Quellhorst v. 2929 Real Estate Holdings

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DANIEL QUELLHORST, §
Plaintiff, §
§
v. § CIVIL ACTION NO. 4:25-CV-01229
§
2929 REAL ESTATE HOLDINGS, §
Defendant. §
MEMORANDUM AND RECOMMENDATION
This case involving a pro se Plaintiff is before the Court on Defendant’s
Motion to Dismiss Plaintiff’s First Amended Complaint. The Motion has been fully
briefed and is ripe for determination.1 ECF 13; ECF 20; ECF 21. The Court
recommends that Defendant’s Motion be granted.
I. Background
Plaintiff commenced this case in Texas state court on February 21, 2024
alleging that radio frequency (RF) emissions from Defendant’s property have caused
him significant health issues. ECF 1-1. Defendant was served on February 12, 2025
and removed the case to federal court asserting that Plaintiff’s claims are preempted
by “Title 47, Chapter 5 of the United States Code governing the Federal
Communications Commission (FCC), its regulation of radio frequency waves, and
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 14.
United States District Court
Southern District of Texas
ENTERED
November 21, 2025
Nathan Ochsner, Clerk
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the remedies for alleged violations of such regulations.” ECF 1 at 2. Plaintiff filed
a first Amended Complaint on April 23, 2025 expressly asserting that Defendant’s
actions violate the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. and
accompanying regulations, specifically 47 C.F.R. § 1.1310 limiting RF emissions,
and asserting state law claims for negligence, private nuisance, trespass, and
intentional infliction of emotional distress.2 ECF 10.
II. Motion to Dismiss Standards
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). In reviewing a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.
Alexander v. AmeriPro Funding, Inc., 48 F.3d 68, 701 (5th Cir. 2017) (citing Martin
K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
2 Plaintiff’s First Amended Complaint asserts a federal claim against Defendant for violation of
47 C.F.R. § 1.1310. ECF 10 at 7. Therefore, the Court has federal question subject matter
jurisdiction regardless of preemption. Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 39
(2025) (holding that subject matter jurisdiction depends on the substance of the plaintiff’s
operative pleading in federal court.
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However, the court does not apply the same presumption to conclusory statements
or legal conclusions. Iqbal, 556 U.S. at 678-79.
The Court construes the Complaint of pro se plaintiffs liberally. Badaiki v.
Schlumberger Holdings Corp., 512 F. Supp. 3d 741, 744 (S.D. Tex. 2021) (pro se
filings must be “liberally construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” (citations omitted)). However, even pro se Plaintiffs
must state a plausible claim for relief under Rule 12(b)(6). See Chhim v. Univ. of
Texas at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (acknowledging that courts hold
pro se plaintiffs to a more lenient standard than lawyers and holding “pro se plaintiffs
must still plead factual allegations that raise the right to relief above the speculative
level”).
III. Analysis
Defendant moves to dismiss Plaintiff’s claims with prejudice because “they
are preempted by the FCC’s statutory and regulatory control of radio frequency
emission standards, they are time-barred, and Plaintiff does not plausibly allege
causation.” ECF 13 at 5. Plaintiff’s First Amended Complaint alleges that since
2016 he has repeatedly taken RF-meter readings with a “Cornet ED-88TPlus2
spectrum analyzer” that he believes show emissions over the FCC’s 1mW/cm2
public limit. ECF 10 at 2. He believes that online streamers are giving cues to
“signal someone to act,” triggering an “an RF burst striking Plaintiff.” Id. at 2-3.
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He does not allege that an employee or agent of Defendant is either the person giving
the cues or the “someone to act.” Plaintiff connects Defendant to the RF energy
bursts because the bursts have occurred within visual line-of-sight or proximity to
Defendant’s tower and the bursts increased in frequency, but not strength, after
removal of this case to federal court. Id. at 2-5. Plaintiff also alleges that after he
filed this suit the direction from which RF bursts are emitted has changed, indicating
Defendant’s intent to evade detection. Id at 5. The RF energy bursts have not only
caused Plaintiff physical injury and pain, but they have caused “collateral damage”
to household electronics. Id. at 5-6. Further, “over the past two years Plaintiff has
witnessed multiple cyslists and motocyclists wearing helmets suddenly lose control
and collapse, as well as pedestrians inexplicably falling, consistent with transient
high-power RF bursts emanating from Defendant’s rotating emission source.” Id. at
6.
A. Plaintiff’s claims are frivolous.
Plaintiff’s allegations are wildly implausible. A complaint fails to state a
claim for relief if the allegations lack facial plausibility. Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 678. This alone is sufficient basis for granting Defendant’s motion
to dismiss. See Smith v. Smith, No. 3:25-CV-2449-X-BN, 2025 WL 2831957, at *1
(N.D. Tex. Sept. 15, 2025), report and recommendation adopted, No. 3:25-CV-
2449-X-BN, 2025 WL 2831470 (N.D. Tex. Oct. 6, 2025) (holding a district court
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has authority to dismiss an action where “the facts alleged are clearly baseless, a
category encompassing allegations that are fanciful, fantastic, and delusional”).
