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Communication Management Services LLC v. Qwest Corporation

United States District Court, D. Oregon

June 20, 2018

COMMUNICATION MANAGEMENT SERVICES, LLC; DAVEL COMMUNICATIONS; NSC COMMUNICATIONS PUBLIC SERVICES CORP.; CENTRAL TELEPHONE, INC.; INTERWEST TEL, LLC; INTERWEST TELECOM SERVICES CORP.; VALLEY PAY PHONES, INC.; NATIONAL PAYPHONE SERVICES, LLC; K. WEST ENTERPRISES, LLC; T & C MANAGEMENT, LLC; CORBAN TECHNOLOGIES, INC.; NORTHWEST PUBLIC COMMUNICATIONS COUNCIL; and PACIFIC NORTHWEST PAYPHONES, INC., Plaintiffs,
v.
QWEST CORPORATION; UNIDENTIFIED CORPORATIONS I-X; and JOHN DOES 1-10, Defendants.

          FRANKLIN G. PATRICK Attorney for Plaintiffs.

          LAWRENCE H. REICHMAN Attorneys for Defendant Qwest.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         On May 29, 2018, the Ninth Circuit issued a Mandate (#72) remanding this matter to this Court. In its Memorandum Opinion the Ninth Circuit affirmed in part and reversed and remanded in part this Court's Opinion and Order (#59) issued December 12, 2014, as follows: affirmed dismissal of Plaintiffs' Claims 1-8 and 12-14 with prejudice, affirmed dismissal of Claim 9 without prejudice to amend, reversed dismissal of Claims 10 and 11, and remanded Plaintiffs' Claims 10 and 11 for this Court to consider whether those claims should be remanded, in turn, to state court for resolution.

         For the reasons that follow, the Court DECLINES to exercise supplemental jurisdiction as to Plaintiffs' remaining state-law claims and REMANDS this case to the Multnomah County Circuit Court.

         BACKGROUND

         Plaintiffs initially filed this case in Multnomah County Circuit Court in 2013. Plaintiffs alleged 14 claims against Defendants based on specific performance; unjust enrichment; promissory estoppel; third-party beneficiary; conversion; intentional fraud; negligent fraud; violation of Oregon Deceptive Trade Practices Act, Oregon Revised Statutes § 605.608; interference with business relationships; breach of contract; and constructive trust. Specifically, in Claim Nine Plaintiffs raised a claim under Oregon Revised Statutes § 759.185 in which Plaintiffs asserted their payment of interim rates higher than the “new services test” (NST) compliant rates triggered a statutory right to mandatory refunds. In Claim Ten Plaintiffs asserted Defendant Qwest provided undue preferences and advantages in telephone-exchange services to Plaintiffs' competitors in violation of Oregon Revised Statutes § 759.275. In Claim Eleven Plaintiffs alleged Qwest allowed FSH Communications, LLC; Qwest's own payphone services; and Plaintiffs' other competitors to access network elements that Qwest denied to Plaintiffs in violation of Oregon Revised Statutes § 759.455.

         On February 13, 2014, Qwest removed the state-court action to this Court based on federal-question jurisdiction.

         On February 28, 2014, Qwest filed a Motion to Dismiss all of Plaintiffs' claims on the grounds that the claims were filed untimely, barred by claim preclusion, vested in the exclusive jurisdiction of the Public Utilities Commission (PUC), and did not state a claim on the merits.

         As noted, on December 15, 2014, the Court issued an Opinion and Order dismissing all of Plaintiffs' claims with prejudice and entered Judgment in favor of Qwest.

         On January 13, 2015, Plaintiffs filed a Notice of Appeal to the Ninth Circuit.

         On February 20, 2018, the Ninth Circuit affirmed dismissal as to all claims except Claims 10-11.

         As noted, on May 29, 2018, the Ninth Circuit remanded the case to this Court.

         On May 29, 2018, the Court directed the parties to file a joint statement as to whether this Court or the state court should resolve the remaining claims and ...


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