Corr Wireless Commc'ns, L.L.C. v. AT&T Inc.

907 F.Supp.2d 793

CORR WIRELESS COMMUNICATIONS, L.L.C., Cellular South, Inc., and Cellular South Licenses, LLC, Plaintiffs

v.AT & T, INC., AT & T Mobility LLC, Motorola Solutions, Inc., Motorola Mobility, Inc., Qualcomm Incorporated, and John Does 1–10, Defendants.

Civil Action No. 3:12CV036–SA.

United States District Court,

N.D. Mississippi,

Western Division.

Nov. 1, 2012.

Alan Walter Perry, Daniel J. Mulholland, Walter H. Boone, Forman, Perry, Watkins, Krutz & Tardy, PLLC, Brian Craig Kimball, Charles Louis McBride, Jr., Joseph Anthony Sclafani, Martin Patrick McDowell, Katie L. Wallace, Brunini, Grantham, Grower & Hewes, Walter T. Johnson, Watkins & Eager, Jackson, MS, for Plaintiffs.

Aaron M. Panner, Kenneth M. Fetterman, Michael K. Kellogg, William J. Rinner, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC, Washington, DC, David Walker Upchurch, Holland Ray Upchurch & Hillen, Tupelo, MS, for Defendant AT & T, Inc.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Defendant AT & T Inc. filed a Motion to Dismiss asserting that this Court lacks jurisdiction over AT & T Inc. under Rule 12(b)(2). On August 31, 2012, this Court dismissed Plaintiffs' claims against all Defendants pursuant to Rule 12(b)(6), with the exception of AT & T Inc. due to the outstanding personal jurisdiction motion. Because the Court lacks personal jurisdiction over AT & T Inc., that entity is hereby dismissed. However, even if the Court could assert jurisdiction over AT & T Inc., Plaintiffs' claims against it would likewise fail a 12(b)(6) inquiry.

Factual and Procedural Background

AT & T Inc. is incorporated in Delaware and is headquartered in Texas. Plaintiffs' Amended Complaint acknowledges that AT & T Inc.'s principal place of business is in Dallas, Texas. Plaintiffs contend that that entity is registered to do business in the State of Mississippi and has a registered agent for process in Mississippi. AT & T Inc. refutes this contention but acknowledges that there once was an “AT & T Inc.” registered with the Mississippi Secretary of State, but that entity is not the same AT & T Inc. that exists today. The “new” AT & T Inc. has never registered with the Mississippi Secretary of State, and Plaintiffs have not brought forth evidence that the entities are not the same. AT & T Inc. asserts it is solely a holding company that conducts no business directly with the public, does not own or maintain a telecommunications network, and perhaps most importantly, does not conduct business in Mississippi.

Plaintiffs' assert that “[w]ith respect to the matters which are the subject of this complaint, AT & T, Inc. and AT & T Mobility LLC have acted for themselves, and through direct or indirect subsidiaries and/or affiliates for whose actions and omissions they are responsible, including AT & T GNS Belgium SPRL.” Plaintiffs further lump all AT & T entities together and collectively refer to them as “AT & T.” Plaintiffs essentially contend that the AT & T entities, along with the other defendants conspired to manipulate the 3GPP standard setting process.¹ Plaintiffs assert that after the Defendants “caused 3GPP to fragment Band 12 by creating Band 17, AT & T and the other Defendants continued to preserve what their concerted action had wrought ( i.e., AT & T's private ecosystem) when that private ecosystem was threatened by Cellular South.” After Plaintiffs filed the aforementioned petition for rulemaking with the FCC, Plaintiffs maintain that AT & T and the other Defendants agreed to improperly delay Band Class 12 standards. Plaintiffs have also brought an exclusive dealing claim against the Defendants. As to the particular allegations against AT & T Inc., on page 115 of the complaint, Plaintiffs quote AT & T Inc.'s Chief Executive Officer, Randall Stephenson, as making a statement at a conference concerning competition in the spectrum marketplace.

AT & T Inc. filed this Motion to Dismiss pursuant to Rule 12(b)(2) requesting that the Court acknowledge that it lacks personal jurisdiction over AT & T Inc. as a holding company. In particular, AT & T Inc. contends that there is no basis for the Court to exercise personal jurisdiction under the Clayton Act, the Mississippi Long Arm Statute, or due process. Moreover, AT & T Inc. complains that Plaintiffs have failed to present evidence that AT & T Inc. and its subsidiaries have not maintained separate corporate identities and asserts that dismissal of AT & T Inc. is proper. AT & T Inc. attached an affidavit executed by Steven Threlkeld, the Executive Director of Accounting in the AT & T Services, Inc., Finance Department. In that capacity, Threlkeld is the Accounting Controller for numerous companies, including AT & T Inc. In response, Plaintiffs attached several judicial filings and pleadings by AT & T Inc., public comments to the FCC, and news articles they assert evidence that this Court has jurisdiction over AT & T Inc.