Plaintiff’s Complaint fails to state plausible claims for relief for additional reasons.3
B. Some of Plaintiff’s Claims are preempted by FCC regulations.
Congress has delegated the task of setting RF-emissions levels to the FCC to
balance the interests of “protecting the public from RF-emissions exposure and
promoting a robust telecommunications infrastructure.” Robbins v. New Cingular
Wireless PCS, LLC, 854 F.3d 315, 319–20 (6th Cir. 2017). Pursuant to its
Congressional authority, the FCC has set radio frequency radiation exposure limits
through its regulation at 47 C.F.R. § 1.1310. A federal regulation can preempt state
law. Greenwich Ins. Co. v. Mississippi Windstorm Underwriting Ass'n, 808 F.3d
652, 655 (5th Cir. 2015) (recognizing that “Federal regulations can have a
preemptive effect equal to that of federal laws” (citations omitted).
The parties have not cited, and the Court has not found, a Fifth Circuit decision
addressing whether the FCC’s regulation limiting radio frequency exposure
preempts state law tort claims. The preemptive effect of FCC regulations and
precedents from circuits other than the Fifth Circuit were discussed extensively in
Walker v. Motorola Mobility LLC, 670 F. Supp. 3d 387 (W.D. La. 2023), a case
3 See Cohen v. Apple, 46 F.4th 1012 (9th Cir. 2022); Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir.
2005); Farina v. Nokia Inc., 625 F.3d 97, 134 (3d Cir. 2010); Murray v. Motorola, Inc., 982 A.2d
764 (D.C.A. 2009).
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involving the FCC regulation governing emissions from mobile devices.4 The
Walker plaintiffs, survivors of decedent consumer, sued defendants under multiple
Louisiana tort laws asserting that decedent’s brain cancer was caused by radiation
emitted from his cells phones that exceeded the limit on the “Specific Absorption
Rate (SAR)” adopted by the FCC. Id. at 390. The Walker court sided with the Ninth,
Third, and D.C. Circuits5 in holding that state tort claims that challenge FCC testing
protocols and certifications by alleging harm from emissions that are in compliance
with the FCC SAR regulation are barred by “obstacle preemption.” 6 Id. at 400-01.
As the district judge in Walker explained, “[a] patchwork of testing protocols would
undermine the FCCs well-established objectives.” Walker, 670 F. Supp. 3d at 401;
see also Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319–20 (6th
Cir. 2017) (holding that tort actions alleging harm from radio frequency emissions
are barred by the doctrine of “obstacle preemption”). Significantly, the Walker court
further held that claims based on allegations that “specific phones used by [decedent]
4 The district court in Walker noted the lack of Fifth Circuit “jurisprudence addressing the
preemptive effect” FCC emission standards. 670 F. Supp. 3d at 398.
5 See Cohen v. Apple, 46 F.4th 1012 (9th Cir. 2022); Farina v. Nokia Inc., 625 F.3d 97, 134 (3d
Cir. 2010); Murray v. Motorola, Inc., 982 A.2d 764 (D.C.A. 2009).
6 Obstacle preemption occurs when “the state law ‘stands as an obstacle to the accomplishment
and execution of the full purposes of and objectives of Congress’” Nat'l Press Photographers Ass'n
v. McCraw, 90 F.4th 770, 797 (5th Cir. 2024) (citations omitted)).
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were emitting RF radiation above the SAR Standard” were not preempted. Id. at
401.
The Court finds the Walker case well-reasoned and persuasive. The
preclusive effect of the FCC SAR regulation at issue in Walker, 47 C.F.R. §
2.1093(d), should not vary from the preclusive effect of the 47 C.F.R. § 1.1310, the
regulation limiting RF emissions which is at issue in this case. The Court concludes
that all state law claims based on alleged injury from RF emissions that fall within
the limit established in 47 C.F.R. § 1.1310 are preempted and must be dismissed.
On the other hand, Plaintiff’s claims that Defendant’s tower emitted RF bursts in
excess of FCC prescribed limits are not preempted (although, as explained below,
they are otherwise barred).
C. Plaintiff does not have a private cause of action for violation of 47
C.F.R. § 1.1310.
In addition to state law tort claims, Plaintiff asserts a direct claim for violation
of 47 C.F.R. § 1.1310. ECF 10 at 7. “[P]rivate rights of action to enforce federal
law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286
(2001). There is no indication in the Telecommunications Act of 1996 that Congress
intended to create a private cause of action for violation of 47 C.F.R. § 1.1310. See
Staton Holdings, Inc. v. First Data Corp., No. CIV.A. 3:04-CV-2321P, 2006 WL
1343631, at *9 (N.D. Tex. May 16, 2006) (holding the Communications Act of 1934,
as amended, did not create a private cause of action for enforcement of regulations
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promulgated under the Act, citing Greene v. Sprint Commc'ns Co., 340 F.3d 1047,
1051 (9th Cir.2003)); Radar Sols., Ltd. v. U.S. Fed. Commc'ns Comm'n, 628 F. Supp.
