Qwest Communications Company LLC v. Tekstar Communications, Inc. et al

Filing 261

ORDER. IT IS HEREBY ORDERED: 1. The Court ADOPTS the Amended Report and Recommendation of United States Magistrate Judge Steven E. Rau dated November 20, 2013 250 . 2. Defendant Free Conferencing Corporation's Motion to Dismiss Fir st Amended Complaint 139 is GRANTED in part and DENIED in part as follows: a. To the extent the Motion seeks dismissal of Count I: Tortious Interference with Contracts (Intrastate and Interstate Access Tariffs), it is DENIED; b. The Motion is G RANTED in all other respects, and the following claims are dismissed: Count II: Common Law Unfair Competition; Count IV: Fraudulent Concealment; Count V: Tortious Interference with Qwest's LCR Contracts; and Count VI: Unjust Enrichment. 3. De fendant Audiocom LLC's Motion to Dismiss Amended Complaint 144 is GRANTED in part and DENIED in part as follows: a. To the extent the Motion seeks dismissal based on lack of subject-matter jurisdiction, it is DENIED; b. To the extent the Motion seeks dismissal of Count I: Tortious Interference with Contracts (Intrastate and Interstate Access Tariffs), it is DENIED; c. The Motion is GRANTED in all other respects, and the following claims are dismissed: Count II: Common Law Unfair Co mpetition; Count III: Second Unfair Competition Claim; Count IV: Fraudulent Concealment; Count V: Tortious Interference with Qwest's LCR Contracts; and Count VI: Unjust Enrichment. 4. Defendants Vast Communications and Basement Ventures LLC� 39;s Motion to Dismiss 166 is GRANTED in part and DENIED in part as follows: a. To the extent the Motion seeks dismissal of Count I: Tortious Interference with Contracts (Intrastate and Interstate Access Tariffs), it is DENIED; b. The Motion is GRANTED in all other respects, and the following claims are dismissed: Count II: Common Law Unfair Competition; Count IV: Fraudulent Concealment; Count V: Tortious Interference with Qwest's LCR Contracts; and Count VI: Unjust Enrichment. 5. D efendant Ripple Communications, Inc.'s Motion to Dismiss Pursuant to Rule 12(b)(6) and 12(b)(1) 176 is GRANTED in part and DENIED in part as follows: a. To the extent the Motion seeks dismissal based on lack of subject-matter jurisdiction, i t is DENIED; b. To the extent the Motion seeks dismissal of Count I: Tortious Interference with Contracts (Intrastate and Interstate Access Tariffs), it is DENIED; c. The Motion is GRANTED in all other respects, and the following claims are dism issed: Count II: Common Law Unfair Competition; Count III: Second Unfair Competition Claim; Count IV: Fraudulent Concealment; Count V: Tortious Interference with Qwests LCR Contracts; and Count VI: Unjust Enrichment. (Written Opinion). Signed by Chief Judge Michael J. Davis on 1/3/14. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

QWEST COMMUNICATIONS COMPANY, LLC,
Plaintiff,

v.

ORDER
Civil File No. 10-490 (MJD/SER)

FREE CONFERENCING CORP., et al.,
Defendants.
John T. Osgood, Sandra L. Potter, and Charles W. Steese, Steese, Evans &
Frankel, PC, and Jason D. Topp, CenturyLink, Counsel for Plaintiff.
Daniel J. Herber and Jonathan W. Dettmann, Faegre Baker Daniels LLP, Counsel
for Defendant Free Conferencing Corp.
Larry D. Espel, Green Espel PLLP, Counsel for Defendant Audiocom, LLC.
Gregory R. Merz, Gray Plant Mooty Mooty & Bennett, PA, Counsel for
Defendants Basement Ventures, LLC and Vast Communications, LLC.
Edward P. Gothard, Nowalsky, Bronston & Gothard, PLLP, and Kelly K. Pierce,
Ross & Orenstein LLC, Counsel for Defendant Ripple Communications, Inc.

