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Cooke v. AT&T Corp.

March 23, 2007

ANDREW P. COOKE, ET AL. PLAINTIFFS,
v.
AT&T CORP., DEFENDANT.



The opinion of the court was delivered by: Judge Holschuh

Magistrate Judge Kemp

MEMORANDUM OPINION AND ORDER

Plaintiffs Andrew and Elizabeth Cooke filed suit against Defendant AT&T Corporation, alleging numerous causes of action arising from AT&T's attempts to collect money for long distance services that Plaintiffs neither requested nor used. This matter is currently before the Court on Defendant's motion for judgment on the pleadings as to Count Three (Consumer Sales Practices Act) and Count Six (Ohio Racketeer Influenced Corrupt Organizations Act) of Plaintiffs' complaint. (Record at 25).

I. BACKGROUND

Plaintiffs filed suit in response to alleged incessant bill collection efforts by AT&T. Plaintiffs claim that, beginning in January of 2004, AT&T billed them for long distance services that they neither requested, wanted, or used. (Am. Compl. ¶ 5). Although Plaintiffs attempted to resolve the billing dispute through AT&T's customer service representatives, their efforts were unsuccessful. Because Plaintiffs disputed the bills, they refused to pay them. They soon began receiving harassing collection calls and letters. (Id. at ¶¶ 6-7). Plaintiffs' demands that AT&T cease the collection calls were also unsuccessful. (Id. ¶ 8). Callers refused to identify themselves or put Plaintiffs in contact with a supervisor. (Id. ¶ 10). Plaintiffs believe they received hundreds of collections calls -- up to eight a day. (Id. ¶ 11).

In March, 2004, Plaintiff Andrew Cooke waited on hold for approximately 45-60 minutes to speak to an AT&T customer service representative to resolve this problem. (Id. ¶ 13). That representative was allegedly unable to correct the billing problem, and was unwilling to stop the telephone calls. Although Plaintiff asked to speak with a supervisor, the representative refused his request. (Id.). Plaintiffs then proceeded to file a complaint with the Public Utilities Commission of Ohio. (Id. ¶ 14).

On April 5, 2004, Plaintiffs received a letter of apology from Andy Green, a representative of AT&T's Customer Care Unit. (Id. ¶ 15). The letter stated that Plaintiffs' account would be credited, leaving a $0.00 balance. (Id.). Although the promised credit was posted to the account, AT&T continued to bill Plaintiffs for additional services. (Id. ¶ 16). Plaintiffs sent a letter to Mr. Green requesting an explanation. Billing temporarily stopped, but recommenced in September, 2004. (Id. ¶ 19).

Since September, 2004, Plaintiffs have received hundreds of additional collection phone calls from AT&T. (Id. ¶ 20). Details of one week's worth of calls are included in the amended complaint. (Id. ¶ 22). While many of the phone numbers are registered as "Out of Area," Plaintiffs are convinced they are from AT&T. (Id. ¶ 23). Plaintiffs contend that at least some of the calls originate from overseas and are made from a variety of phone numbers to cloak the identity of AT&T's collection service. (Id. ¶ 27). The callers allegedly: (1) refuse to provide their complete names; (2) refuse to identify the call country or call center of origin; (3) refuse to identify the corporation that employs them; (4) often refuse to connect Plaintiffs to a supervisor; and (5) if they agree to contact a supervisor, they put Plaintiffs on hold for a prolonged period. (Id. ¶ 28).

II. PROCEDURAL POSTURE

After Plaintiffs filed suit in state court, Defendant removed the case to federal court. Defendant filed a motion for judgment on the pleadings as to Count Three (Consumer Sales Practices Act) and Count Six ("Ohio Racketeer Influenced Corrupt Organizations Act")of Plaintiffs' complaint. Since the time the motion was filed, Plaintiffs have filed an amended complaint, dropping the Consumer Sales Practices Act claim, thus rendering the motion for judgment on the pleadings partially moot.*fn1 The amended complaint, however, reasserts a violation of the "Ohio Racketeer Influenced Corrupt Organizations Act." This Memorandum Opinion and Order is therefore directed solely at that claim.

III. STANDARD OF REVIEW

Motions for judgment on the pleadings brought pursuant to Federal Rule of Civil Procedure 12(c) are evaluated in much the same way as Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief may be granted. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998); Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001); Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999). The purpose of a motion under either rule is to test the sufficiency of the complaint. When determining the sufficiency of a complaint, a court will apply the principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Ziegler, 249 F.3d at 512.

When considering a motion for judgment on the pleadings, a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. See Grindstaff, 133 F.3d at 421. However, it will not accept conclusions of law or unwarranted inferences cast in the form of factual allegations. Id. The Court will, however, indulge all reasonable inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072, 1076-77 n.6 (6th Cir. 1972). Unless claiming fraud or mistake, complaints need not be pled ...


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