Dixie Elec. Membership Corp. v. AT&T
Decision Date | 14 January 2013 |
Docket Number | DOCKET NO. 12-078 |
Parties | DIXIE ELECTRIC MEMBERSHIP CORPORATION v. AT&T, ET AL |
Court | U.S. District Court — Middle District of Louisiana |
Before the court is "BellSouth Telecommunications LLC's Motion to Dismiss Plaintiff's Amended Complaint" (R. #42) wherein the mover (BellSouth) seeks to dismiss Counts 5 and 7 of plaintiff, Dixie Electric Membership Corp.'s (DEMCO) First Amending and Supplemental Complaint and Request for Jury Trial ("Amended Complaint").
The instant lawsuit involves the lease of wooden utility poles between the parties. DEMCO alleges that over an extended period of time, BellSouth failed to accurately report the number of DEMCO poles it had attached its cables to. Consequently, BellSouth failed to pay the appropriate annual rental fee. For a complete recitation of the facts, see the Memorandum Ruling issued July 9, 2012.1
Since our last Memorandum Ruling, DEMCO has filed an Amended Complaint wherein it asserts a claim for violation of the Louisiana Unfair Trade Practices Act ("LUTPA") for the years2011 and 2012 (Count 5) and a claim for fraud for the years 2011 and 2012 (Count 7). BellSouth maintains that LUTPA does not apply to actions or transactions subject to the jurisdiction of the Louisiana Public Service Commission ("LPSC") and for this reason BellSouth seeks to dismiss this claim. BellSouth also seeks to dismiss the fraud claim because it does not meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).
LUTPA claims
BellSouth maintains that DEMCO's LUTPA claims are expressly exempted from LUTPA coverage because they are subject to the jurisdiction of LPSC. BellSouth relies on Louisiana Revised Statute 51:1406 which provides as follows:
The provisions of this Chapter shall not apply to:
DEMCO argues that the plain language of § 1401 does not exempt public utilities from LUTPA. DEMCO remarks that federally insured financial institutions are the only entities specifically exempt by name from LUTPA claims. DEMCO maintains that BellSouth is not exempt from LUTPA merely because of its status as a utility. DEMCO argues that the exemption turns upon the extent to which the LPSC has jurisdiction and regulatory authority over the subject matter of the litigation. DEMCO concedes that the LPSC has authority to regulate the rates, terms and conditions of a pole attachment contract.5 However, because this lawsuit does not concern a rate, term or condition, but is about unfair trade practices in violation of LUTPA, DEMCO posits that it is not exempted by LUTPA.
DEMCO submits that the instant lawsuit concerns BellSouth's violation of a pre-existing contract and BellSouth's intentional concealment of its use of DEMCO property in order to avoid the rental payment. DEMCO also submits that the LPSC cannot render money judgments and is only capable of awarding money damages in instances where it finds that a particular utility rate is unfairand excessive entitling the rate payor to a refund.6
In Central Louisiana Electric Co., Inc. v. Louisiana Public Service Com'n,7 the court noted that "[t]he Legislature has never "provided by law" for the LPSC to exercise jurisdiction over other subject matters and areas of litigation in which public utilities are involved, such as tort actions and contract disputes."8 In Gulf States Utilities Co. v. Delcambre Telephone Co.,9 the Third Circuit Court of Appeal held that the LPSC lacked jurisdiction to entertain a claim for money damages by a utility company arising out of the unpaid use of its utility poles. In that suit Gulf States brought a quantum meruit action against Delcambre Telephone Company, Inc. for compensation for the use of its utility poles from 1972 through 1984; the parties had entered into a pre-existing contract but were unable to reach an agreement on a renewal contract. After a trial, a money judgment was rendered in favor of Gulf States and then subject matter jurisdiction was raised as an error. The Appellant argued that the LPSC had exclusive subject matter jurisdiction. The court recognized that Art. VI, § 4 of the Louisiana Constitution had long established that the commission had no authority to render money judgments, which was a judicial function. The court overruled the exception of lack of jurisdiction.
Having considered the arguments of the parties, the court concludes that DEMCO's claimsof unfair trade practices with respect to this contract claim is not exempted by LUTPA because this lawsuit does not involve an action to regulate the rates, terms and conditions of a pole attachment contract. Rather, it involves a contract wherein BellSouth allegedly failed to pay appropriate rental fees for the use of DEMCO's utility poles.
BellSouth maintains that DEMCO's fraud claim...
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