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ARONSON v. IDT CORPORATION

April 3, 2003

MARK B. ARONSON, UPON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF COUNTERCLAIM-DEFENDANT,
v.
IDT CORPORATION D/B/A IDT AMERICA, DEFENDANT/COUNTERCLAIM-PLAINTIFF



The opinion of the court was delivered by: Terrence F. Merry, United State District Judge

MEMORANDUM OPINION AND ORDER

Presently pending before the Court for disposition are the following:

(i) "Motion to Remand" filed by Plaintiff, Mark B. Aronson, upon behalf of himself and all others similarly situated, (Document No. 12) and the brief in opposition filed by Defendant, EDT Corporation d/b/a EDT America (Document No. 17-1); and

(ii) "Cross Motion for Referral of Issues to the [Federal Communications Commission] under the Doctrine of Primary Jurisdiction and for a Stay of the District Court Proceedings Pending the Referral" filed by Defendant EDT Corporation d/b/a EDT America (Document No. 17-2), the response in opposition filed Plaintiff, Mark B. Aronson, upon behalf of himself and all others similarly situated, (Document No. 21), and the Reply Brief filed by Defendant EDT Corporation d/b/a EDT America (Document No. 22).

After careful consideration of the motions, the filings in support and opposition thereto, the relevant case law, and after hearing and considering the oral arguments of counsel, the Court will deny the Motion to Remand, grant the Cross Motion for Referral of Issues to the Federal Communications Commission, and stay this matter pending resolution of the issues by the Federal Communications Commission.

PROCEDURAL HISTORY

On or about September 13, 2002, Mark Aronson ("Aronson"), on his own behalf and on behalf of all others similarly situated, filed a Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, against EDT Corporation, d/b/a EDT America ("EDT"), alleging breach of contract. Aronson alleges that without his authorization EDT requested his telephone service provider, Verizon, to switch his regional toll and long distance carrier from Global Crossing to AT&T Long Distance, which resulted in a $10.00 charge per phone to the customers of EDT.

The purported class members each obtained their regional toll and long distance telephone service from EDT and their local telephone service from Verizon. Aronson seeks to certify a class of as many as 500,000 persons and demands judgment against EDT for compensatory damages, consequential damages, punitive damages, costs including attorney's fees, and any other relief which the Court "deems fair and proper under the circumstances."

On October 7, 2002, EDT filed a Notice of Removal based on diversity of citizenship, two days later, on October 9, 2002, Aronson filed his first Motion to Remand. (Documents Nos, 1 and 2, respectively).

On October 16, 2002, EDT filed an amended Notice of Removal alleging both diversity jurisdiction and federal question jurisdiction. (Document No. 4).

On November 4, 2002, unaware of the amended Notice of Removal, the Court remanded the matter to state court based on lack of diversity. (Document No. 6). EDT then filed a Motion to Vacate, which the court granted on November 27, 2002. (Document Nos. 7 and 11, respectively).

On November 25, 2002, EDT filed its Answer and Affirmative Defenses to the Complaint as well as a Counterclaim. (Document No. 9).

On December 13, 2002, Aronson filed his second Motion to Remand. (Document No. 12).

On January 10, 2003, EDT responded to the Motion to Remand and filed a crossmotion for referral of issues to the Federal Communications Commission ("FCC") under the doctrine of primary jurisdiction and for a stay of the district ...


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