The opinion of the court was delivered by: Robert J. Bryan United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)
This matter comes before the court on Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. 11. The court has considered the relevant documents and the remainder of the file herein.
On November 21, 2007, plaintiffs Utility Consumers' Action Network (UCAN) and Eric Taylor filed a civil action against defendants Sprint Solutions, Inc., Sprint Spectrum L.P., and Sprint-Nextel Corporation (Sprint). Dkt. 1. On January 2, 2008, plaintiffs filed an amended complaint, alleging that Sprint improperly included taxes, fees and other charges on monthly invoices to customers who obtained data service or data card plans from Sprint, and improperly charged these customers for text messages. Dkt. 9. The amended complaint asserts class action claims for (1) violation of California Business and Professions Code § 17200; (2) breach of contract; (3) violation of the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.; (4) declaratory relief; (5) violation of the Federal Communications Act,47 U.S.C. § 201(b); (6) money had and received, money paid and unjust enrichment; (7) conversion; and (8) pursuant to California Public Utilities Code § 2890. Id. The amended complaint requests certification of this case as a class action; declaratory, equitable, injunctive and/or monetary relief; actual, direct, incidental, consequential, statutory and exemplary damages; pre- and post-judgment interest; attorneys' fees; and other relief as the court may deem just and proper. Dkt. 9, at 26.
On January 23, 2007, Sprint filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Dkt. 11.
Defendants have moved to dismiss all claims brought by UCAN on the basis that UCAN has not suffered an injury in fact and therefore lacks standing to sue; and have requested that the court refer plaintiffs' claims for violation of the Federal Communications Act (FCA) to the Federal Communications Commission (FCC), under the doctrine of primary jurisdiction.
Plaintiffs oppose the motion, arguing that UCAN has properly alleged that it has sustained an Article III injury in fact, and that UCAN has associational standing. Dkt. 19, at 4-9. UCAN also objects to defendants' request that the court refer the FCA claims for decision by the FCC and stay the remaining claims pending a decision by the FCC, arguing that decisions related to those claims do not require administrative expertise and may be properly addressed in court. Dkt. 19, at 11.
A complaint must be dismissed under Fed.R.Civ.P.12(b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986). When considering a motion to dismiss pursuant to Rule 12(b)(1), the court is not restricted to the face of the pleadings, but may review any evidence to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court is presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, plaintiff bears the burden of proving the existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing Co., Inc. v. Gen'l Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
Relevant Facts and Motion
The amended complaint alleges as follows: On personal knowledge, UCAN is a 501(c)(3) not-for profit public interest advocacy organization that has over 30,000 members in California, and one or more of its members have lost money or property or had their rights infringed upon as a result of the acts and practices here at issue. Mr. Taylor is a Sprint Nextel data services customer who uses such services primarily for personal, family or household use. At all times relevant to this Complaint, Mr. Taylor ...