800 SERVICES INC., a New Jersey corporation v. AT&T Corp., a New York corporation Appeal from the United States District Court for…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3519
800 SERVICES INC.,
a New Jersey corporation,
Appellant
v.
AT&T Corp.,
a New York corporation
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 98-cv-01539)
District Judge: Honorable Nicholas H. Politan
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2001
Before: MANSMANN, ROTH and FUENTES, Circuit Judges
(Memorandum Opinion filed: February 12, 2002)
MEMORANDUM OPINION
ROTH, Circuit Judge:
Plaintiff 800 Services Inc. appeals from the August 3, 2000 Final Order and the
subsequent September 18, 2000 interest calculation Order of the United States District
Court for the District of New Jersey.
800 Services was an "aggregator" of telecommunications services provided by
AT&T. Aggregators pool telecommunications service in order to provide discounted
service to their customers. AT&T is a provider of interstate long-distance
telecommunications service. The relationship between aggregators and providers is
contractual in nature, but the relationship is conducted within the confines of federal law,
particularly Title 11 of the Communications Act of 1934; as amended. See U.S.C. 201,
et seq. (West 2000). A contract between the parties required 800 Services to compensate
AT&T for any shortfall between the anticipated volume of usage and the actual volume of
services provided by AT&T.
Plaintiff’s complaint advanced twelve counts. The Counts included allegations
of unjust enrichment, slander and libel under New Jersey state law, intentional
interference with prospective economic advantage and similar interference with
contractual relations, unfair competition/trade libel and various claims under 201, 202

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and 203 of the Communications Act. AT&T counterclaimed for unpaid telephone usage
charges, shortfall charges resulting from contractual obligations and prejudgment interest.
The Final Order granted AT&T’s motion for summary judgment and awarded judgment
on the counterclaim. Our review of a District Court’s Final Order to grant summary
judgment is plenary. See Nelson v. County of Allegheny, 60 F.3d 1010, 1012 (3d
Cir.1995), cert. denied, 516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 213 (1996).
Summary judgment on the allegations under the Federal Communications Act was
properly granted by the District Court, as their prosecution was barred by the applicable
statute of limitations. Suits under the Communications Act must be filed within two
years of "the time the cause of action accrues." 47 U.S.C. 415(b) (West 2000). 800
Services filed its complaint, which alleged violations between September 1990 and July
1995, on April 6, 1998.
800 Services argues, however, that although the most recent alleged violation of
the Communications Act occurred more than two years prior to the complaint, the claims
are not barred due to the continuing wrong doctrine. The continuing wrong doctrine
applies to toll the statute of limitations if there is continuing affirmative wrongful
conduct. See Brenner v. Local 514, United Broth. of Carpenters and Joiners of America,
927 F.2d 1283, 1296 (3rd. Cir. 1991); see also 287 Corporate Center Associates v.
Township of Bridgewater 101 F.3d 320, 324 (3rd Cir. 1996) (not applying the doctrine
when there was no affirmative act by the defendant within the statutory period). The
District Court correctly found the doctrine inapplicable in this matter because there was
no continuing affirmative wrongful conduct during the statutory two year period prior to
800 Services filing of the complaint.
The District Court also properly granted summary judgement on the state law
claims. Under New Jersey Law, slander and libel claims must be brought within one
year. See N.J. Stat. ANN. 2A:14-3 (West 2000). 800 Services argues that a six year
statute of limitations for trade libel, as opposed to the one year statute of limitations for
slander and libel, was applicable. The District Court correctly characterized the
statements at issue as slander and libel, not as trade libel. The statements did not
constitute trade label since there is no evidence that AT&T made any false statements
regarding 800 Services or its affairs. As such, 800 Services’ claims sound in slander and
libel which are barred by the statute of limitations.
The District Court properly granted summary judgement on the unjust enrichment
and tortious interference state law claims as the claims were unsupported by the evidence.
To survive a motion for summary judgment, "[t]he non-moving party must make a
showing sufficient to establish the existence of each element of his case on which he will
bear the burden of proof at trial." Huang v. BP Amoco Corp, 271 F.3d 560, 564. (3rd Cir.
2001); see Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. To support its unjust enrichment
claim, 800 Services alleged that AT&T improperly used its customer lists and profited
from such conduct without apportioning profits to 800 Services. The District Court found
that 800 Services offered no admissible evidence in support of this contention and that the
deposition testimony was based on speculation, conjecture and industry "buzz." Such
evidence was properly found insufficient, as it would not carry the burden of proof at
trial. Plaintiff’s brief on appeal does allege that AT&T would not have been able to
switch customers from 800 Services’s accounts to AT&T’s without abuse of the customer
lists. However, the brief does not set forth any causal connection between the customer
list abuse and the switching of telecommunications providers. An individual consumer’s
choice to switch providers could be based on a number of different factors and, therefore,
does not necessarily evidence any impropriety on the part of AT&T.
Similarly, the District Court found a lack of evidence in support of 800 Services’s
tortious interference claims. Although 800 Services presumptively argues on appeal that
the business would have continued to flourish but for AT&T’s actions, it offers no details
to support that contention.
Finally, 800 Services contests the District Court’s award of damages under
AT&T’s counterclaim. The agreement between the parties was controlled by the Tariff
No. 2. Tariff No. 2 requires that the aggregator pay the provider for usage and shortfall
charges. 800 Services has not contested incurring usage charges or the amounts thereof.
Rather, 800 Services claims that AT&T violated an implied covenant of good faith and
fair dealing in the contract execution. As discussed above, the District Court found a lack
of evidence of slander, libel and tortious interference. Accordingly, we find that the

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District Court did not err in awarding damages for unpaid usage and shortfall charges to
AT&T. These counterclaim defenses offered by 800 Services mirror the claims offered in
the complaint; the defenses similarly lack the requisite evidentiary foundation.
For the reasons above we affirm the District Court.
TO THE CLERK:
Please file the foregoing Memorandum Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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