Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02231-RJB

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Filed 01/23/2008

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AMES J. MITTERMILLER, Cal. Bar No. 85177 [email protected] - RANK J. P LE K, Cal. Bar No. 167852 olek(&,,sheDDardmullin.com EN, Cal. BrNo. 222095 a j dineen^asheppardmullin. coin SHEPARD MULLIN, RICHTER & HAMPTON LZP A Limited Liability Partnership Including Professional Corporations 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619-338-6500 Facsimile: 619-234-3815 Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINTSPECTRUM L.P. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UTILITY CONSUMERS' ACTION NETWORK and ERIC TAYLOR, on behalf of themselves, their members and/or all others similarly situated, as applicable, Plaintiffs,
V.

Case No. 07 CV 2231 W (LSP) DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)

SPRINT SOLUTIONS, INC.; SPRINT SPECTRUM L.P.; SPRINT-NEXTEL CORPORATION, Defendants.

Judge: Hon. Thomas J. Whelan Courtroom: Seven Date: March 3, 2008 Time: 10:30 a.m. NO ORAL ARGUMENT PER LOCAL RULE 7.1(d)(1)

28 -1W02-WEST:8JCD 1 \400684139.1 USDC Case No. 07 CV 2231 W (LSP) DEFENDANTS' NO OF MO AND MO TO DISMISS

Case 3:07-cv-02231-RJB

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Filed 01/23/2008

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TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on March 3, 2008, at 10:30 a.m., or as soon thereafter as this matter may be heard in Courtroom Seven before the Honorable Thomas J. Whelan of the above -entitled Court, located at 940 Front Street, San Diego, California 92101, Defendants Sprint Solutions, Inc. and Sprint Spectrum L.P. (collectively "Sprint") will and hereby do move the Court pursuant to Federal Rule of Civil Procedure 12(b)(1) for an order dismissing the claims of Plaintiff Utility Consumers' Action Network ("ULAN") for lack of subject matter jurisdiction and to stay this case and refer Plaintiffs' fifth cause of action to the Federal Communications Commission ("FCC") pursuant to the primary jurisdiction doctrine.

Unless requested by the Court, there will be no oral argument on this motion, pursuant to Local Rule 7.1(d)(1).

Sprint bases this Motion on the following grounds:

1.

Plaintiff UCAN has not suffered an injury in fact to itself and

therefore lacks standing to sue.

2.

Plaintiffs' fifth claim for relief based on alleged violation of the

Federal Communications Act must be referred to the Federal Communications Commission under the primary jurisdiction doctrine and the remainder of this case stayed.

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Case 3:07-cv-02231-RJB

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Filed 01/23/2008

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This Motion is based upon this Notice of Motion and Motion, Sprint's Memorandum of Points and Authorities in support thereof and all of the pleadings, records, and papers on file herein, as well as such other oral and/or documentary evidence as may be presented at or before the time of the hearing on this Motion.

DATED: January 22, 2008 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

s/James J. Mittermiller Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. E-mail: [email protected]

W02-WEST:8JCD1\400684139.1 USDC Case No. 07 CV 2231 W (LSP)

DEFENDANTS' NO OF MO AND MO TO DISMISS