provided and displayed by Sprint formed part of the

     1
       North Carolina’s voluntary payment doctrine stands for the
simple principle that “the voluntary payment of money by a
person who has full knowledge of all the facts can not [sic] be
recovered.”   Guerry v. American Trust Co., 68 S.E.2d 272, 274
(N.C. 1951).



                                                4
Contract, and that these maps outlined where Sprint customers

would, and would not, be subject to roaming fees.                          Relying on

this,    Johnson   argues   that      Sprint    breached       the     Contract      by

charging roaming fees for calls she made or received in places

depicted on the maps as non-roaming areas. She contends that

Sprint misled her into believing it had the ability to verify

her geographic location whenever she used Sprint’s services.

     In her complaint, Johnson alleged that the Contract was

comprised of a PCS Advantage Agreement, the PCS Service Plans

Guide and “[a]ny other printed materials made available to the

FF Subscriber, which includes a Sprint PCS Coverage Guide, which

includes   maps    depicting    the   Home     Area.”        She   attached        these

documents as exhibits to her complaint.            J.A. 27-136.

     Her    complaint    also    asserted       that        Sprint’s       Terms     and

Conditions (“Ts & Cs”) did not comprise a part of the Contract

because Sprint did not deliver them at the time Johnson signed

the PCS Advantage Agreement. 2          Although Johnson did not attach

Sprint’s Ts & Cs to her complaint, Sprint filed them as exhibits

     2
        Just above Johnson’s signature                 on    the     PCS    Advantage
Agreement, it states in pertinent part:

     By signing below you … (ii) agree that you have read
     and agreed to all terms of this Agreement, including
     the requirements of your PCS Service Plan and the most
     recent Ts&Cs . . .”

J.A. 28.



                                        5
to its motion to dismiss.         J.A. 140-55.       In considering Sprint’s

motion to dismiss, the district court concluded that the Ts & Cs

comprised a part of Johnson’s contract with Sprint, a conclusion

Johnson does not challenge on appeal.                Before us, she disputes

only whether the district court properly interpreted the Ts & Cs

when it dismissed the complaint.

      Based on our review, we conclude that the Contract consists

of the PCS Advantage Agreement, the PCS Service Plans Guide, the

PCS Coverage Guide and the maps depicted in it, Sprint’s Ts &

Cs, as well as any printed materials, including maps, provided

or   displayed   to    Johnson   by    Sprint   at   its   store.     We   further

conclude that, under the plain terms of the Contract, Sprint’s

maps were no more than approximate representations of service

coverage   areas      and   provided   no   geographic     promises    depicting

where Johnson would and would not be subject to roaming fees.

The Sprint PCS Coverage Guide (“Coverage Guide”), for example,

states:

      Coverage Maps: Maps show approximate service areas for
      outdoor coverage. They’re based on computer-generated
      radio-frequency projections and information from third
      parties but don’t guarantee service availability.
      Actual coverage and the quality and availability of
      coverage can vary according to network problems,
      signal strength, your equipment, terrain, structures,
      weather and other limitations or conditions. Coverage
      isn’t available everywhere and may not be available in
      all areas shown on these maps.




                                        6
(emphasis     added).        Similarly,     the    text     accompanying        a   map

appearing in the Coverage Guide provides:

       Map sets forth approximate service areas for outdoor
       coverage   and is   not   a   guarantee  of  service
       availability.

(emphasis added). This language alone convincingly establishes

that     Sprint’s     maps    did    not    constitute      an       unequivocal    and

definite promise signaling where Johnson would and would not be

subject to roaming fees.

       Our   conclusion       is    further     bolstered       by     the    following

language in the Ts & Cs:

       You are roaming anytime your phone indicates that you
       are roaming. . . . Depending on your phone settings,
       you may automatically roam if there is a gap or
       interruption in coverage within the Sprint Nationwide
       PCS Network coverage area and roaming coverage areas.

(emphasis added). Thus, Johnson’s claims all rest on a theory

wholly refuted by the plain terms of the Contract and fail as a

matter of law.

       After considering the briefs and oral arguments of counsel,

and    the   record      before     us,    we   affirm    the    district       court’s

judgment     on    the   ground     that    Johnson’s     contract       with    Sprint

entitles     her    to   no   relief.      We   therefore       need    not    consider

whether North Carolina’s voluntary payment doctrine barred her

claim.

                                                                               AFFIRMED




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