Personal Jurisdiction Standard

Federal Rule of Civil Procedure 4 provides that “[s]erving a summons or filing a waiver of services establishes personal jurisdiction over a defendant ... when authorized by federal statute. Fed.R.Civ.P. 4(k). “Absent a federal statute that provides more expansive personal jurisdiction, the personal jurisdiction of a federal district court is coterminous with that of a court of general jurisdiction of the state in which the district court sits.” Submersible Sys. v. Perforadora Cent., 249 F.3d 413, 418 (5th Cir.2001).

1. Statutory Authority—The Clayton Act

Plaintiffs contend that the Clayton Act, 15 U.S.C. § 22, provides for nationwide service of process over antitrust defendants, thus establishing personal jurisdiction over AT & T Inc. as it undeniably has minimum contacts with the United States. Defendants argue for a more restrictive reading of Section 12.

Section 12 of the Clayton Act provides:

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.

15 U.S.C. § 22. Section 12 consists of two separate clauses—the first relating to the venue and the second concerning service of process and, therefore, personal jurisdiction. See In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 293 (3rd Cir.2004). The parties dispute whether the two clauses of Section 12 should be read as an integrated whole or independently of each other. Specifically, they dispute whether the venue provision of the first clause of Section 12 must be satisfied before the plaintiffs can avail themselves of the authorization of worldwide service of process contained in the second clause.

As explained by one court:

the dispute centers on whether the jurisdiction provision operates independently from the venue provision, specifically, whether “in such cases” in the second clause refers to “any suit, action, or proceeding under the antitrust laws against a corporation” or only to antitrust actions against corporations brought in a judicial district in which the corporation is either an “inhabitant,” “may be found” or “transacts business.” If the first interpretation is adopted, plaintiffs can rely on 28 U.S.C. § 1391(d) [the Alien Venue Statute] which provides for venue in antitrust actions against foreign corporations “in any district” and on the second clause of Section 12 for personal jurisdiction over defendants based on a minimum contacts analysis considering their contacts with the United States as a whole. If the second interpretation prevails the service provision is only effective when, pursuant to Section 12's first clause, the action is brought in a district where the defendant resides, is found or transacts business.

In re Magnetic Audiotape Antitrust Litig., 171 F.Supp.2d 179, 184 (S.D.N.Y.2001), vacated sub nom. on other grounds, Texas Int'l Magnetics, Inc. v. BASF Aktiengesellschaft, 31 Fed.Appx. 738 (2d Cir.2002). The Plaintiffs dispute whether the present litigation can only be brought in a federal district where AT & T Inc. is an “inhabitant,” may be “found,” or “transacts business” based on its contacts with the forum district or state. Plaintiffs contend that this antitrust action may be brought in any federal district based on AT & T Inc.'s “minimum contacts” with the United States as a whole.

In support of their contention that the two clauses of Section 12 should be read independently, as opposed to interdependent, Plaintiffs cite case law, primarily from the Ninth and Third Circuits. Plaintiffs rely on the Ninth Circuit's pronouncement in Go–Video, Inc. v. Akai Electric Co., 885 F.2d 1406 (9th Cir.1989), to support their claim that Section 12 affords nationwide service of process independent of the venue requirement. In that case, the Ninth Circuit determined that the Section 12 phrase “in such cases” was facially ambiguous. Id. at 1408. The court ultimately held that “in such cases” refers to antitrust cases generally, as opposed to referring to cases in which the venue provision it follows in the text has been satisfied. Thus, venue is proper in federal antitrust suits if the venue requirements of Section 12 or 28 U.S.C. § 1391 are satisfied. To reach this determination, the Ninth Circuit reviewed its treatment of specific venue statutes as opposed to general venue statutes, the legislative history and interpretation of the Clayton Act, and the division among lower courts and other comments on the question. Id. at 1409–11. The Court further examined the “hidden intricacies” of the word “such” and looked to other statutes where antecedents and consequents were facially ambiguous. Id. at 1412. The conclusion reached by the Ninth Circuit after analyzing these facets of the Clayton Act was that process may be served on an antitrust defendant...