The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
Defendant, WorldCom, Inc., d/b/a LDDS Metromedia Communications ("WorldCom"),
has moved to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, to refer this action to the Federal Communications Commission ("FCC") and for a stay of the action in this Court, pending the FCC's resolution of this matter.
WorldCom's motion requires this Court to examine the parameters of the "doctrine of primary jurisdiction," in the context of whether this Court should refer to the FCC the issue of whether, and to what extent, WorldCom's Tariff F.C.C. No.2 filed with the FCC limits its liability to the Plaintiff.
For the reasons set forth below, the Court will grant Defendant's motion to refer to the FCC the question of whether, and to what extent, Defendant's Tariff F.C.C. No.2 limits its liability to Plaintiff, and stay all proceedings in this Court pending the FCC's resolution of this issue. Accordingly, Defendant's motion to dismiss Plaintiff's complaint will be dismissed without prejudice.
On March 11, 1996, Plaintiff, IPCO Safety Corporation ("IPCO"), filed a complaint in this Court against Defendant, WorldCom. This Court is vested with subject matter jurisdiction pursuant to 28 U.S.C. § 1332, based upon diversity of citizenship and alleged damages in excess of fifty thousand dollars, exclusive of interest and costs.
The relevant facts as set forth in Plaintiff's complaint are as follows. IPCO is a safety product sales and distribution company that employs more than thirty employees. Complaint P6. Plaintiff sells safety products, such as hard hats, exclusively through the use of telemarketing. Id. P6.
On January 11, 1995, IPCO entered into an agreement with Defendant, WorldCom, a telecommunications company, for the provision of long distance services for its general business operations and its telemarketing sales force. Complaint PP7-9. Under this agreement, WorldCom was to provide IPCO with long distance services for its in-coming and out-going sales communications and all other long distance services required by IPCO. Id. P10.
On March 24, 1995, IPCO left its previous long distance provider and transferred to WorldCom for the provision of its long distance services. Id. P11. IPCO contends, however, that the WorldCom system never functioned properly for it, and that for the week following the transfer to WorldCom, its "entire business ground to a halt because it was unable to make or receive long distance phone calls except at certain times and with no predictable reliability." Id. at P12.
IPCO contends that because the WorldCom system never functioned properly, WorldCom breached its agreement with it. Id. P14. IPCO asserts that as a result of WorldCom's alleged breach, it was "forced to seek another long distance provider and eventually entered into another agreement with Sprint under much less favorable terms than it was to have had under the [WorldCom] agreement." Id. P13. IPCO claims to have suffered the following damages as a result of WorldCom's alleged breach:
(a) Virtually the entire sales force of IPCO was idled for the majority of the time that WorldCom was to have been providing long distance services to IPCO;
(b) IPCO lost a significant number of accounts both from its inability to make outgoing solicitation calls and from its inability to receive in-coming telephone orders;
(c) Some customers who had extreme difficulty communicating with IPCO during the week that WorldCom was to have provided long distance ...