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Teliax, Inc. v. Verizon Services Corp.

United States District Court, D. Colorado

August 6, 2018

TELIAX, INC., Plaintiff,



         On January 12, 2018, Plaintiff Teliax, Inc. (“plaintiff”) filed a Complaint against Defendant Verizon Services Corp. (“defendant”), asserting the following claims for relief: (1) violation of Section 201(b) of the Communications Act, 42 U.S.C. § 201(b) (Claim One); (2) breach of contract (Claim Two); (3) account stated (Claim Three); (4) quantum meruit (Claim Four); and (5) unjust enrichment (Claim Five). (ECF No. 1.)

         On February 28, 2018, defendant filed a partial motion to dismiss Claims One, Three, Four, and Five (“the motion to dismiss”), pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). (ECF No. 22.) Plaintiff filed a response to the motion to dismiss (ECF No. 23), and defendant then filed a reply (ECF No. 24).

         I. Legal Standard

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). In doing so, “a court may look both to the complaint itself and to any documents attached as exhibits to the complaint.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). In the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955 (2007). Conclusory allegations, however, are insufficient. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). A complaint warrants dismissal if it fails “in toto to render [plaintiff's] entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14.

         II. Factual Background

         The Court assumes the truth of the following pertinent, non-conclusory allegations from the Complaint.

         Plaintiff's business is primarily engaged in the telecommunications industry. (ECF No. 1 at ¶ 6.) For several years, plaintiff has routed telephony call traffic, and provided related services, to defendant for which defendant was required to pay plaintiff pursuant to a tariff (“the Tariff”) that plaintiff filed with the Federal Communications Commission (“the FCC”). (Id. at ¶ 7.) As a result of certain disputes between plaintiff and defendant regarding payments owed by defendant pursuant to the Tariff, the parties entered into a Confidential Settlement Agreement and Release as of January 26, 2015 (“the Settlement Agreement”). (Id. at ¶ 8.)

         One of the services plaintiff provides is “toll free” or “8YY” calling. (Id. at ¶ 9.) Toll-free service involves a subscriber agreeing to pay an interexchange carrier (“IXC”) for all calls made to it using a pre-designated 800 number. (Id.) Plaintiff also provides interstate toll-free origination services on both a retail and wholesale basis. (Id. at ¶ 12.)

         On or about October 24, 2017, defendant informed plaintiff that it believed most of the 8YY calls plaintiff sent to defendant were fraudulent in nature. (Id. at ¶ 18.) In response, plaintiff offered to identify and block such calls before delivery to defendant. (Id. at ¶ 19.) In order to take this action, plaintiff requested that defendant provide information used to identify calls as fraudulent. (Id.) Defendant refused to provide plaintiff with the requested information. (Id. at ¶ 20.) Instead, defendant continued to accept all 8YY calls from plaintiff, and continued to deliver such calls to its toll-free subscribers and bill them for these calls. (Id.) Despite accepting the calls, defendant has refused to pay plaintiff's billed charges for the same. (Id. at ¶ 21.) As of the filing of the Complaint, defendant owed plaintiff for amounts invoiced in September, October, November, and December 2017. (Id. at ¶ 15.) Invoices attached to the Complaint allegedly reflect that the total amount invoiced and not paid equals $1, 251, 928.32. (Id.) The amounts owing to plaintiff under the invoices are due pursuant to the terms of the Settlement Agreement. (Id. at ¶ 8.)

         On October 30, 2017, pursuant to the Settlement Agreement, defendant sent written notice, advising plaintiff that the Settlement Agreement would terminate on November 30, 2017. (Id. at ¶ 16.) After November 30, 2017, services provided to defendant will be billed pursuant to the Tariff. (Id.)

         III. Discussion

         In the briefing on the motion to dismiss, the parties split their arguments into two categories. A category related to Claim One, and a category related to Claims Three to Five. The Court follows the same approach herein.

         A. Claim One-Violation of ...

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