The opinion of the court was delivered by: Ricardo M. Urbina, Judge.
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.
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. 188.8.131.52.1.4.7., § 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.
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
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 ...