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Bechtold v. Sprint Nextel Corp.

October 30, 2008

MICHAEL BECHTOLD, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SPRINT NEXTEL CORPORATION, D/B/A SPRINT NEXTEL, NEXTEL OR SPRINT AND F/K/A/ SPRINT CORPORATION, SPRINT SPECTRUM L.P. A/K/A/ SPRINT PCS, SPRINT SOLUTIONS, INC., SPRINT/UNITED MANAGEMENT COMPANY, NEXTEL RETAIL STORES, NEXTEL OPERATIONS, INC., NEXTEL PARTNERS OPERATING CORP., AND NEXTEL WEST CORP., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Defendants's Second Motion to Dismiss (Doc. 72) under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has responded (Doc. 74) and Defendants have replied (Doc. 80). For the following reasons, the Court DENIES the Motion.

BACKGROUND

I. Procedural Posture

Plaintiff Paula Appleby (Appleby) originally filed a purported class action complaint against Defendants Sprint Nextel Corporation, d/b/a Sprint Nextel, Nextel or Sprint and f/k/a/ Sprint Corporation, Sprint Spectrum L.P. a/k/a/ Sprint PCS, Sprint Solutions, Inc., Sprint/United Management Company, Nextel Retail Stores, Nextel Operations, Inc., Nextel Partners Operating Corp., and Nextel West Corp., (hereinafter collectively "Sprint") on January 11, 2008. Sprint filed a motion to dismiss the complaint, which the Court granted. The Court found that Appleby's complaint contained numerous allegations of Defendants's wrongful conduct toward other consumers, but did not sufficiently allege that Appleby herself was injured by such wrongful conduct. The Court found that the lack of information contained in the allegations particular to Appleby meant that Appleby could not establish that she had standing to bring suit, because she could not point to an injury to herself fairly attributable to Sprint's actions. Neither could Appleby meet the requirements of the Federal Rules of Civil Procedure, because she had not given Defendants fair notice of the claims against them, nor alleged sufficient facts to show that she had a plausible right to relief. The Court granted Appleby leave to amend her complaint to address these deficiencies. Later the Court granted Appleby leave to withdraw from the suit and substitute a new named plaintiff, Michael Bechtold (Bechtold). Bechtold filed an amended complaint, and it is to the Amended Complaint that Sprint's Motion to Dismiss is addressed.

II. Facts

For purposes of a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam ) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.2007). The Court, accepting all of Bechtold's allegations as true and drawing all reasonable inferences it his favor, finds the following facts for purposes of this motion.

In December 2005, Bechtold purchased two cellular telephones and cellular telephone service from Sprint via a Sprint agent working at the Radioshack store in the Alton Square Mall. Sprint's agent did not disclose to Bechtold that he was agreeing to a two-year service contract and that he would be charged an early termination fee if he chose to cancel his service contract before the two years had expired. Had Bechtold known that the service contract was for a two-year period and could not be cancelled prior to the expiration of that time without paying a fee, he would not have chosen Sprint as his cellular telephone service provider. The service contract was not memorialized in a writing signed by Bechtold. Sprint assigned Bechtold account number 835786053 for his service account.

In March 2006, Bechtold called Sprint's toll free customer service number in order to cancel his cellular telephone service. Sprint's telephone representative informed Bechtold that his service contract was for a two-year period which began in December 2005. Therefore, Sprint told Bechtold, if he chose to discontinue Sprint's cellular telephone service, he would be assessed an early termination fee. Bechtold did not cancel his Sprint Cellular telephone service at that time because of Sprint's representations.

In December 2006, one of the cellular telephones on Bechtold's account broke. He went to the Sprint store in Fairview Heights, Illinois to replace it. A Sprint agent assisted him in replacing his inoperable phone. At no time did Sprint's agent disclose to Bechtold that by replacing his broken phone, he would be agreeing to a new two-year cellular telephone service contract. This new service contract was not memorialized in a writing signed by Bechtold.

Prior to December 2007, Bechtold began noticing that his monthly cellular telephone bill included unauthorized charges and fees, making his total bill much more than he had anticipated it being when he first opened his Sprint account. Bechtold contacted Sprint by calling the toll free customer service number. He complained about the unauthorized fees, but Sprint's telephone representative refused to remove or reduce the charges.

In December 2007, at the end of his initial two-year cellular telephone service contract with Sprint, Bechtold contacted Sprint via the toll free customer service number in order to cancel his cellular telephone service. Sprint's telephone representative told Bechtold that by replacing his inoperative phone in December 2006, Bechtold had agreed to a new two-year cellular telephone service contract with Sprint. Once again, Sprint told Bechtold that if he chose to discontinue Sprint's cellular telephone service, he would be assessed an early termination fee. Bechtold did not cancel his Sprint cellular telephone service at that time because of Sprint's representations.

Sprint either falsely told Bechtold he was committed to the service contracts and falsely told him that he could be assessed an early termination fee in order to get Bechtold to continue using and paying for Sprint's services when he was under no obligation to do so, or Sprint fraudulently induced Bechtold into ...


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