The above-entitled matter comes before the Court upon the Amended
Report and Recommendation of United States Magistrate Judge Steven E. Rau

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dated November 20, 2013. All parties, with the exception of Global Conference
Partners, filed objections to the Amended Report and Recommendation.
Pursuant to statute, the Court has conducted a de novo review upon the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court ADOPTS the Amended Report and Recommendation of United States
Magistrate Judge Rau dated November 20, 2013. The Court further declines to
dismiss, for the reasons explained in the Report and Recommendation at pages
18-20 and 26-27, Qwest’s request, under Count I, for damages incurred as a result
of traffic delivered through the least cost routing system. The Court also declines
to certify any questions to the Minnesota Supreme Court because this is not a
case involving “a close question and lack of state sources enabling a
nonconjectural determination” such that the Court should “avoid its
responsibility to determine all issues before it.” Perkins v. Clark Equip. Co.,
Melrose Div., 823 F.2d 207, 209 (8th Cir. 1987) (citation omitted).
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. The Court ADOPTS the Amended Report and Recommendation of
United States Magistrate Judge Steven E. Rau dated November 20, 2013
[Docket No. 250].

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2. Defendant Free Conferencing Corporation’s Motion to Dismiss
First Amended Complaint [Docket No. 139] is GRANTED in part
and DENIED in part as follows:
a. To the extent the Motion seeks dismissal of Count I:
Tortious Interference with Contracts (Intrastate and
Interstate Access Tariffs), it is DENIED;
b. The Motion is GRANTED in all other respects, and the
following claims are dismissed: Count II: Common Law
Unfair Competition; Count IV: Fraudulent Concealment;
Count V: Tortious Interference with Qwest’s LCR
Contracts; and Count VI: Unjust Enrichment.
3. Defendant Audiocom LLC’s Motion to Dismiss Amended
Complaint [Docket No. 144] is GRANTED in part and DENIED
in part as follows:
a. To the extent the Motion seeks dismissal based on lack of
subject-matter jurisdiction, it is DENIED;
b. To the extent the Motion seeks dismissal of Count I:
Tortious Interference with Contracts (Intrastate and
Interstate Access Tariffs), it is DENIED;
c. The Motion is GRANTED in all other respects, and the
following claims are dismissed: Count II: Common Law
Unfair Competition; Count III: Second Unfair Competition
Claim; Count IV: Fraudulent Concealment; Count V:
Tortious Interference with Qwest’s LCR Contracts; and
Count VI: Unjust Enrichment.
4. Defendants Vast Communications and Basement Ventures LLC’s
Motion to Dismiss [Docket No. 166] is GRANTED in part and
DENIED in part as follows:

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a. To the extent the Motion seeks dismissal of Count I:
Tortious Interference with Contracts (Intrastate and
Interstate Access Tariffs), it is DENIED;
b. The Motion is GRANTED in all other respects, and the
following claims are dismissed: Count II: Common Law
Unfair Competition; Count IV: Fraudulent Concealment;
Count V: Tortious Interference with Qwest’s LCR
Contracts; and Count VI: Unjust Enrichment.
5. Defendant Ripple Communications, Inc.’s Motion to Dismiss
Pursuant to Rule 12(b)(6) and 12(b)(1) [Docket No. 176] is
GRANTED in part and DENIED in part as follows:
a. To the extent the Motion seeks dismissal based on lack of
subject-matter jurisdiction, it is DENIED;
b. To the extent the Motion seeks dismissal of Count I:
Tortious Interference with Contracts (Intrastate and
Interstate Access Tariffs), it is DENIED;
c. The Motion is GRANTED in all other respects, and the
following claims are dismissed: Count II: Common Law
Unfair Competition; Count III: Second Unfair Competition
Claim; Count IV: Fraudulent Concealment; Count V:
Tortious Interference with Qwest’s LCR Contracts; and
Count VI: Unjust Enrichment.

Dated: January 3, 2014

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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