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HIMMELMAN v. MCI COMMUNICATIONS CORP.

February 10, 2000

CURT HIMMELMAN, PLAINTIFF,
V.
MCI COMMUNICATIONS CORPORATION, DEFENDANT.



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

MEMORANDUM OPINION

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

I. INTRODUCTION

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.*fn1

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 ...


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