Level 3 Communications, LLC et al v. Illinois Bell Telephone Company et al

Filing 117

MEMORANDUM AND ORDER: IS HEREBY ORDERED that defendants motion for reconsideration and/or clarification of the April 10, 2017 Memorandum and Order [Doc. # 112 ] is granted. IT IS FURTHER ORDERED that plaintiffs claim is not barred by the statute of limitations provided under 47 U.S.C. §415(b). IT IS FURTHER ORDERED that all Level 3 and Broadwing Texas billing disputes that were tolled until Talk America but not filed before June 9, 2012 are untimely and barred. IT IS FURTHER ORDERED that all Level 3 and Broadwing Texas billing disputes occurring more than twelve months before June 7, 2013 are untimely pursuant to the Level 3 and Broadwing Texas ICAs and therefore barred. Signed by District Judge Carol E. Jackson on 7/24/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEVEL 3 COMMUNICATIONS, LLC, et al., )
)
Plaintiffs,
)
)
vs.
)
)
ILLINOIS BELL TELEPHONE
)
COMPANY, et al.,
)
)
Defendants.
)

Case No. 4:13-CV-1080 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion for reconsideration
and/or clarification of the April 10, 2017 order pertaining to the parties’ cross
motions for summary judgment on Phase I issues.

Plaintiffs have responded in

opposition and the issues are fully briefed.
I.

Background
In a Memorandum and Order filed on April 10, 2017, the Court granted in

part and denied in part the parties’ cross motions for summary judgment on Phase
I issues arising from plaintiffs’ allegations that defendants breached interconnection
agreements (“ICAs”) and violated the Telecommunications Act of 1966.

In the

instant motion, defendants’ request reconsideration of whether 47 U.S.C. § 415 can
be tolled by private agreement as a matter of law and seek clarification of the
Court’s conclusion that the Level 3 and Broadwing Texas ICAs required those
plaintiffs to bring their claims within 12 months of the Supreme Court’s decision in
Talk America, Inc. v. Michigan Bell Tel. Co., 564 U.S. 50, 63, 131 S. Ct. 2254,
2263, 180 L. Ed. 2d 96 (2011).

II.

Legal Standard
A district court has “the inherent power to reconsider and modify an

interlocutory order any time prior to the entry of judgment.” K.C. 1986 Ltd. P’ship
v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007) (internal quotation marks and
citation omitted). And although the Federal Rules of Civil Procedure do not
expressly provide for motions to reconsider, Rule 54(b) encompasses the power to
revise an interlocutory order any time prior to the entry of final judgment. See
Thunder Basin Coal Co., L.L.C. v. Zurich Am. Ins. Co., 2013 WL 6410012, at *1
(E.D. Mo. Dec. 9, 2013); Trickey v. Kaman Indus. Techs. Corp., 2011 WL 2118578,
at * 1–2 (E.D. Mo. May 26, 2011); Jiang v. Porter, 2016 WL 193388, at *1 (E.D.
Mo. Jan. 15, 2016) (applying Rule 54(b) to a motion to reconsider the denial of a
motion to dismiss). Specifically, Rule 54(b) states that:
[A]ny order . . . that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’
rights and liabilities.
Fed. R. Civ. P. 54(b).
“‘The exact standard applicable to the granting of a motion under Rule 54(b)
is not clear, though it is typically held to be less exacting than would be a motion
under Federal Rule of Civil Procedure 59(e), which is in turn less exacting than the
standards enunciated in Federal Rule of Civil [P]rocedure 60(b).’” Painters Dist.
Council No. 58 v. RDB Universal Servs., LLC, No. 4:14-CV-01812 (ERW), 2016 WL
4368098, at *2 (E.D. Mo. Aug. 16, 2016) (quoting Wells’ Dairy, Inc. v. Travelers
Indem. Co. of Ill., 336 F. Supp. 2d 906, 909 (N.D. Iowa 2004)). Furthermore, the
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provision

affords

district

courts

“substantial

discretion”

