Petition for Writ of Certiorari — Robert J. DeBry and Associates v. Qwest Dex, Inc. (No. 06-983)

Docket No.

IN THE UNITED STATES SUPREME COURT

ROBERT J. DEBRY AND ASSOCIATES, P.C.,

a Utah corporation,

Petitioner,

VS.

QWEST DEX, INC., a Colorado corporation, and

DEX MEDIA WEST. LLC, a Delaware Limited Liability

corporation,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lynn P. Heward

Attorney for Petitioner

Robert J. DeBry & Associates

4252 South 700 East

Salt Lake City, UT 84107

(801) 262-8915

(a) QUESTION PRESENTED FOR REVIEW

The question presented for review is the following:

Where federal courts of appeals certify legal issues to

state supreme courts, and the state courts sidestep the legal

issues by twisting the facts, should this Court instruct the

federal courts of appeals to

(1) ignore the fact-finding rulings of the state courts,

and

(2) take the cases back and answer the state court

questions?

iii

(b) LIST OF PARTIES

The above caption of this case contains the names of all

the parties to the proceeding in the court whose judgment is

sought to be reviewed.

Robert J. DeBry and Associates, P.C. is a

nongovernmental Utah corporation. It does not have a parent

corporation, nor is there any publicly held company that owns

more than 10% of this corporation’s stock.

(c) TABLE OF CONTENTS

(a) QUESTION PRESENTED FOR REVIEW ........ 11

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(O) FARR OF CRRVEEINED 6 ccercesvcckseenerucess Vv

TABLE OF CITED AUTHORITIES .......... Vil

(d) CITATIONS OF OPINIONS AND ORDERS

ENTERED BELOW IN THIS CASE ........... |

(ec) BASIS FOR JURISDICTION ...... ccc cece ences l

(f) PERTINENT PROVISIONS FROM CONSTITUTIONS,

eRe Tks icteric eeseek ieee eeeeees 3

(a) STATEMENT OF THE CASE . nice se cecscevces 5

2, i FPS ere Serer ers Te rere es Mere sr ry 5

DeBry’s Legal Theory in State Court ..... 8

FEDERAL JURISDICTION BELOW .......... 9

Removal and Appeal .... 1... cc ccccnces 9

Certification OWGGr .. cc cicccccrcvesuss 9

et PORTED ih been esha cane seek 1]

I. THE UTAH SUPREME COURT HAD NO POWER

TO DECIDE FACT ISSUES. .......... 11

II. IMPORTANCE OF CERTIORARI ......... 14

Ce PE. hese vad cuedeen coast eee 16

i Orders entered in conjunction with judgment to be reviewed:

A Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Mar. 21, 2005) (order certifying

state law question)

C

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

2006 UT 41, 144 P.3d 1079

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Aug. 4, 2006)

ii Other relevant orders:

D

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 03cv0099 (D. Utah, Mar. 4, 2004) (order granting

defendants’ motion to dismiss)

Orders on rehearing:

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 20050299 (Utah, Sep. 15, 2006) (order denying

rehearing)

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Oct. 18, 2006) (order denying

rehearing)

TABLE OF CITED AUTHORITIES

CASES

Lehman Brothers v. Schein, 416 U%&. 386, 94 S. Ct. 1741, 40

L.Ed.2d 215 (1974)

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., 2006 UT

41, 144 P.3d 1079 1,9, 11-13, 16

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., No. 04-

4049 (10th Cir., Aug. 4, 2006) 1, 10, 16

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., No.

03cv0099 (D. Utah, Mar. 4, 2004)

Young v. Harper, 520 U.S. 143, 117 S.Ct. 1148, 137 L.Ed.2d

270 (1997)

CONSTITUTIONAL PROVISIONS

Article Ill of the United States Constitution

STATUTES

28 U.S.C. § 1332

28 U.S.C. § 1441

28 U.S.C. § 1446

28 U.S.C. § 2101

§13-1la-l, et seq., Utah Code

RULES

Rule 41,< * ) of the Utah Rules of Appellate Procedure . \\

OTHER

ABA Reporter’s Explanation of Changes to Model Rule 7.2

(d) CITATIONS OF OPINIONS AND ORDERS

ENTERED BELOW IN THIS CASE

The opinions and orders entered below in this case are

as follows:

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Mar. 21, 2005) (order certifying state

law question) (Appendix A)

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

2006 UT 41, 144 P.3d 1079 (rehearing denied, Sep. 15, 2006)

(Appendix B)

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Aug. 4, 2006) (rehearing denied, Oct.

