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PNG Telecommunications, Inc. v. Pac-West Telecomm

August 11, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on the motion of defendant Pac-West Telecomm, Inc. ("Pac-West" or "defendant") to dismiss plaintiff PNG Telecommunications, Inc.'s ("PNG" or "plaintiff") complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In connection with its motion, defendant also requests that the court take judicial notice of several documents. Plaintiff opposes defendant's motion to dismiss.

The court heard oral argument on the motion on August 6, 2010. For the reasons set forth below, defendant's motion is DENIED insofar as the court finds that it has subject matter jurisdiction over the case. However, prudential considerations lead the court to stay the case while the parties present the issues raised herein to the California Public Utilities Commission ("CPUC").


PNG, an Ohio corporation, entered into a Master Services Agreement (the "MSA") with Pac-West, a California corporation and authorized carrier of local exchange and interexchange telecommunications services within California and other states. (Compl., filed May 11, 2010, ¶¶ 4-6.) Pursuant to the MSA, Pac-West agreed to provide PNG various inbound and outbound interstate and intrastate telecommunications services, including Internet access and services. (Id. ¶ 6.) The rates Pac-West would charge PNG for these services were set forth in rate declarations that were periodically amended under the terms and conditions of the MSA. (Id. ¶¶ 6-7.)

PNG alleges from September 1, 2008 through March 1, 2009, Pac-West charged PNG an amount in excess of the rates dictated by the applicable rate declarations. (Id. ¶ 8.) PNG was unaware of these excess charges until March 2009 and paid the amounts invoiced by Pac-West. (Id. ¶ 9.) As a result, PNG alleges that it overpaid Pac-West by $489,668.74. (Id.) In April 2009, PNG notified Pac-West of the overpayments and requested a reimbursement or credit. (Id. ¶ 11.) Pac-West issued a credit in favor of PNG in the amount of $208,044.81, but refused to reimburse PNG or credit its account for the remainder of the alleged overpayment. (Id. ¶¶ 11-12.)

PNG filed its complaint on May 11, 2010, asserting seven claims for relief: (1) violation of the Federal Telecommunications Act of 1996, 47 U.S.C. § 151 et seq.; (2) breach of contract; (3) promissory estoppel; (4) unjust enrichment; (5) conversion; (6) common counts--money paid by mistake; and (7) declaratory relief.


I. Judicial Notice

In ruling upon a motion to dismiss, the court may consider matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). Rule 201 permits a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute" because the fact is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court can take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

"Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). "The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id. The policy concern underlying the rule is to prevent plaintiffs "from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superceded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).

II. Rule 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may by motion raise the defense that the court lacks jurisdiction over the subject matter of a claim. Fed. R. Civ. P. 12(b)(1). It is well established that the party seeking to invoke the jurisdiction of the federal court bears the burden of establishing the court's subject matter jurisdiction. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

On a motion to dismiss pursuant to Rule 12(b)(1), the standards the court is to apply vary according to the nature of the jurisdictional challenge. A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of jurisdiction contained in the complaint as insufficient on their face to demonstrate the existence of jurisdiction (a "facial attack") or may be made as a "speaking motion" attacking the existence of subject matter jurisdiction in fact (a "factual attack"). Thornhill Publ'g Co. v. ...

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