United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants' Partial Motion
to Dismiss Count I of Plaintiff's Complaint. (Doc. # 11).
The Motion is fully briefed. (Docs. # 11, 15, 16). For the
reasons explained below, the Motion is due to be granted.
Emergency Telephone Services Act (“ETSA”),
Ala. Code § 11-98-1 et seq., established 911 as
the statewide emergency telephone number and created
Emergency Communication Districts (“ECDs”) in
order to form local emergency telephone services (“911
services”). (Docs. # 1 at ¶ 11; 11 at p. 2). Prior
to October 1, 2013, the ETSA authorized municipalities and
counties to assess charges on exchange access lines and Voice
over Internet Protocol (“VoIP”) telephone
services (“911 charges”) in order to fund the
ECDs' 911 services. (Docs. # 1 at ¶ 2, 11; 11 at p.
2). Birmingham Emergency Communication District (the
“District”) is an ECD that provides 911 services
throughout Birmingham, Alabama. (Doc. # 1 at ¶ 1).
Defendants Bandwidth.com, Inc. and Bandwidth.com CLEC, LLC
(collectively “Defendants” or
“Bandwidth”) sell both wholesale and retail
telecommunication services and provide business telephone
services through VoIP services. (Docs. # 1 at ¶ 3; 11 at
District filed this action against Bandwidth on March 13,
2017, alleging (1) violation of the ETSA, (2) negligence /
negligence per se / gross negligence / recklessness,
(3) breach of fiduciary duty, (4) wantonness, and (5)
misrepresentation / fraud. (Doc. # 1). Specifically,
Plaintiff alleges that Bandwidth failed to bill, collect, and
remit 911 charges in accordance with the ETSA, causing
Plaintiff to suffer substantial financial loss. (Id.
at ¶ 16-17, 26-27). On May 31, 2017, Bandwidth moved to
dismiss Count I (violation of the ETSA) to the extent that
the District seeks to impose liability on Bandwidth as a
wholesaler and not in connection with Bandwidth's retail
business. (Doc. # 11).
has filed similar actions in this district against other
telecommunications providers and in those actions has
asserted similar claims. See Birmingham Emergency
Commc'ns Dist. v. TW Telecom Holdings, Inc., et al.,
2:15-cv-00245-AKK; Birmingham Emergency Commc'ns
Dist. v. Level 3 Commc'ns, LLC, et al.,
2:15-cv-01088-AKK. On March 3, 2017, Judge Kallon of the
Northern District of Alabama analyzed the merits of a motion
to dismiss that involved the District's allegation that
Level 3 Communications, LLC and Level 3 Communications, Inc.
(collectively “Level 3”) violated the ETSA.
See Doc. # 25, Birmingham Emergency Commc'ns
Dist. v. Level 3 Commc'ns, LLC, et al.,
2:15-cv-01088-AKK. In its motion to dismiss, Level 3 argued
that the District's ETSA claim was due to be dismissed
because Level 3 provided wholesale services. See Id.
at p. 5. However, the issue was deemed moot for the following
Level 3 first asserts that the District's claims for
violations of the ETSA based on Level 3's provision of
wholesale services fails as a matter of law, because the ETSA
“imposes the obligation to bill, collect, and remit on
the service supplier that provides the service to the
end-user, thereby making it inapplicable to wholesale service
suppliers that have no relationship with end-users.”
Doc. 14 at 4-5. As it relates to the wholesale service
suppliers, the District does not challenge Level 3's
contention, and concedes that “[it] is not
alleging that the Defendants had a duty to bill, collect, and
remit 911 charges on telephone numbers or lines that the
Defendants provided, on a wholesale basis, to
resellers.” Doc. 16 at 6 (emphasis by plaintiff).
Therefore, because the District has clarified that it is only
pursuing claims related to Level 3's failure to remit 911
Charges for the retail services Level 3 provides directly to
service users, Level 3's motion, as it relates to the
provision of wholesale services, is moot.
See Id. at p. 5-6. Defendants allege that Plaintiff
has already conceded that no ETSA liability attaches to the
provision of wholesale telecommunications services. (Doc. #
11 at p. 5-6). Plaintiff counters that this case is
distinguishable from the District's case against Level 3
because the Complaint against Bandwidth “contains an
allegation that does not appear in the Level 3 case, namely
that ‘during the relevant time period, the Defendant
did not contractually require its reseller customers to pay
911 charges directly to the District and other 911
districts.'” (Doc. # 15 at p. 5 (citing Doc. # 1
Standard of Review
Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleaser is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557. In deciding a Rule
12(b)(6) motion to dismiss, courts view the allegations in
the complaint in the light most favorable to the non-moving
party. Watts v. Fla. Int'l. Univ., 495 F.3d
1289, 1295 (11th Cir. 2007).
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Candield,
Paddock & Stone, PLC, 413 Fed. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Twombly, 550 U.S. at 556. Further, “courts may
infer from the factual allegations in the complaint
‘obvious alternative explanation[s], ' which
suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 682). If the court determines that well-pleaded
facts, accepted as true, do not state a claim that is
plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 556.
the parties' disagreement centers on whether the ETSA
imposed a duty on telecommunication wholesalers prior to
October 1, 2013. To answer this question, the court first
examines the language of the ETSA. See Hallstrom v.
Tillamook Cty., 493 U.S. 20, 25 (1989)
(“‘[T]he starting point for interpreting a
statute is the language of the statute itself.'”).
If the statutory scheme of the ETSA is coherent and
consistent, there is “no need for a court to inquire
beyond the plain language” of the ETSA. United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 240
(1989). Furthermore, “[s]tatutory definitions such as
the one found in § 11-98-1 must be scrupulously