18, 2006) (Appendix C)

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 03cv0099 (D. Utah, Mar. 4, 2004) (order granting

defendants’ motion to dismiss) (Appendix D)

(ec) BASIS FOR JURISDICTION

(1) Date the judgment sought to be reviewed was entered.

On August 4, 2006, the United States Court of Appeals

for the Tenth Circuit entered its Order and Judgment in Robert

J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., No. 04-4049

(App. C). Petitioner Robert J. DeBry and Associates

(“DeBry”) seeks review of that Judgment.

(ii) Date of order denying rehearing.

On October 18, 2006, the Tenth Circuit denied DeBry’s

Petition for Rehearing on the merits. (App. F.)

(iii) Extension of time for filing petition for rehearing.

On August 18, 2006, the Tenth Circuit had granted

DeBry an extension of time to submit a petition for rehearing

until 14 days after the Utah Supreme Court ruled on DeBry’s

state petition for rehearing in a related matter. The Utah

Supreme Court’s denied that petition for rehearing on

September 15, 2006. App. E. DeBry filed its Petition for

Rehearing with the Tenth Circuit within the 14 days allowed,

specifically, on September 29, 2006.

Under Rule 13 of the Rules of the Supreme Court of the

United States, DeBry has until January 16, 2007, to file a

petition for wnt of certiorari. Accordingly, this Petition for

Writ of Certiorari is timely filed, and this Court has

jurisdiction. Young v. Harper, 520 U.S. 143, 147, n. 1, 117

S.Ct. 1148, 137 L.Ed.2d 270 (1997).

(iv) Statutory provision conferring jurisdiction on certiorari.

This Court’s jurisdiction may be invoked by a petition

for writ of certiorari thus timely filed. 28 U.S.C. § 2101. The

judicial power of the United States is vested in the Supreme

Court. Article Ill, Section | of the United States Constitution.

This power extends to all cases between citizens of different

states. Article III, Section 2. Petitioner DeBry is a citizen of

Utah; respondents are not. Rather, the respondents are citizens

of Colorado and Delaware, respectively.

(f) PERTINENT PROVISIONS FROM

CONSTITUTIONS, STATUTES, ETC.

Article Ill of the United States Constitution

Section 1. The judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish. The

Judges, both of the supreme and inferior Courts, shall hold their

Offices during good Behaviour, and shali, at stated Times,

receive for their Services, a Compensation, which shall not be

diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made,

under their Authority;--to all Cases affecting Ambassadors,

other public Ministers and Consuls;--to all Cases of admiralty

and maritime Jurisdiction;--to Controversies to which the

United States shall be a Party;--to Controversies between two

or more States;--between a State and Citizens of another State;-

-between Citizens of different States;--between Citizens of the

same State claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

Chapter 28 of the United States Code:

Section 1332 (a) The district courts shall have original

jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000, exclusive of interest and

costs, and 1s between--

(1) citizens of different States;

Section 1441(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court of which

the district courts of the United States have onginal

jurisdiction, may be removed by the defendant or the

defendants, to the district court of the United States for the

district and division embracing the place where such action 1s

pending. For purposes of removal under this chapter, the

citizenship of defendants sued under fictitious names shall be

disregarded.

(d) Promptly after the filing of such notice of removal

of a civil action the defendant or defendants shall give written

notice thereof to all adverse parties and shall file a copy of the

notice with the clerk of such State court, which shall effect the

removal and the State court shall proceed no further unless and

until the case is remanded.

(g) STATEMENT OF THE CASE

FACTS

1. DeBry is a law firm located in Salt Lake City, Utah.

2. DeBry opened branch offices in Ogden,' Utah and

Provo, Utah. Robert J. DeBry and Assocs. P.C. v. Qwest Dex,

Inc., No. 04-4049 (10th Cir., Mar. 21, 2005) (order certifying

state law question) (hereafter, Certification Order).

3. DeBry purchased yellow pages advertising in the

Ogden and Provo yellow pages phone books. DeBry’s yellow

page advertising included local addresses for their Ogden and

Provo offices.”

