Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Globaleyes Telecommunications, Inc. v. Verizon North

March 1, 2010

GLOBALEYES TELECOMMUNICATIONS, INC., APPELLANT,
v.
VERIZON NORTH, INC., APPELLEE.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

A. Procedural and Jurisdictional Overview

On October 16, 2007 in adversary case No. 06-4129 (the "adversary proceeding"), the United States Bankruptcy Court issued an Order granting summary judgment from which Globaleyes Telecommunications, Inc. timely appealed to this Court. Globaleyes Telecomm., Inc. v. Verizon N., Inc. (In re Globaleyes Telecomm., Inc.) (Globaleyes II), No. 06-4129 (Bankr. S.D. Ill. Oct. 16, 2007) (Meyers, J.) (Doc. 69). The Court has subject-matter jurisdiction over the appeal because district courts have jurisdiction over appeals "from final judgments, orders, and decrees" of bankruptcy judges in cases referred to them. 28 U.S.C. § 158(a) (2006).

In August of 2006, Globaleyes reopened its underlying Chapter 11 Case, In re Globaleyes Telecomm., Inc., No. 03-42797 (Bankr. S.D. Ill. reopened Aug. 2, 2006) (the "bankruptcy case"), which had been closed since January of 2005 after confirmation of a plan of reorganization. It then filed the adversary proceeding against Appellee Verizon North, Inc. alleging that Verizon's erroneous billing practices and fraudulent misrepresentations resulted in over-billing in excess of $750,000.00. Verizon has refunded $208,419.21, leaving roughly $550,000.00 in dispute.

The Amended Complaint in the adversary proceeding sounded in three counts against Verizon. (No. 06-4129, Doc. 9.) Counts I and III sought to recover money damages from Verizon for alleged breaches of contract and other wrongdoing-arising entirely under Illinois state law- that pre-dated the filing of its Bankruptcy Case.*fn1 The Bankruptcy Court dismissed these two state law counts because it lacked the requisite subject-matter jurisdiction to hear them. Globaleyes Telecomm., Inc. v. Verizon N., Inc. (In re Globaleyes Telecomm., Inc.)(Globaleyes I), No. 06-4129, slip op. at 1 (Bankr. S.D. Ill. Dec. 5, 2006) (Doc. 35) (citing Fed. R. Civ. P. 12(b)(1)).

In Count II, the only surviving claim, Globaleyes objected to and requested that the Court entirely disallow Claim No. 13, in the sum of $203,193.00, filed by Verizon in the Bankruptcy Case. (Am. Compl. ¶¶ 22--23.) In support of its objection, Globaleyes asserted that Verizon had voluntarily refunded certain charges for telecommunications services that accrued, and that Globaleyes paid to Verizon, after it initiated its Bankruptcy Case on November 21, 2003 (the "Petition Date"). Both parties moved for summary judgment on Count II, and the Bankruptcy Court granted Verizon's motion. Globaleyes II, No. 06-4129, slip op. at 1.

Globaleyes raises 4 issues in support of its appeal:

1) Did the bankruptcy court err in its interpretation of the billing provisions of the First (the "First ICA") (1999 GTE Interconnection Agreement) and Second Interconnection Agreement (the "Second ICA") 2002 (Fuzion Interconnection Agreement) by determining the proportionate share usage of the special access trunks by determining internet traffic originated by Verizon is included in the data field of total usage but not allocated as Verizon originated usage?

2) Did the bankruptcy court err in ruling that the fraudulent misrepresentations of Verizon [Verizon stated the inability to measure a proportional share of the traffic on the interconnection trunks would have no bearing on the financial obligations of the parties] did not bar Verizon from raising the contractual provisions of the First and Second Interconnection Agreement which provides that written notice of any billing dispute must be within six (6) months of the corresponding billing statement date and that any billing dispute not raised within that six (6) month period would be deemed waived?

3) Did the bankruptcy court err in dismissing Counts I and III of the amended complaint seeking affirmative relief and refund of the overcharges Verizon North collected from Globaleyes pre-petition?

4) Did the bankruptcy court err in overruling the Globaleyes objection to the proof of claim filed by Verizon North (Claim No. 13)?

B. The Parties

Plaintiff Globaleyes is a telecommunications carrier that provides service to customers in Illinois. Defendant Verizon furnishes numerous regulated telecommunications services and facilities to various types of customers across the United States, including other carriers. In Illinois, Verizon is one of the so-called Incumbent Local Exchange Carriers ("ILECs") that provides local telephone service over its established network. In order to provide service to its own customers, Globaleyes is required to interconnect with Verizon's network. Globaleyes does so by purchasing DS-1 or "special access" circuits from Verizon (the "Facilities"), the terms and conditions of which relationship are governed by a written Intercommunication Agreement ("ICA") between the parties.

C. Applicable Standards of Review

Federal Rule of Bankruptcy Procedure 8013 provides that, on appeal, the District Court "may affirm, modify, or reverse a bankruptcy judge's . . . order . . . or remand with instructions for further proceedings." Rule 8013 further provides that "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses."