to

reconsider

prior

interlocutory orders. Robinson Mech. Contractors Inc. v. PTC Grp. Holding Corp.,
No. 1:15-CV-77 (SNLJ), 2017 WL 386541, at *2 (E.D. Mo. Jan. 27, 2017).
Under Rule 54(b), a court may reconsider an interlocutory order to “‘correct
any clearly or manifestly erroneous findings of fact or conclusions of law.’” Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Canada, No. 4:00-CV-1073 (CEJ), 2011
WL 1599550, at *1 (E.D. Mo. Apr. 27, 2011) (quoting Jones v. Casey’s Gen. Stores,
551 F. Supp. 2d 848, 854 (S.D. Iowa 2008)); see Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 414 (8th Cir. 1988). In particular, a motion to reconsider may
be granted if the earlier decision “(1) misunderstood a party, (2) made a decision
outside of the adversarial issues, or (3) would be rendered incorrect because of a
‘controlling or significant change in law’ since the issues were submitted to the
Court.’” Trickey, 2011 WL 2118578, at *2 (quoting Westinghouse Elec. Co. v.
United States, No. 4:03-CV-861, 2009 WL 881605, at *4 (E.D. Mo. Mar. 30,
2009)); see also Pet Quarters, Inc. v. Ladenburg Thalmann and Co., Inc., No. 4:04CV-00697-BRW, 2011 WL 1135902, at *1 (E.D. Ark. Mar. 28, 2011) (reasoning that
an “intervening change in the controlling law is a recognized ground for granting a
motion for reconsideration”).
A motion to reconsider under Rule 54(b), however, is “not a vehicle to
identify facts or legal arguments that could have been, but were not, raised at the
time the relevant motion was pending.” Julianello v. K-V- Pharm. Co., 791 F.3d
915, 923 (8th Cir. 2015); see also Evans v. Contract Callers, Inc., No. 4:10-CV2358 (FRB), 2012 WL 234653, at *2 (E.D. Mo. Jan. 25, 2012) (“Although the Court
has the power to revisit prior decisions of its own . . . in any circumstance, [it]

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should be loathe to do so in the absence of extraordinary circumstances such as
where the initial decision was clearly erroneous and would work a manifest
injustice.” (internal quotation marks and citation omitted; formatting in original)).
Finally, “when evaluating whether to grant a motion to reconsider, the Court also
has an interest in judicial economy and ensuring respect for the finality of its
decisions, values which would be undermined if it were to routinely reconsider its
interlocutory orders.” Trickey, 2011 WL 2118578, at *2 (citing Disc. Tobacco
Warehouse, Inc. v. Briggs Tobacco and Specialty Co., No. 3:09-CV-5078 (DGK),
2010 WL 3522476, at *1 (W.D. Mo. Sept. 2, 2010)).
III.

Discussion
Defendants’ request reconsideration and/or clarification on two points: (1)

whether as a matter of law 47 U.S.C. § 415 can be tolled by private agreement,
and (2) the Court’s conclusion that the Level 3 and Broadwing Texas ICAs required
those plaintiffs to bring their claims within 12 months of the Supreme Court’s
decision in Talk America.
A. Application of 47 U.S.C. § 415(b)
Defendants have first requested reconsideration of their argument that the
§415(b) limitation period cannot be tolled by private agreement. The Court briefly
touched on this provision during the Memorandum and Order, but will grant
defendants’ motion and further clarify its rationale.
In previous decisions, the Eighth Circuit has ruled that plaintiffs’ claims are
subject to the two-year statute of limitations, 47 U.S.C. § 415(b), which provides:
“[a]ll complaints against carriers for the recovery of damages not based on
overcharges shall be filed with the Commission within two years from the time the

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cause of action accrues, and not after, subject to subsection (d) of this section.”
See Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 675 (8th Cir. 2009)(citing 47
U.S.C. § 415(b)). Defendants argue that plaintiffs’ claims are barred to the extent
they arose more than two years before this action commenced on June 7, 2013.
Defendants rely on In the Matter of Am. Cellular Corp. & Dobson Cellular Sys., Inc.,
Complainants, 22 F.C.C. Rcd. 1083 (2007), and In the Matter of Operator
Commc'ns, Inc., Complainant, 20 F.C.C. Rcd. 19783 (2005) in support of their
argument. In both cases, the FCC decided that there was no tolling of the statute
of limitations in 47 U.S.C. § 415(b) absent fraud or deceit by the defendant. Am.
Cellular, at 1090; Operator Commc'ns, Inc., at 19788. However, two years later in
Firstcom, the Eighth Circuit upheld a denial of the doctrine of equitable tolling, not
based upon the FCC’s determination that there is no tolling of the 47 U.S.C. §
415(b) statute of limitations absent fraud or deceit, but because the party was
unable to demonstrate that it was entitled to equitable tolling. 555 F.3d at 674–75.
In making this determination the Eighth Circuit denied equitable tolling on the
grounds that the delay in bringing action was attributable to the losing parties’ own
actions, and that the circumstances that prevented filing of the claim was not
beyond the control of the losing party. Id. at 675.
Here, the parties specifically agreed to reserve their rights, remedies, and
arguments with respect to the Triennial Review Remand Order. Issues relevant to
this matter arising from the Triennial Review Remand Order were resolved and
clarified in Talk America. [Doc. #84-2, pp. 59-61, § 21.1]. In addition, plaintiffs
disputed the billing charges made by defendants during the relevant time period
and timely filed their claims pursuant to 47 U.S.C. §415(b) following the