4. Siegfried & Jensen‘ is a law firm located in Salt Lake

City. Siegfried and Jensen does not have branch offices or

local offices in Ogden or Provo. Nevertheless, Siegfried &

Jensen purchased yellow pages advertising in the Ogden and

Provo yellow pages. Below is a sample advertisement found

‘Ogden is a city of approximately 80,000 residents located 35

miles north of Salt Lake City.

*Provo is a city of approximately 110,000 residents located 45

miles south of Salt Lake City.

*See the Dex yellow pages for Ogden (2002/2003, pages 46-47)

and Provo (2002, pages 50-51).

“The law firm of Siegfried & Jensen is used here as an example

only. Other Salt Lake City law firms and Salt Lake City businesses with

no local offices in Ogden or Provo also purchase similar yellow page

advertising in the Ogden and Provo yellow pages.

5

PERSONAL INJURY

Automobile and Medical Malpractice

* Sieclere JENSEN

PHE LAW FIRM FOR ACCZDENT VICTIMS.

* Wrongful Death Claims = erer jniTIAL CONSULTATION

* Catastrophic Injuries CALLS TAKEN 24 HOURS

Pomorie" 399.0999

visit us at

r www. SESE Cane ene: com SE HABLA ESPANOL

on page 58 of the 2001/2002 Dex yellow pages for Ogden,

Utah. Note especially that no local address is listed in the

Ogden or Provo ad because the Siegfried & Jensen office is

really in Salt Lake City.

5. Note also that the prefix listed for Siegfried & Jensen

in the Ogden yellow pages (below) is 399. Page 98 of the

2001/2002 Ogden directory includes the following language:

The prefix(es) listed beside your community

[Ogden] . . . represent your local calling area

(317, 332, 334, 337, 340, 387, 392, 393, 394,

395, 398, 399, 409, 419, 436,452, 457, 459,

469, 475, 476, 479, 528, 605, 612, 620, 621,

622, 624, 625, 626, 627, 629, 640, 643, 648,

650, 659, 670, 681, 689, 697, 701, 704, 707,

720, 729, 730, 731, 732, 737, 740, 749, 751,

752, 757, 760, 761, 769, 778, 781, 782, 786,

810, 866, 881, 901, 917) (Emphasis added.)

6. As noted above, 399 is listed by Dex as an Ogden

prefix. But Siegfried & Jensen paid extra money to Dex to use

the 399 prefix in the Ogden yellow pages. This concept of

selling a local Ogden prefix (viz, 399) to a business with no

physical office in Ogden is known as a Market Expansion Line.

App. A-3.

7. A statistical survey in Ogden has shown that 67% of

Dex customers are “tricked or misled” when they see an

advertisement (such as the Siegfried and Jensen advertisement

on p. 8 above) in their Ogden directory which includes an

Ogden telephone number printed, but no address, because they

believe that the business or professional actually has a local

Ogden office, when there is in fact no local Ogden office (but

only a “Market Expansion Line’). /d.

8. American Bar Association’s Model Rule 7.2 states:

Any communication made pursuant to this Rule

shall include the name and office address of at

least one lawyer or law firm responsible for its

content.

9. The reasoning for this rule is found in ABA

Reporter’s Explanation of Changes to Mode] Rule 7.2:

Because . . . lawyers frequently advertise in

locations where they do not maintain an office,

the Commission has added a requirement that

each advertisement include an office address for

the law firm or lawyer named in the

advertisement. This information .. . will

provide prospective clients with important

information about where the lawyer or law firm

is located — an important fact in this era of

multi-jurisdictional advertising.

DeBry’s Legal Theory in State Court

10. Based upon all of the above facts, DeBry sued Dex

in state court under the Utah Truth In Advertising Act (§13-

lla-1l, et seq., Utah Code) (App. A-3):

(1) Deceptive trade practices occur when, in the

course of his business, vocation, or occupation:

(b) A person causes likelihood of confusion or

of misunderstanding as to the source,

sponsorship, approval, or certification of goods

or services.

*This case is not about lawyer ethics. However, the ABA Model

Rule is included here to show that the ABA has interpreted such conduct

(buying a yellow pages ad in a distant city without listing a physical

address) as misleading.

(d) A person uses deceptive representations or

designations of geographic origin in connection

with goods or services.

(t) A person engages in any other conduct

which similarly creates a likelihood of

confusion or of misunderstanding.

