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LIPTON v. MCI WORLDCOM

March 5, 2001

ELLEN LIPTON, PLAINTIFF,
v.
MCI WORLDCOM, INC. AND MCI TELECOMMUNICATIONS CORP., DEFENDANTS.



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

MEMORADUM OPINION

INTRODUCTION

Ellen Lipton, a subscriber to MCI's long-distance telephone service, brings this proposed class action against MCI Worldcom, Inc. and MCI Telecommunications Corp. (collectively "the defendants" or "MCI"). Ms. Lipton, the putative class representative, alleges that MCI violated Section 203(c) of the Federal Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq., by charging higher rates for her long-distance calls than were authorized under the appropriate tariff. The defendants have moved to dismiss Ms. Lipton's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The defendants argue that the "filed-tariff doctrine" bars the plaintiff's claims; that alternatively, the court should decline to hear the case under the primary-jurisdiction doctrine; and that the plaintiff lacks standing to assert the class claims set forth in her complaint. For the reasons that follow, the court will deny the defendants' motion to dismiss.

BACKGROUND

MCI is the second-largest provider of residential long-distance telephone service in the United States. See Compl. ¶ 3. MCI engages in fierce competition with other carriers like AT&T, and offers competitive discounts to customers. See id. ¶ 9. One of these discounts is a rate plan called the MCI One Savings Plan II, which MCI refers to as the "5-10-25 Cent Plan." Under this plan, MCI promises customers rates of five cents per minute on Sundays, ten cents per minute on evenings and Saturdays, and twenty-five cents per minute during peak hours. See id. ¶ 10. This plan is filed in Tariff F.C.C. No. 1, 4th Revised Page No. 19.1.3.1.1.4.7., § C-3 (effective June 12, 1998).
Ellen Lipton, a resident of Huntington Woods, Michigan, was a "customer of record" of MCI's long-distance service from August 1998 to January 1999. See Compl. ¶ 6, 11. In August 1999, Ms. Lipton called MCI and requested that she be enrolled in the "5-10-25 Cent Plan." See Decl. of Ellen Lipton ("Lipton Decl.") ¶ 3. Apparently, at the time of the call, neither she nor the MCI representative referred to the plan by its name. Nevertheless, Ms. Lipton understood that based on "representations made by MCI and the terms of the plan," MCI would charge her a rate of 10 cents per minute on Saturdays and weekday evenings, and 5 cents per minute on Sundays. See Compl. ¶ 12. In September 1999, Ms. Lipton's statements began referring to these rates. See Compl. ¶ 5; Lipton Decl. ¶ 4.
Ms. Lipton contends that MCI charged her more than the 10-cent rate on weekday evenings and Saturdays, and more than the 25-cent rate at peak times. See Compl. ¶ 13. For example, on Saturday, August 8, 1998, Ms. Lipton placed 31 minutes of state-to-state calls. See id. ¶ 14. Instead of charging Ms. Lipton $3.10, or ten cents a minute for these calls, MCI charged her $5.28, or 17 cents a minute. See id. Based on these and other charges, Ms. Lipton alleges that MCI "charged, demanded, collected and received compensation at rates greater than the charges specified in its Tariff" from her and others similarly situated, thereby violating the Federal Communications Act of 1934. See Compl. ¶ 30. Ms. Lipton seeks redress for the injury that she and other potential class members*fn1 have suffered in the form of damages, attorneys' fees, injunctive relief, and a declaratory judgment that MCI violated the Communications Act. See id. at 9.

DISCUSSION

Legal Standard

A Rule 12(b)(6) motion to dismiss tests not whether the plaintiff will prevail on the merits, but instead whether the complaint has properly stated a claim upon which relief may be granted. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the plaintiff's allegations. See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, in deciding such a motion, the court must accept as true all well-pleaded allegations of fact and draw all reasonable inferences in the plaintiff's favor. See Scheuer, 416 U.S. at 236; Moore v. Agency for Int'l Dev., 994 F.2d 874, 875 (D.C. Cir. 1993). The court need not, however, accept the plaintiff's legal conclusions as true. See Whitacre v. Davey, 890 F.2d 1168, 1168 n. 1 (D.C. Cir. 1989), cert. denied, 497 U.S. 1038 (1990).

The Court Allows the Defendants' Supplemental Materials on a Motion to Dismiss
As a preliminary matter, the court will address the fact that MCI has attached copies of the plaintiff's phone bill and pages from the filed tariff to its Motion to Dismiss. The plaintiff contends that by submitting materials outside the pleadings, "MCI apparently seeks to convert its motion to one for summary judgment." See Opp'n at 6. When reviewing a motion under Rule 12(b)(6), "if matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). The plaintiff argues that under Rule 12(b), the court should not convert the defendants' motion to one for summary judgment because the defendants' evidence is "incomplete, or inconclusive" and does not resolve what the plaintiff sees as existing disputed issues of material fact. See Opp'n at 6.*fn2

In fact, the court may consider the defendants' supplementary material without converting the motion to dismiss into one for summary judgment. This court has held that "where a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment." Vanover v. Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999) (citing Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)). The court finds that the plaintiff's phone bill and MCI's filed tariff fall within this exception and may be considered without converting the motion into one for summary judgment. In addition, because the tariffs are public documents which MCI is required to file with the Federal Communications Commission ("FCC"), the court may take judicial notice of them pursuant to Federal Rule of Evidence 201, and as a result may consider them on a Rule 12(b)(6) motion even though they are not included in, or attached to the complaint. See Marcus v. AT & T, 938 F. Supp. 1158, 1164-65 (S.D.N.Y. 1996), (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir. 1991), aff'd, 138 F.3d 46 (2d Cir. 1998)).

It is important to note, however, that the parties dispute whether the documentary evidence that MCI has submitted relates to the actual plan in which the plaintiff was enrolled. As the plaintiff states, "MCI's factual submission does not prove as a matter of law that the billing plan proffered by MCI controls and that plaintiff was properly billed according to the plan proffered by MCI." Opp'n at 3. Thus, although the court will allow the attachment of the documentary materials to the defendants' motion to dismiss, the court will not assume that the tariffed plan submitted by MCI is the plan to which Ms. Lipton ...

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