Opinion
Case No. 1:00-CV-125 Case No. 1:00-CV-141
June 26, 2000
OPINION
Plaintiff David Walker has filed two separate lawsuits, involving substantially the same legal claims, against General Telephone Company (now represented by its successor GTE North Incorporated) and Michigan Bell Telephone Company. Both Defendants have filed dispositive motions asking for dismissal or summary judgment due to lack of standing, res judicata, collateral estoppel, lack of state action, and statutes of limitations. Both motions have raised matters outside the pleadings and, as such, can be considered motions for summary judgment. See Federal Rule of Civil Procedure 12(b). Under Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). However, to the extent that the motions relate to standing and subject matter jurisdiction, the pertinent legal standards for determining the motions are found in Federal Rule of Civil Procedure 12(b)(1) and the decision of RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125 (6th Cir. 1996).
This Court begins its analysis by taking judicial notice, at the request of Defendants, of two previous lawsuits filed in the Western District of Michigan. In 1991, Direct Dial Corporation sued Defendants General Telephone Company and Michigan Bell Telephone Company in Case No. 1:91CV-864 (sometimes referred to mistakenly as Case No. 1:91-CV-846) after having failed to obtain relief in the Muskegon County Circuit Court on similar allegations. The lawsuit alleged anti-trust and breach of contract claims against the Defendants for failing to provide particular telephone services to Direct Dial Corporation. This Court dismissed some claims against General Telephone Company and Michigan Bell Telephone Company on the merits and dismissed other claims due to lack of jurisdiction because the Michigan Public Service Commission ("M.P.S.C.") had primary jurisdiction to resolve particular claims respecting tariffs and service.
Direct Dial Corporation then pursued a regulatory complaint before the M.P.S.C. In 1993, the M.P.S.C. determined that Direct Dial Corporation's regulatory claims should be dismissed. The dismissal was affirmed upon appeal by the Ingham County Circuit Court. The Michigan Court of Appeals and Michigan Supreme Court then denied leave to appeal.
In 1997, Direct Dial Corporation then moved to reinstate Case No. 1:91-CV-864 in this Court pursuant to Federal Rule of Civil Procedure 60(b). The Court denied the request because, among other reasons, the M.P.S.C.'s findings collaterally estopped Direct Dial Corporation from reasserting its claims. The decision was affirmed by the Sixth Circuit Court of Appeals by decision of March 10, 1999. Direct Dial Corp. v. Michigan Bell Telephone Co., 178 F.3d 1294, 1999 W.L. 187489 (6th Cir. March 10, 1999) (unpublished decision).
In 1997, David Walker personally sued Defendants General Telephone Company and Michigan Bell Telephone Company (as well as the Michigan Public Service Commission) in Case No. 1:97-CV-1001 relating to the conduct described in the earlier suit and based on similar legal theories. The Court, on Defendants' motion, dismissed those claims against the telephone companies due to lack of standing in 1998. The dismissal was later affirmed by the Sixth Circuit Court of Appeals. See Walker v. Michigan Public Service Commission et al., 201 F.3d 442, 1999 WL 1253093 (6th Cir. Dec. 17, 1999) (unpublished decision). In resolving the appeal, the Sixth Circuit Court of Appeals noted that the Plaintiff had failed to assert a shareholders derivative suit as part of the pleadings in the suit.
In the instant suits, David Walker, on behalf of shareholders of Direct Dial Corporation, filed his Complaint in Case No. 1:00-CV-125 pro se on February 24, 2000 and filed his Complaint in Case No. 1:00-CV-141 pro se on March 1, 2000. The theory of each Complaint was that Defendants Michigan Bell Telephone Company (in Case No. 1:00-CV-125) and General Telephone Company (in Case No. 1:00-CV-141) breached antitrust, telecommunications, contract, constitutional and tort law requirements by denials of service (more or less identical to the allegations in the previous suits) and, as such, were liable to shareholders.