FEDERAL JURISDICTION BELOW

Removal and Appeal

11. On September 3, 2003, Dex removed the case to

federal court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.

App. A-3, 4. The U.S District Court for Utah had jurisdiction

of this controversy since DeBry is a citizen of Utah and Dex is

not, and DeBry has not restricted the amount of damages it

seeks to less than $75,000.

12. On March 5, 2004, the District Court for Utah

dismissed the action on its pleadings. App. D. DeBry appealed

the dismissal to the Tenth Circuit on March 12, 2004.

App. B-4.

Certification Order

13. After the case was briefed and argued, the Tenth

Circuit noted that no Utah appellate court had construed the

UTIAA. It therefore certified a question of law to the Utah

Supreme Court, reciting the substantive facts set forth above.

App. A. -

14. The Utah Supreme Court dutifully quoted the facts

in the certification order, but pointedly based its conclusions on

substantially different facts. App. B.

15. Based on these new facts, the Utah Supreme Court

concluded “Dex has not acted in violation of the Utah Truth in

Advertising Act (UTIAA).” App. B-9.

9

16. Within a week, the Tenth Circuit perfunctorily

affirmed the U.S./ District Court’s dismissal of this action.

App. C.

17. In like manner, the Tenth Circuit summarily denied

DeBry’s Petition for Rehearing. App. E.

10

(h) ARGUMENT

1. THE UTAH SUPREME COURT HAD NO POWER TO

DECIDE FACT ISSUES.

Rule 41(c)(2) of the Utah Rules of Appellate Procedure

states in part:

The [federal order of certification] shall also set

forth all facts which are relevant to the

determination of the certified question.

(Emphasis added.)

The Tenth Circuit Order Certifying Question of State

Law stated (App. A-2) that the Utah Court was given

[t]he facts relevant to the determination of the

certified question.

Hence, the Utah Supreme Court was to use the facts set forth in

the Certification Order. As shown below, however, the Utah

Court based its Opinion (App. B) on facts other than those set

forth in the Certification Order.

In the initial paragraphs of its Opinion (App. B-2 to -4),

the Utah Supreme Court recites the facts presented in the

Certification Order (App. A). [t also agrees that it must answer

a “question of law.” App. B-5. The Opinion, however, goes on

to rely upon (supposed) facts not found in the Certification

Order.

For example, the Certification Order (App. A-3) recited:

Dex’s telephone directories state “the prefix(es)

listed beside your community and _ those

communities listed below it, represent your

local calling area.” (Emphasis added.)

The Opinion (App. B-8), however, stated:

11

Dex merely lists the contact information .. .

regardless of the businesses’ geographic

locations. For example, by listing the [local]

number for the [distant] firm, Dex does not

represent the [distant] firm has an office in the

[local] calling area--it only informs customers

that the firm is willing to provide its services to

those located in the [local] calling area.

(Emphasis added.)

The (supposed) fact set forth above is found nowhere in

the Certification Order, and nowhere in the Dex telephone

directory.

Likewise, the Certification Order (App. A-3) recited:

67% of Dex customers are tricked or misled

when they see a “Market Expansion Line”

telephone number in their local Dex yellow

page directory with no listed address, because

they believe that the business or profession

actually has a [local] office. (Emphasis added.)

The Opinion (App. B-9), however, stated:

{[S]lome may presume that businesses with a

local number have an office in_ the

vicinity.(Emphasis added. )

In summary, the following chart gives examples of how

the Opinion of the Utah Supreme Court created facts different

from those set forth in the Tenth Circuit’s Certification Order:

12

FACTS ACCORDING

TO FEDERAL COURT

(U.S. TENTH CIRCUIT -

APP. A)

“67% of Dex customers are

tricked or misled” by the

type of advertisements at

issue in this case. App. A-

3. (Emphasis added.)

* * *

Dex’s telephone directories

state “the prefix(es) listed

beside your community and

those communities listed

below it, represent your

local calling area.” App. A-

2. (Emphasis added.)

FACTS ACCORDING

TO STATE COURT

(UTAH SUPREME

COURT - APP. B)

‘“... some may presume

that businesses with a local

number have an office in

the vicinity.” App. B-9.

(Emphasis added.)

* * *

{Bly listing the [local]

number for the [distant]

firm, Dex does not

represent the [distant] firm

has an office in the [local]

calling area--it only informs

customers that the firm 1s

willing to provide its

services to those located in

the [local] calling area.