2d 714, 727 (W.D. Tex. 2009) (holding no private right of action created by 47
U.S.C. §§ 151 or 504(c)); see also Hueter v. AST Telecomm LLC, 557 F. Supp. 3d
1101, 1116 (D. Haw. 2021) (finding 47 U.S.C. §§ 151, 201(b), and 332(c) do not
create a private right of action to enforce FCC regulations setting emission
standards); cf. Phonetel Techs., Inc. v. Network Enhanced Telecom, 197 F. Supp. 2d
720, 722 and n.1 (E.D. Tex. 2002) (finding no private right of action for violation of
47 C.F.R. § 64.1300 et seq. and expressing “serious concerns whether an FCC
regulation could ever contain an implied private right of action in the federal district
courts”).
Plaintiff’s claim for violation of 47 C.F.R. § 1.1310 must be dismissed
because Congress has not created a private right of action for violations of this
regulation.
D. All of Plaintiff’s state law tort claims are barred by the statute of
limitations.
All of Plaintiff’s tort claims, i.e., negligence, nuisance, trespass, and
intention infliction of emotional distress, are subject to a two-year statute of
limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a); JPMorgan Chase Bank,
N.A. v. Pro. Pharmacy II, 508 S.W.3d 391, 414 (Tex. App.—Fort Worth 2014, no
pet.) (negligence); Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex.
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2004) (private nuisance); Gaylor v. Stiver, No. 10-12-00305-CV, 2014 WL
1778416, at *5 (Tex. App.—Waco May 1, 2014, no pet.) (trespass); Matlock v.
McCormick, 948 S.W.2d 308, 311 (Tex. App.—San Antonio 1997, no pet.)
(intentional infliction of emotional distress). In Texas, “[c]auses of action accrue
and statutes of limitations begin to run when facts come into existence that authorize
a claimant to seek a judicial remedy.” Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
348 S.W.3d 194, 202 (Tex. 2011). Plaintiff’s First Amended Complaint alleges that
“[s]ince 2016” RF emissions from the tower on Defendant’s property have been
causing his injuries. ECF 10 at 2. Plaintiff filed this case approximately eight years
later, in 2024. ECF 1. Therefore, Plaintiff’s state law claims should be dismissed
with prejudice because they are barred by the applicable statutes of limitations.
E. Plaintiff fails to plead plausible facts to support causation.
Causation is a required element of Plaintiff’s state law claims. Rattray v. City
of Brownsville, 662 S.W.3d 860, 874 (Tex. 2023) (stating that proximate cause is the
“familiar tort-law standard.”). Plaintiff alleges that Defendant “owns and operates
the commercial tower at 2929 Allen Parkway, Houston, Texas, 77019” ECF 10 at
2. He further alleges that he has experienced RF bursts when in proximity to the
tower. See, e.g., id. at 2 (when “the Defendant’s tower is in visual line of sight); at 4
(“while stopped at Defendant’s security booth on the west side of 2929 Allen
Parkway”); at 5 (“while crossing Allen Parkway” on the way to HEB). However,
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Plaintiff alleges that these bursts, or spikes, are being directed by “live Twitch
streamers.” Id. at 2-3. Plaintiff also acknowledges that a change of tenants in the
building and equipment modifications could account for changes in RF emissions.
Id. at 5. Plaintiff’s First Amended Complaint fails to allege plausible facts showing
Defendant, as opposed to streamers or tenants or some other unidentified entity or
person, is controlling the timing or degree of RF emissions from the tower. Plaintiff
therefore has failed to plead that Defendant’s actions are the proximate cause of his
injuries.
E. Futility of Amendment
Although pro se litigants are often granted leave to amend a deficient
complaint, leave is not warranted if it would be futile. See Mason v. Fremont Inv. &
Loan, 671 F. App'x 880, 883 (5th Cir. 2016) (holding denial of leave for a pro se
litigant to amend is justified where amendment would be futile). Leave to amend is
reviewed for abuse of discretion, and where amendment would be futile, there can
be no abuse of discretion. Yan v. Taylor, No. 24-10288, 2024 WL 4579606, at *1
(5th Cir. Oct. 25, 2024). Given the nature of Plaintiff’s allegations and the statute
of limitations bar, the Court recommends that leave to amend be denied.
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IV. Conclusion and Recommendation
For the reasons set forth above, the Court RECOMMENDS that Defendant’s
Motion to Dismiss (ECF 13) be GRANTED and Plaintiff’s claims be DISMISSED
WITH PREJUDICE.
The Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on November 21, 2025, at Houston, Texas.
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