United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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.)
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).
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.
Court assumes the truth of the following pertinent,
non-conclusory allegations from the Complaint.
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.)
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.)
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.)
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
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.
Claim One-Violation of ...