Himmelman v. Mci Communications Corp.

• Decision Date: 10 February 2000
• Docket Number: No. CIV.A. 99-1705 RMU.,CIV.A. 99-1705 RMU.
• Citation: 104 F.Supp.2d 1
• Parties: Curt HIMMELMAN, Plaintiff, v. MCI COMMUNICATIONS CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

104 F.Supp.2d 1

Curt HIMMELMAN, Plaintiff, v. MCI COMMUNICATIONS CORPORATION, Defendant.

No. CIV.A. 99-1705 RMU.

United States District Court, District of Columbia.

February 10, 2000.

Andrew N. Friedman, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, D.C., Liaison Counsel for plaintiff, Curt Himmelman.

Joshua N. Rubin, Abbey, Gardey & Squitieri, LLP, New York, NY, Co-Counsel for the plaintiff, Curt Himmelman.

Jeffrey M. Gottlieb, Berger & Gottlieb, New York, NY, Co-Counsel for plaintiff, Curt Himmelman.

Benjamin S. Boyd, Piper & Marbury L.L.P., Washington, D.C., Co-Counsel for defendant, MCI Communications Corporation.

Charles P. Scheeler, Piper & Marbury L.L.P., Baltimore, MD, Co-Counsel for defendant, MCI Communications Corporation.

Thomas F. O'Neil, III, MCI WorldCom, Inc., Washington, D.C., In-house counsel for defendant, MCI Communications Corporation.

MEMORANDUM OPINION

Granting the Defendant's Motion to Dismiss without Prejudice Pursuant to the Doctrine of Primary Jurisdiction

URBINA, District Judge.

I. INTRODUCTION

This purported class action is before the court upon the defendant's motion to dismiss pursuant to the doctrine of primary jurisdiction, among other grounds. For the reasons which follow, the court will grant the motion and dismiss the amended complaint without prejudice.

II. BACKGROUND

The plaintiff, Curt Himmelman, is a New Jersey resident who subscribes to telephone service provided by the defendant, MCI Communications Corporation ("MCI"). See Compl. ¶ 4. MCI is a telecommunications corporation that maintains its executive offices and national headquarters in Washington, D.C. Id. ¶ 5.

The plaintiff initiated this putative class action against MCI by filing a complaint in the Superior Court of the District of Columbia, Civil Division, see Compl. ¶ 3, but MCI removed the case to this court. Pursuant to Federal Rule of Civil Procedure 23(a), (b)(2) and (b)(3), the plaintiff's amended complaint proposes to litigate on behalf of a class consisting of all persons who have used MCI's directory-assistance service, with the exception of MCI employees, from August 13, 1993 through and including the date that MCI ends the practices complained of.¹

The complaint alleges that MCI has violated and continues to violate the tariffs it has filed with the Federal Communications Commission ("FCC") pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 1515 et seq., as amended ("the Act"). Specifically, FCC Tariffs require MCI to provide up to two requests for listings within the area code dialed on each call to Directory Assistance. For each such call, the FCC Tariffs permit MCI to charge $1.40. FCC Tariff No. 1, 4th Revised Page No. 18.12 section C.3, effective March 1, 1999, provides, in pertinent part:

.02117 Directory Assistance * * *

.021171 For customers who access Directory Assistance by dialing Area Code + 555-1212, an undiscountable charge of $1.40 per call will be applied to each call requesting Directory Assistance for numbers in the U.S. mainland .... * * * The Directory Assistance Operator will search for up to two numbers per call.

Mot. to Dis., Ex. 1 (emphasis added). The plaintiff does not challenge the provisions of these tariffs, including the rate of $1.40 per directory assistance call. See Compl. ¶¶ 2, 15. Rather, the plaintiff alleges that "MCI, by means of manipulative, unfair and deceptive acts, prevents, hinders and impedes its customers from availing themselves" of their right to request a second telephone number during the same call to directory assistance. See Compl. ¶¶ 2, 14. In order to spare itself time and expense, the plaintiff charges, MCI responds to directory-assistance calls with the questions, "For what city, please?" and "What listing?" See Compl. ¶ 16. Each of these questions unfairly misleads the customer into believing that he will have an opportunity to request a second number after he receives a response to his first request. See Compl. ¶ 17. Moreover, MCI never affords the customer an opportunity to request a second number. Id. Lastly, the plaintiff charges that MCI refuses to provide a credit to customers who learn that they are entitled to two numbers per call and who would request a second number if not prevented from doing so by MCI's manipulative procedures. See Compl. ¶ 20.