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clarification of rights in Talk America; meeting the standard promulgated in
Firstcom to establish equitable tolling. Furthermore, courts within the Eighth Circuit
have previously permitted 47 U.S.C. § 415 to be tolled via a written agreement.
See Cent. Scott Tel. Co. v. Teleconnect Long Distance Servs. & Sys. Co., 832 F.
Supp. 1317, 1321 (S.D. Iowa 1993) (relying on a tolling agreement to establish the
limitations period under 47 U.S.C. §415).

Accordingly, the Court finds that as

matter of law 47 U.S.C. § 415 can be tolled by private agreement.
This Court has already determined that the plaintiffs’ reservation of rights in
the ICA tolled their claim until the Supreme Court resolved the dispute in Talk
America. In the April 10 Memorandum and Order, this Court provided that “[t]he
occurrence which gave rise to the dispute was the Supreme Court’s decision in Talk
America per the reservation of rights and remedies embedded in the parties’ ICAs.”
[Doc. #110, p. 24]. Thus, the date by which the plaintiffs’ claim accrued was June
9, 2011, the date on which Talk America was decided, because the parties explicitly
decided to reserve their rights and remedies under the interconnection agreements.
Plaintiffs filed their claims in this matter on June 7, 2013, less than two years after
the Talk America decision, and within the two-year time frame provided under 47
U.S.C. §415(b). Accordingly, the Court finds that plaintiffs’ claim is not barred by
the statute of limitations provided under 47 U.S.C. § 415(b) because the parties
tolled the statutory provision through the interconnection agreements.
B. Twelve-Month Contractual Limitations Period
Both plaintiffs and defendants have requested clarification of the Court’s
order regarding the extent plaintiffs’ claims are barred under the Level 3 and
Broadwing Texas interconnection agreements.

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The Level 3 ICAs, as well as the

Broadwing Texas ICA provide that “[n]o claims, under this Agreement or its
Appendices, shall be brought for disputed amounts more than twelve (12) months
from the date of the occurrence which gives rise to the dispute.” [Doc. #84-2, p.
38, § 10.1; Doc. #84-19, p. 27, § 11.8.1].

The Broadwing Texas ICA further

provides that: “Notwithstanding anything contained in this Agreement to the
contrary, a Party shall be entitled to dispute only those charges which appeared on
a bill date dated within the twelve (12) months immediately preceding the date on
which the Billing Party receives notice of such dispute.”

[Doc. #84-19, p. 27, §

11.8.1].
In the instant case, the date of the occurrence which gave rise to the dispute
was the Talk America decision on June 9, 2011 because the applicability of the
dispute provisions were tolled until Talk America was decided.

Thus, on June 9,

2011, all of plaintiffs’ claims were timely because the parties had reserved their
rights and remedies pursuant to the interconnection agreements. Under the terms
of the Level 3 and Broadwing Texas ICAs, plaintiffs were therefore required to
present their billing disputes within twelve months of the decision in Talk America
on June 9, 2011. Plaintiffs brought this action on June 7, 2013, more than twelve
months after the decision in Talk America. Thus, on June 9, 2012, twelve months
after the decision in Talk America, the billing disputes under the Level 3 and
Broadwing Texas ICAs that were tolled became untimely.

Accordingly, all billing

disputes that were tolled until Talk America but not filed before June 9, 2012 are
untimely and barred. Furthermore, all billing disputes occurring more than twelve
months before June 7, 2013 are also untimely pursuant to the Level 3 and

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Broadwing Texas ICAs and are therefore also barred. All billing disputes occurring
within twelve months of June 7, 2013 are timely and are not barred.
*

*

*

*

*

Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for reconsideration
and/or clarification of the April 10, 2017 Memorandum and Order [Doc. #112] is
granted.
IT IS FURTHER ORDERED that plaintiffs’ claim is not barred by the statute
of limitations provided under 47 U.S.C. §415(b).
IT IS FURTHER ORDERED that all Level 3 and Broadwing Texas billing
disputes that were tolled until Talk America but not filed before June 9, 2012 are
untimely and barred.
IT IS FURTHER ORDERED that all Level 3 and Broadwing Texas billing
disputes occurring more than twelve months before June 7, 2013 are untimely
pursuant to the Level 3 and Broadwing Texas ICAs and therefore barred.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of July, 2017.

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