The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
Order Denying Application for Writ of Attachment
Pursuant to Rule 64 of the FRCP and section 483.010 of the California Code of Civil Procedure, Plaintiff NORTH COUNTY COMMUNICATIONS CORPORATION (hereinafter "NCC" or "Plaintiff") has filed an Application for a Writ of Attachment and Right to Attach Order [Doc. No. 38] against Defendant SPRINT COMMUNICATIONS COMPANY, L.P., ("Defendant") to collect an outstanding account balance of $4,693,980.08 (total interstate and intrastate access charges as of January 2011, excluding any applicable late fees, interest charges, and attorneys. fees). The Defendant has filed an opposition requesting the Court deny Plaintiff's request for attachment on the grounds that the Plaintiff has failed to meet the statutory requirements.*fn1 Based upon the parties moving papers and for the reasons set forth below, Plaintiff's Application for a Writ of Attachment and Right to Attach Order is hereby DENIED.
The Plaintiff, NCC, filed a First Amended Complaint ("FAC") on December 15, 2009, [Doc. No. 3], in which NCC alleges breach of contract, breach of implied contract, unjust enrichment and unfair competition. On April 26, 2010, Defendant, Sprint, filed its Answer and Counterclaim, [Doc. No. 19], which alleges unfair imposition of charges under 47 U.S.C. §§ 203, 206 and 207; unfair and unreasonable rates under 47 U.S.C. §§ 201(b), 206 and 207; breach of State Tariff Obligations; unjust enrichment; alternative breach of contract; and declaratory relief.
This breach of contract case presents a dispute over whether Sprint was obligated to pay NCC "access charges" for calls delivered from Sprint's IXC network to NCC's network for delivery to called parties. NCC claims such charges are due pursuant to a Service Agreement [Doc. No. 38-5]. The Plaintiff, NCC, is a competitive local exchange carrier ("CLEC") that provides telecommunications services in areas that include Arizona, California, Illinois, and Oregon. [Doc. No. 3, ¶ 9.] The Defendant, Sprint, is, among other things, a long distance carrier or interexchange carrier ("IXC") that delivers interstate and intrastate long distance calls to NCC.
I. Standard for Issuance of Right to Attach Order and Writ of Attachment
California's attachment law sets forth the following requirements:
(a) Except as otherwise provided by statute, attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.
(b) An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement, statute, or other rule of law (including any mortgage or deed of trust of realty and any statutory, common law, or equitable lien on real property, but excluding any security interest in fixtures subject to Division 9 (commencing with Section 9101) of the Commercial Code). . .
(c) If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession. An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where the property sold or leased, or licensed for use, the services furnished, or the money loaned was used by the defendant primarily for personal, family, or household purposes.
(d) An attachment may be issued pursuant to this section whether or not other forms of relief are demanded.
Cal.Code Civ. Proc. § 483.010. A plaintiff applying for writ of attachment must file a supporting affidavit showing that "[t]he plaintiff on the facts presented would be entitled to a judgment on the claim upon which the application is based" and "that the property sought to be ...