The plaintiff demands a jury trial and asserts six causes of action: Count 1, breach of contract, see Compl. ¶¶ 22-29; Count 2, violation of the D.C. Consumer Fraud Act, D.C.Code § 28-3901 et seq., see Compl. ¶¶ 30-39; Count 3, common-law fraud, see Compl. ¶¶ 40-48; Count 4, negligent misrepresentation, see Compl. ¶¶ 49-58; Count 5, violation of the Federal Communications Act section 201(b), see Compl. ¶¶ 59-65; and Count 6, a request for injunctive relief, see Compl. ¶¶ 66-69.

Subsequently, MCI filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted, and pursuant to the doctrine of primary jurisdiction. For the reasons which follow, the court will dismiss the amended complaint, without prejudice, pursuant to the doctrine of primary jurisdiction. Accordingly, the court declines to reach the other grounds for dismissal asserted in the defendant MCI's motion to dismiss.

III. DISCUSSION

A. Legal Standard for Motion to Dismiss under Rule 12(b)(6)

A motion to dismiss for failure to state a claim upon which relief can be granted tests not whether the plaintiff will prevail on the merits, but instead whether or not he has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Fed. R.Civ.P. 12(b)(6). The court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. D.C., 73 F.3d 418, 421 (D.C.Cir.1996). In deciding such a motion, the court must accept as true all wellpleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. See Maljack Prods. v. Motion Picture Ass'n, 52 F.3d 373, 375 (D.C.Cir.1995). The court need not, however, accept as true the plaintiff's legal conclusions. See Taylor v. F.D.I.C., 132 F.3d 753, 762 (D.C.Cir.1997). Nor need the court accept unsupported assertions, unwarranted inferences or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, 433 U.S. 25, 27, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). The court may consider the allegations of the complaint, documents attached to or specifically referred to in the complaint, and matters of public record. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 at 299 (2d ed.1990).

B. Whether this Court Should Defer to the FCC Pursuant to the Doctrine of Primary Jurisdiction

In addition to his nominally state-law causes of action, Mr. Himmelman contends that MCI's practices constitute an "unjust and unreasonable practice" within the meaning of the Federal Communications Act ("the FCA"). See Am. Compl. Count V. The FCA provides, in pertinent part, "All charges, practices, classifications and regulations for and in connection with [a] communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful." 47 U.S.C. § 201(b). The FCA creates a cause of action on behalf of any person who claims that he has been damaged by a common carrier, such as MCI. See 47 U.S.C. § 207. Such an aggrieved individual may elect to file a complaint with the FCC, or he may commence an action in any United States district court, but he may not pursue both remedies simultaneously. See 47 U.S.C. § 207; Richman Brothers Records, Inc. v. U.S. Sprint Communications Co., 953 F.2d 1431, 1435-36 (3d Cir.1991).

MCI asks this court to dismiss Mr. Himmelman's amended complaint pursuant to the doctrine of primary jurisdiction "so that the FCC can determine whether the manner in which MCI ... provide[s] directory assistance services is just and reasonable." See Defendant MCI's Motion to Dismiss the Amended Complaint ("Mot. to Dis.") at 22.

The primary-jurisdiction doctrine originated with Mr. Justice White in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). See United States v. Radio Corp. of America, 358 U.S. 334, 346, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959). "Primary jurisdiction is invoked in situations where the courts have jurisdiction over the claim from the very outset but it is likely that the case will require resolution of issues which, under a regulatory scheme, have been placed in the hands of an administrative body." Total Telecommunications Services, Inc. v. AT & T, 919 F.Supp. 472, 478 (D.D.C.1996) (quoting Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376 (10th Cir.1989)). "The primary jurisdiction doctrine is premised on a desire for uniform outcomes and on the inherent advantage in allowing an agency, in this case the FCC, to apply its expert judgment to the issues in dispute."² Total Telecommunications, 919 F.Supp. at 478. Under the doctrine, a court should refer a matter to an administrative agency for resolution, "even if the matter is otherwise properly before the court, if it appears that the matter involves technical or policy considerations which are beyond the court's ordinary competence and within the agency's particular field of expertise." MCI v. AT & T, 496 F.2d 214, 220 (3d Cir.1974); see also Allnet Communication Service, Inc. v. National Exchange Carrier Ass'n., 965 F.2d 1118, 1120 (D.C.Cir.1992) ("Expertise, of course, is not merely technical but extends to the policy judgments needed to implement an agency's mandate.").

Although there is no fixed formula for determining...