The opinion of the court was delivered by: Urbina, District Judge.
Granting the Defendant's Motion to Dismiss without Prejudice
Pursuant to the Doctrine of Primary Jurisdiction
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
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
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.
A. Legal Standard for Motion to Dismiss under ...