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October 17, 1995

AT&T CORP., Plaintiff,

The opinion of the court was delivered by: KEEP

 On October 10, 1995, Plaintiff AT&T Corp.'s motion for summary judgment came on regularly for hearing. Defendants Community Health Group ("CHG") and Centro De Salud De La Comunidad De San Ysidro, Inc., d/b/a San Ysidro Health Center ("SYHC"), opposed. James D. Gustafson, Esq., appeared on behalf of Plaintiff. George J. Schultz, Esq., of Bauer & Schultz appeared on behalf of Defendants.


 As this case was so recently before the Court, the Court incorporates by reference the statement of facts from its oral ruling of August 28, 1995. CHG is a non-profit HMO, and SYHC is a related health care provider. AT&T filed a complaint against CHG on October 3, 1994, to recover over $ 80,000 of long-distance telephone charges placed by a computer "hacker" who illegally gained access to Defendants' phone system in September and October of 1992. On August 28, 1995, this Court granted Plaintiff's motion to amend its complaint to add SYHC as a Defendant. Plaintiff now moves for summary judgment, and Defendants oppose.


 I. Defendants' Cross-Motion for Summary Judgment

 On September 26, 1995, Defendants filed their opposition to the instant motion for summary judgment, and concurrently filed a pleading styled "cross-motion for summary judgment" listing October 10, 1995 as the hearing date. Defendants did not properly calendar their purported "cross-motion" by obtaining a hearing date from chambers as required under Local Rule 7.1(b)(2), nor did they timely file the motion for an October 10 hearing date under the 28-day rule set forth in Local Rule 7.1(e)(1). Accordingly, the Court does not consider Defendants' "cross-motion" herein.

 II. Plaintiff's Motion for Summary Judgment

 The Court incorporates by reference Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The burden then shifts to the nonmovant to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. To make such a showing, the nonmovant must go beyond the pleadings to designate specific facts indicating a genuine issue for trial. Id. In considering the specific facts offered by nonmovant, the court does not make credibility determinations or weigh conflicting evidence, and is required to draw all justifiable inferences in favor of nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, if the nonmovant's evidence is "merely colorable, or is not significantly probative," summary judgment may be granted. Id. at 249-50.

 Plaintiff's first amended complaint alleges a single cause of action for failure to pay long distance telephone charges that were placed through Defendants' telephone system for the months of September and October 1992. Plaintiff alleges that, prior to January 1992, Defendants subscribed to AT&T Long Distance Message Telecommunications Service ("LDMTS"). Under the Communications Act of 1934, 47 U.S.C. § 151 et seq., AT&T is a common carrier providing interstate telecommunications services, and is required to file tariffs with the Federal Communications Commission ("FCC"). Tariffs are public documents setting forth the terms and conditions of the common carrier's services and rates. Under AT&T Tariff FCC No. 1, § 2.4.1.A,

the Customer is responsible for placing any necessary orders and complying with tariff regulations for LDMTS and for assuring that its Users comply with tariff regulations. The Customer is also responsible for the payment of bills for LDMTS. This includes payment for LDMTS calls or services:

  -- Originated at the Customer's number(s), -- Accepted at the Customer's number(s) (e.g., Collect Calls), -- Billed to the Customer's number via Third Number Billing if the Customer is found to be responsible for such call or service, the use of a Calling Card, the use of AT&T EasyReach Service, or the use of a Company-assigned Special Billing Number, and -- Incurred at the specific request of the Customer.


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