By Order of March 7, 2000 (in Case No. 1:00-CV-141) and March 10, 2000 (in Case No. 1:00-CV-125), this Court determined that Plaintiff, a non-attorney, had in each Complaint purported to represent other shareholders in apparent violation of the Local Civil Rules pertaining to attorney practice. Therefore, each Order required Plaintiff to either amend his Complaint to assert only claims on behalf of himself or to obtain licensed counsel to file his Complaint on behalf of others. On March 29, 2000, Plaintiff responded to each Order by filing an Amended Complaint in each case, pro se, limited to his losses as the majority shareholder.
On April 21, 2000, Defendant General Telephone Company filed its Motion to Dismiss on the grounds of lack of standing, res judicata, collateral estoppel, and statute of limitations. On May 3, 2000, Defendant Michigan Bell Telephone filed its Motion for Summary Judgment based on similar grounds. Plaintiff has responded to each Motion. He has argued that he was authorized to proceed in this matter by the Court's Order of March 7, 2000 and Order of March 10, 2000. He has also argued that the arguments made by Defendants for dismissal and summary judgment should not prevail because some of the complained of conduct relates to events occurring since the filing dates of the previous law suits, i.e., 1996, 1997 and 2000 correspondence between Defendants and Direct Dial Corporation relating to denial of service to Direct Dial Corporation. Both motions have now been fully briefed and oral argument is unnecessary under the circumstances of these cases. See Local Civil Rule 7.2(d). Plaintiff has also moved for summary judgment in both cases. His motions have now been fully briefed and oral argument is unnecessary regarding such motions.
Coincident to these several motions, the Magistrate Judge assigned this matter granted Plaintiff leave to file his First Amended Complaint in each suit which states additional allegations including some relating to the Telecommunications Act of 1996, 47 U.S.C. § 207. ( See Dkt. No. 16, Case No. 1:00-CV-141; Dkt. No. 17, Case No. 1:00-CV-125.) Plaintiff then filed his First Amended Complaint in both cases on May 25, 2000. (Dkt. No. 17, Case No. 1:00-CV-141; Dkt. No. 18, Case No. 1:00-CV-125.) Upon review of the motions, pleadings, evidence and argument filed, and the record of previous litigations, the Court determines that all claims contained in the Plaintiff's First Amended Complaint in each case are barred because of lack of standing ( see Walker v. Michigan Public Service Commission, 201 F.3d 442, 1999 W.L. 1253093 (6th Cir. Dec. 17, 1999) (unpublished), Vinci v. Waste Management, Inc., 80 F.3d 1372,1375 (9th Cir. 1996) and other cases cited by Defendants), because of collateral estoppel, res judicata and the law of the case ( see Sanders Confectionery Products v. Heller Financial, Inc., 973 F.2d 474 (6th Cir. 1992), United States v. Moored, 38 F.3d 1419, 1421-22 6th Cir. 1994), and other cases cited by Defendants), because of the relevant statutes of limitations which have now expired ( seelegal authorities cited by Defendants), and because of lack of state action (as to all constitutional claims and claims under 42 U.S.C. § 1983). Furthermore, the facts that Plaintiff has now pled his claims in the form of a shareholder derivative action and has included claims of Direct Dial Corporation for denial of service in 1996, 1997 and 2000 do not save this action from dismissal because Plaintiff lacks standing to assert all of these claims and because some, if not all, of the claims are barred by res judicata, collateral estoppel and the law of the case.
CONCLUSION
In accordance with this Opinion, the Court determines that Defendants' Motion to Dismiss (Dkt. No. 6, Case No. 1:00-CV-141) and Motion for Summary Judgment (Dkt. No. 8, Case No. 1:00 CV-125) shall be granted and the instant actions be dismissed pursuant to Federal Rule of Civil Procedure 12 and 56. Plaintiff's Motion for Summary Judgment in Case No. 1:00-CV-125 (Dkt. No. 15) and Motion for Summary Judgment in Case No. 1:00-CV-141 (Dkt. No. 13) shall be denied. Judgments shall issue consistent with this Opinion.