Case law of this Circuit similarly instructs that a bankruptcy judge's "[f]actual findings are reviewed for clear error; [and] legal conclusions are reviewed de novo." In re Doctors Hosp. of Hyde Park, Inc., 474 F.3d 421, 426 (7th Cir. 2007); accord In re Crosswhite, 148 F.3d 879, 881 (7th Cir. 1998); Meyer v. Rigdon, 36 F.3d 1375, 1378(7th Cir. 1994). In fact, the standard of review that a district court applies on appeal from a bankruptcy judgment is the same standard that a Court of Appeals applies. Monarch Air Service, Inc. v. Solow (In re Midway Airlines, Inc.), 383 F.3d 663, 668 (7th Cir. 2004). However, granting a motion for summary judgment is a legal conclusion, meaning that it is reviewed de novo. Id. A district court will affirm a grant of summary judgment if there are no genuine issues as to any material facts and if the moving party is entitled to judgment as a matter of law. See id. (citing Fed. R. Civ. P. 56(c)). A district court can also affirm a summary judgment "on any ground supported by the record, even if it was not relied upon by the court below." See id. (citing Johnson v. Gudmundsson, 35 F.3d 1104, 1115 (7th Cir. 1994)).

D. The Facts

The following facts, taken verbatim from the challenged bankruptcy judges' summary-judgment order, are undisputed*fn2 with the exception of ¶¶ 18, 24 and 27, which Globaleyes challenges:

1. The only unresolved claim remaining in this adversary proceeding is Count II of Plaintiff's Amended Complaint. In that count, Plaintiff Globaleyes Telecommunications, Inc. ("Globaleyes") objects to and requests that the Court entirely disallow Claim No. 13, in the sum of $203,193.00, filed by Defendant Verizon North Inc. ("Verizon") in underlying Chapter 11 Case No. 03-42797 (the "Bankruptcy Case"). Claim No. 13 is comprised almost entirely of charges for certain Verizon telecommunications facilities that accrued prior to the Petition Date but were never paid by Globaleyes.

2. Verizon furnishes numerous regulated telecommunications services and facilities to various types of customers across the United States, including other carriers. In Illinois, Verizon is one of the so- called Incumbent Local Exchange Carriers ("ILECs") that provides local telephone service over its established network.

3. Globaleyes is a telecommunications carrier that provides service to customers in Illinois. In order to provide service to its own customers, Globaleyes is required to interconnect with Verizon's network. Globaleyes does so by purchasing DS-1 or "special access" circuits from Verizon (the "Facilities"), the terms and conditions of which relationship are governed by a written Intercommunication Agreement ("ICA") between the parties.

4. The Facilities are two-way circuits that carry telecommunications traffic in both directions-i.e., they transport traffic originating with Globaleyes' customers and either carried over or terminating on Verizon's network, as well as traffic originating with Verizon's customers and carried over or terminating on Globaleyes' network.

5. Globaleyes first obtained the Facilities from Verizon's predecessor, GTE North Incorporated ("GTE"), pursuant to a voluntarily negotiated ICA dated on or about October 22, 1999 (the "First ICA").

6. The provision of the First ICA governing Verizon's charges to Globaleyes for the Facilities is Section 4.2 of Article V. Sub-section 4.2.3 of that article, in particular, provided as follows:

Special Access and/or CLEC Dedicated Transport: [Verizon] will charge special access and/or switched access rates from the applicable [Verizon] intrastate access tariff. Charges will be reduced to reflect the proportionate share of the facility that is used for transport of traffic originated by [Verizon]. The Parties will negotiate an initial factor representative of the proportionate share of the facilities. This factor will be updated quarterly in like manner or as the Parties otherwise agree.

(First ICA, Article V at § 4.2.3.)

7. The parties also agreed in Section 4.2 of that agreement, however, that "[o]nly Local Traffic and IntraLATA Toll Traffic will be used for calculation of this compensation. ESP/ISP Traffic is excluded from this compensation . . . " (First ICA, Article V at § 4.2 (emphasis added).) ESP/ISP Traffic, in turn, was defined elsewhere in the First ICA as "[t]raffic bound to any Enhanced Service Provider or Internet Service Provider." (First ICA, Article II at § 1.30.)

8. The First ICA also required Globaleyes to provide Verizon with written notice of any billing dispute within six (6) months of the corresponding billing statement date. The parties agreed that any billing dispute not raised within such six-month period would be deemed waived. (First ICA, Article III at § 10.2.)

9. On or about December 6, 1999, Globaleyes and Verizon submitted a Joint Petition to the Illinois Commerce Commission ("ICC") in order to obtain its approval of the First ICA. The Joint Petition submitted "pursuant to 47 U.S.C. § 252(a)(1) and 252(e)," also contained the following joint representations to the ICC by Globaleyes and Verizon:

The proposed Agreement . . . was negotiated voluntarily between [Verizon] and Globaleyes. Accordingly, [Verizon] and Globaleyes are requesting approval of the Agreement pursuant to 47 U.S.C. § 252(a)(1) and 252(e).

10. Nor do agreements voluntarily negotiated between or among parties have to comply with the standards set forth in 47 U.S.C. § 251(b) & (c) or the pricing standards set forth in 47 U.S.C. § 252(d). The Joint Petition was signed on Globaleyes' behalf by its principal, Andrew Aiken. Thereafter, the First ICA was approved by the ICC.

11. Globaleyes subsequently entered into a new, voluntarily negotiated ICA with Verizon, effective as of June 21, 2002 (the "Second ICA"). In this instance, Globaleyes actually elected to adopt an ICA that Verizon had previously negotiated with another carrier, Fuzion Wireless ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.