App. B-8. (Emphasis

added.)

The difference between the two versions of facts

described above (the Utah Supreme Court version versus the

Tenth Circuit Court version) is huge. The reality is that 67% is

a majority — indeed a large majority. On the other hand, the

Oxford American College Dictionary, 2002 defines the word

“some” as follows:

At least a small amount or number of people or

things.

Further, the Oxford American College Dictionary defines the

word “trick” as

A cunning and skillful act or scheme intended to

deceive or outwit someone.

In sum, the Utah Supreme Court should have applied

Utah law to the factual scenario set forth in the Certification

Order. The Utah Supreme Court had no power to change the

facts.

Il. IMPORTANCE OF CERTIORARI

The concept that a federal court can ask (or “certify”)

questions of state law to state supreme courts represents a

delicate balance between federal and state courts. (Sometimes

referred to as comity.) As the United States Supreme Court

said in Lehman Brothers v. Schein, 416 U.S. 386, 391, 94S. Ct.

1741, 40 L.Ed.2d 215 (1974):

It [certification] does, of course, in the long run

save time, energy, and resources and helps build

a cooperative judicial federalism.

But state legal issues may be complex and time-

consuming. Therefore, a state supreme court may be tempted

(as here) to sidestep the legal issues by twisting the facts.

Probably, there are many many other cases, certified by federal

courts, where the state legal issue never gets answered. Andif -

that continues to happen (viz, state courts sidestepping legal

issues by twisting facts), the entire concept of state court

certification will crumble.

In summary, if state supreme courts (in certification

cases) sidestep the legal issue by twisting fact, the federal

courts of appeals must be instructed to ignore such fact-finding

rulings by state courts. Further, where state supreme courts (in

certification cases) ignore or sidestep the legal issue presented,

14

this Court must instruct federal courts that the case 1s not over.

Federal courts of appeals should be instructed that under such

circumstances (where the state supreme court answers fact

questions and sidesteps legal questions), the work of the court

of appeals is not done. The only method to cure this defect 1s

for the federal court of appeals to take the case back and answer

the state court question. Otherwise, the whole system will

crumble.

DATED this_/S ~~ dayof_ JDarnigne 2007.

_— — XY

LYNN P°7HEWARD

Attorney for Petitioner

(i) APPENDIX

1 Orders entered in conjunction with judgment to be reviewed:

A Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Mar. 21, 2005) (order certifying

state law question)

B Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

2006 UT 41, 144 P.3d 1079

C Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Aug. 4, 2006)

ii Other relevant orders:

D Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 03cv0099 (D. Utah, Mar. 4, 2004) (order granting

defendants’ motion to dismiss)

i111 Orders on rehearing:

E Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 20050299 (Utah, Sep. 15, 2006) (order denying

rehearing)

F Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc.,

No. 04-4049 (10th Cir., Oct. 18, 2006) (order denying

rehearing)

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. DEBRY AND ASSOCIATES, P.C., a Utah

corporation,

Plaintiff-Appellant,

V.

QWEST DEX, INC., a Colorado corporation; and DEX

MEDIA WEST, LLC, a Delaware limited liability

corporation,

Defendants-Appellees.

No. 04-4049

(D.C. No. 03cv0099)

- (D. Utah)

ORDER CERTIFYING STATE LAW QUESTION

Before HENRY. BALDOCK, and BRISCOE, Circuit Judges.

The United. States Court of Appeals for the Tenth

Circuit, on its own motion pursuant to 10th Cir. R. 27.1 and

Utah R. App. P. 41, certifies the following question to the Utah

Supreme Court:

Whether Defendants violated Utah Code Ann.

§ 13-1la-3(1)(b), (d), or (t)' when they

‘Section 13-1la-3 provides in relevant part:

(1) Deceptive trade practices occur when, in the course of his business,

vocation, or occupation:

(b) A person causes likelihood of confusion or

misunderstanding as to the source, sponsorship,

A-1 o

published in their 2003-2004 Ogden-area

telephone directory a table of numerical

prefixes associated with a "local calling area"

and advertisements by third parties that include

a market expansion line telephone number

without any physical business address; and if

so, whether Defendants are exempt from

liability under Utah Code Ann. § 13-1 1a-5(1).’

