Opinion
CASE NO. 02-CV-72216-DT
February 28, 2003
OPINION
Plaintiff, Drive Train Specialists, L.L.C. (Drive Train), filed its Complaint in Wayne County Circuit Court on May 2, 2002. On May 31, 2002, Defendants, ATT Corp. (ATT) and TCG of Detroit (TCG) (collectively Defendants), removed the case to this Court based on the Court's diversity jurisdiction under 28 U.S.C. § 1332. This case arises out of the parties' dealings regarding Defendants' provision of telephone services to Drive Train.
This matter is currently before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendants' Motion shall be granted.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for "failure to state a claim upon which relief can be granted . . . ." Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), the Court "must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted).
PROCEDURAL BACKGROUND
Drive Train's original complaint asserted claims of breach of contract, negligent misrepresentation, and a violation of the Michigan Consumer Protection Act. Defendants moved to dismiss Drive Train's complaint on several bases. The Court held a hearing on Defendants' Motion on September 19, 2002. At this hearing, Drive Train requested leave to amend its Complaint.
On October 3, 2002, Drive Train filed its First Amended Complaint (Complaint) asserting claims of breach of contract and negligent misrepresentation against Defendant ATT, and a claim of negligent misrepresentation against Defendant TCG.
On October 21, 2002, this Court issued an Opinion and an Order granting, in part' and denying, in part, Defendants' Motion to Dismiss. In this Order, this Court dismissed Drive Train's negligent misrepresentation claims in the First Amended Complaint, and denied Defendants' Motion to Dismiss Drive Train's breach of contract claim. Therefore, the only claim remaining is Drive Train's breach of contract claim against Defendant ATT.
The Court did not address Drive Train's claim under the Michigan Consumer Protection Act in the October 21, 2002, Order because Drive Train's counsel acknowledged at the hearing held on Defendants' original Motion to Dismiss that Drive Train may not assert such a claim.
Although this Motion is brought by "Defendants," because the only claim remaining is against Defendant ATT, this Opinion discusses the Motion as Defendant's Motion.
BACKGROUND
Drive Train is in the business of providing parts and services for motorized vehicles' drive trains. Drive Train is a "`mail order' business, and conducts the majority of its business over the telephone." (First Am. Compl. at ¶ 11). Around March of 1998, Drive Train entered into a contract (Toll Free Contract) with ATT. Through the Toll Free Contract, ATT was to provide Drive Train with toll free numbers that Drive Train's customers could use, to call Drive Train free of charge. ( See id. at ¶ 12-13).ATT then provided Drive Train a series of toll free numbers in August of 1999. Drive Train ran advertisements incorporating the toll free numbers in order to attract new business. ( See id. at ¶ 14-15). Drive Train alleges that "[s]everal of the toll free telephone numbers that ATT provided had previously been assigned to another customer of ATT, and [Drive Train's] potential customers were unable to contact" Drive Train. ( Id. at ¶ 16). Drive Train asserts it was damaged by "ATT's breach in providing the wrong telephone numbers. . . ." ( Id. at ¶ 17).
DISCUSSION
Defendant moves to dismiss Drive Train's claim against ATT based upon the statute of limitations set forth in 47 U.S.C. § 415(b), the primary jurisdiction doctrine, and the filed rate doctrine. However, because Defendant's statute of limitations' argument is dispositive, the Court shall not discuss Defendant's other bases for dismissal.
Defendant argues that because Drive Train's breach of contract claim accrued "in or around August of 1999," (First Am. Compl. at ¶ 14), the claim is time barred under 47 U.S.C. § 415(b), which provides:
All complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after. . . .47 U.S.C. § 415(b). Drive Train argues that Section 415(b) does not apply because "[b]y its language, the limitations provisions . . . applies to actions filed before the" Federal Communications Commission (FCC). (Pl.'s Br. at 5).
Although the language of Section 415(b) indicates the Section applies to complaints "filed with the Commission," the Sixth Circuit has held that the Section applies to civil suits as well as claims filed with the FCC. Ward v. Northern Ohio Telephone Company, 381 F.2d 16 (6th Cir. 1967), aff'g, 251 F. Supp. 606 (N.D.Ohio 1966). In Ward, the Sixth Circuit affirmed, in a per curiam opinion, the district court's dismissal of the plaintiff's claims based on the statute of limitations set forth in Section 415(b). The Sixth Circuit's opinion was based "upon the opinion of the District Judge. . . ." Ward, 381 F.2d at 17. The district court concluded, in a thorough opinion, "that section 415(b) bars claims not based on overcharges filed in district court. . . ." Ward, 251 F. Supp. at 611.
Drive Train's breach of contract claim against ATT accrued "in or around August of 1999," and Drive Train did not file its complaint until May 2, 2002. Therefore, under Section 415(b), Drive Train's claim in this Court is time barred and Defendant's Motion to Dismiss based upon Section 415(b) shall be granted.
The Court notes that in response to Defendant's argument, Drive Train asserts its claim is timely only because it argues that Section 415(b) does not apply to its action in this Court.
A Judgment consistent with this Opinion shall issue forthwith.