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Ralph Demmick, et al v. Cellco Partnership

March 29, 2011


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



This matter comes before the Court by way of a motion for judgment on the pleadings filed by Defendant Cellco Partnership, a Delaware General Partnership doing business as Verizon Wireless ("Verizon"), seeking dismissal of Plaintiffs' claims arising under the Federal Communications Act ("FCA"). The Court has considered the submissions in support of and in opposition to the present motion and decides the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons sets forth below, Verizon's motion is denied.


On May 11, 2006, Plaintiffs, on behalf of themselves and all others similarly situated, filed a class action Complaint against Verizon. Plaintiffs filed their Second Amended Complaint on March 27, 2008, alleging claims under the FCA and the Declaratory Judgment Act ("DJA"), and also under New Jersey and Maryland state law. Plaintiffs' allegations involve two distinct disputes related to Verizon's Family Share Plan, which permits multiple cellular telephones to share minutes among a primary line and one or more secondary lines. First, Plaintiffs allege that Verizon failed to disclose how "after-allowance," or "overage," minutes would be distributed among primary and secondary lines, causing Plaintiffs to be billed "in excess of what they should have been charged." (Second Am. Compl. ¶ 24.) Second, Plaintiffs allege that they were charged for "In-Network" calling between primary and secondary lines even though their service agreements provided that such calls would incur no charge. Plaintiffs state that both of these claims allege that Verizon billed Plaintiffs based on an "undisclosed policy" that contradicts the terms of the relevant service agreements. (Id. at ¶ 23; see CM/ECF Nos. 26 & 27, Opinion & Order, Mar. 13, 2007, at 7--8 (granting in part and denying in part Verizon's motion to dismiss).)

On September 8, 2010, this Court certified two nationwide classes asserting claims under the DJA and FCA: an Overage Minutes Class and an In-Network/In-Family Class. The Overage Minutes Class also includes statewide New Jersey and Maryland subclasses asserting breach of contract claims, and the In-Network/In-Family Class includes a statewide Maryland subclass asserting breach of contract and Maryland Consumer Protection Act claims. On November 2, 2010 the Third Circuit denied Verizon's petition for leave to appeal this Court's class certification ruling, and on December 15 Verizon filed the instant motion for judgment on the pleadings.


Rule 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Where, as here, a motion for judgment on the pleadings alleges that the complaint fails to state a claim upon which relief can be granted, the court applies the same standards as under Rule 12(b)(6). Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991).

For a complaint to survive dismissal under Rule 12(b)(6), it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard is not akin to a " 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully;" mere consistency with liability is insufficient. Id. In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). But, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[;] [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. It is the underlying specific facts alleged in a complaint that should be treated as true and evaluated.


Verizon's principal argument is that the law of the Third Circuit requires that claims under § 201(b) of the FCA, prior to being filed in federal court, must be brought to the Federal Communications Commission ("FCC") for a determination regarding the reasonableness of the challenged conduct. Absent a prior determination by the FCC, Verizon argues, Plaintiffs' claims must be dismissed. Plaintiffs concede that they did not seek FCC review before bringing the instant action but dispute that such review is required under Third Circuit precedent. Verizon alternatively argues that even if Plaintiffs' FCA claims are properly before this Court, they should nonetheless be referred to the FCC under the doctrine of primary jurisdiction. Verizon finally argues that Plaintiffs' "after-allowance claims" are not cognizable under the FCA.

A. Private Right of Action for Damages

Verizon cites Hoffman v. Rashid, No. 10-1186, 388 F. App'x 121 (3d Cir. 2010) (per curiam), for the proposition that "under binding Third Circuit law" a prior determination by the FCC regarding a defendant's conduct is "an essential prerequisite" for asserting claims under § 201(b) of the FCA. (Defs.' Mot. Br. at 1.) As an initial matter, as it was decided by per curiam opinion, Hoffman is not "binding Third Circuit law," but may be considered as persuasive authority. New Jersey, Dept. of Treasury, Div. of Inv. v. Fuld, 604 F.3d 816, 823 (3d Cir. 2010). As Verizon bases its argument on Hoffman and no precedent appears to directly address the question of whether a prior determination by the FCC is "an essential prerequisite" for asserting claims under § 201(b), the Court begins by examining the language of the relevant statutes.

Section 201(b) of the FCA states that it is "unlawful" for common carriers to engage in any "charge, practice, classification, or regulation that is unjust or unreasonable." 47 U.S.C. § 201(b). Section 206 in turn provides that a common carrier is "liable" for "damages sustained in consequence of" the carrier's engaging in "any act, matter, or thing in this chapter prohibited or declared to be unlawful." 47 U.S.C. § 206 (emphasis added). Section 207 then provides that "[a]ny person claiming to be damaged by any common carrier . . . may either make complaint to the Commission . . . or may bring suit . . . in any district court of the United States of competent jurisdiction" for "recovery of the damages for which such common carrier may be liable under the provisions of this chapter." 47 ...

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