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OH v. AT & T CORP.

December 10, 1999


The opinion of the court was delivered by: Walls, District Judge.

This matter is before the court on the motion by defendant AT & T for judgment on the pleadings to dismiss the complaint pursuant to Fed.R.Civ.P. 12(c) for failure to state any claim for relief, or alternatively, on the grounds that the Federal Communications Commission ("FCC") has primary jurisdiction over the case. The defendant's motion to dismiss Count VI of the complaint is granted; the motion to dismiss all other counts is denied. The court instead transfers this action to the FCC for resolution of all matters within its jurisdiction, and orders that all proceedings before this court be placed in civil suspense until resolution by the FCC or until otherwise ordered by this court.


The plaintiffs began this putative consumer class action against AT & T in March 1999 by filing a complaint in the Superior Court of New Jersey, Bergen County. Defendant removed the case to this court. In August 1999, plaintiffs filed an amended class action complaint ("Complaint"), which alleges that defendant AT & T violates the tariffs that it is required to file with the FCC pursuant to 47 U.S.C. § 203(a). Specifically, FCC Tariffs 1 (May 14, 1998) and 27 (November 25, 1998) require AT & T to provide "up to two requests for listings within the area code dialed . . . on each call to Directory Assistance," for a charge of $1.40 per call. See AT & T Br., Exh. A.

The plaintiffs purport not to challenge the provisions of these tariffs, including the applicable rate. Instead, they charge that AT & T, by means of manipulative and deceptive acts, prevents its customers from availing themselves of the second request. Complaint ¶ 2. Plaintiffs allege that in order to minimize time and expense, AT & T operators and recordings respond to calls to Area Code Directory Assistance with the questions, "What city, please?" and "What listing, please?" The plaintiffs claim that each of these questions "implies, and unfairly manipulates and misleads the customer to believe, that the customer will have an opportunity for a second information request after the customer receives a response to his or her first request." Complaint ¶¶ 16-17. However, they allege that AT & T provides no such additional opportunity.

Plaintiffs also charge that AT & T refuses to provide a credit allowance to its customers who are aware that they are entitled to two requests, and who would in fact request two phone numbers "if they had not been prevented from doing so by AT & T's manipulative and misleading procedure." Complaint ¶ 21. They assert that although AT & T provides a telephone number to call to request credits, neither the automated message menu nor a human operator provides an avenue for a customer to receive credits in return for the practice described above.

Plaintiffs Oh and Schatz, who have used AT & T's Area Code Directory Assistance, claim to have been denied their right to a second listing. They style six causes of action for: (1) breach of contract, purportedly based on AT & T's service contracts with themselves and other class members; (2) the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. 56:8-1 et seq.; (3) common law fraud, based on AT & T's purported misrepresentations that the plaintiffs were required to make one request at a time; (4) negligent misrepresentation, due to AT & T's purported representation that the plaintiffs would have the opportunity to make a second request; (5) violation of § 201(b) of the Federal Communications Act, 47 U.S.C. § 201(b); and (6) injunctive relief. Plaintiffs seek declaratory relief, compensatory damages, treble damages pursuant to the NJCFA, pre-judgment interest on actual damages, an injunction to prevent AT & T from continuing its challenged practices, and costs and attorneys' fees.

Defendant, in moving for judgment, requests that the court dismiss the complaint for failure to state a claim for relief or pursuant to the doctrine of primary jurisdiction.


1. Standard for Judgment on the Pleadings

Fed.R.Civ.P. 12(c) allows any party to move for judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial." While the timing of a Rule 12(c) motion differs from a motion to dismiss pursuant to Fed. R.Civ.P. 12(b), the court should apply the same legal standards to both types of motions. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3rd Cir. 1991).

On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court is required to accept as true all allegations in the complaint, and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3rd Cir. 1994). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court may consider the allegations of the complaint, as well as documents attached to or specifically referenced in the complaint, and matters of public record. See Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3rd Cir. 1998); see also 5A Wright & Miller, Federal Practice & Procedure § 1357 at 299 (2nd ed. 1990).

2. Whether the Filed Tariff Doctrine Bars State Law Claims
  (Counts I-IV)

AT & T argues that the plaintiffs' state law claims must be dismissed pursuant to the filed tariff doctrine.*fn1 The defendant claims that as a "common carrier" it is required to file schedules of charges with the FCC pursuant to 47 U.S.C. § 203(a); that such tariffs "exclusively govern the legal relationship between AT & T and its subscribers," including issues related to directory assistance calls; and that the plaintiffs are wholly precluded under the filed tariff doctrine from asserting state law claims concerning matters covered by the tariffs. The plaintiffs object that this rule bars only state law claims that purport to contradict or supplement the filed schedules. They claim that, because they do not challenge the tariff, but instead seek to enforce AT & T's obligations filed with the FCC, their state law claims must be sustained.

Initially, the court notes that MFS International, Inc. v. International Telcom, 50 F. Supp.2d 517 (E.D.Va. 1999), relied on by plaintiffs, is inapposite. There, the court considered whether a telecommunications provider and its customers could agree to a shorter statute of limitations than that provided in the Federal Communications Act, 47 U.S.C. ยง 151 et seq. ("FCA"). The court observed that the counterclaims for breach of contract and conversion might be subject to preemption or dismissal if they were ...

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