The certified question is dispositive of an issue of law in a

proceeding before the Tenth Circuit and no Utah law appears

to control the answer to the certified question. See Utah R.

App. P. 41l(c)(1)(B)-(C). The facts relevant to the

determination of the certified question are set forth below. Utah

R. App. P. 41(e)(2).

I.

Defendants Qwest Dex, Inc. and Dex Media West, LLC

(collectively "Dex") print telephone directories in Utah. Each

city in Utah has a series of numerical prefixes for telephone

listings in that city. Dex's telephone directories state "the

prefix(es) listed beside your community and those communities

listed below it, represent your local calling area." The

approval, or certification of goods or services.

(d) A person uses deceptive representations or

designations of geographic Origin in connection with

goods and services.

(t) A person engages in any other conduct which

similarly creates a likelihood of confusion or

misunderstanding.

*Section 13-1 la-5(1) provides the Utah Truth in Advertising Act

does not apply to "conduct incompliance with the orders or rules of, or a

statute admimis “ed by, a federal, state, or local governmental agency[.]"

A-2

directories then list all the prefixes associated with the local

calling area.

Dex's customers may purchase a market expansion line

("MEL") number from the company. A MEL number allows

members of the public in a particular region to dial a local

telephone number and connect with an out-of-region business

without incurring long distance charges. For example, a Salt

Lake City business may secure a MEL number with an Ogden

prefix, thereby permitting a person in Ogden to call the Salt

Lake City, business without incurring long distance charges.

Dex, through it yellow pages, allows businesses to advertise

their goods or services with their MEL number. Dex does not

require businesses to include a physical address in their

advertisements. Dex's MEL program ts in compliance with the

terms and conditions of an "Exchange and Network Services

Tariff on file with the Utah Public Service Commission.

Plaintiff Robert J. Debry and Associates, P.C. ("Debry")

opened law offices in Ogden and Provo. Apparently concerned

with Dex's MEL program, Debry hired a marketing research

firm to conduct a survey in the Ogden area. The survey

"show(ed] that 67% of Dex customers are tricked or misled

when they see a ‘Market Expansion Line’ telephone number in

their local Dex yellow page directory with no listed address,

because they believe that the business or profession actually has

a local Ogden office.” Debry provided the results of the survey

to Dex.

Debry thereafter sued Dex in the second district court,

Weber county, Utah. Debry alleged Dex's sale of

advertisements with a MEL number and without a

corresponding business address violated three subsections of

the Utah Truth in Advertising Act ("UTIAA"). See Utah Code

Ann. § 13-1 la-3(1)(b), (d), (t). Debry further alleged it

incurred damages as a result of Dex's MEL program. Dex

A-3

removed the case to the United States District Court for the

District of Utah. See 28 U.S.C. § 1441.

The federal district court dismissed Debry's complaint

for failure to state claim upon which relief could be granted

under the UTIAA. See Fed. R. Civ. P. 12(b)(6). The court first

found Debry's claim_under Utah Code Ann. § 13-1 1a-3(1)(b)

failed because Debry's complaint did not allege Dex's MEL

program caused a likelihood of confusion as to the "source” of

goods or services. The court interpreted "source" as referring

to a "product's manufacturer or a service's provider rather than

the geographic location in which the product or service

originates." The court next found Debry's claim under §

13-1 la-3(1)(d) failed because Dex did not make any deceptive

representations or designations of geographic origin in

connection with goods or services. Instead, the court reasoned

Dex did not make any representations or designations as to the

geographic origin of legal services because the Ogden

telephone directory only "convey[ed] to phone book users the

prefixes they may dial from an Ogden telephone without

incurring long distance charges." Finally, the court found

Debry's claim under § 13-1 1a-3(1)(t) failed because Debry did

not plead facts that, if true, would show Dex's MEL program

created a likelihood of confusion or misunderstanding. The

court, in light of its conclusion that Debry failed to state a claim

upon which relief could be granted, did not decide the question

whether Dex was exempt from liability under the UTIAA

because its conduct was in compliance with a tariff on file with

the Utah Public Service Commission. See Utah Code Ann. §

13-1 la-5(1).

If.

This proceeding involves important questions of Utah

law. Neither the Utah Supreme Court nor the Utah Court of

Appeals have decided a case arising under the UTIAA.

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Therefore, this court concludes certification of the above

question would further the interests of comity and federalism

by giving the Utah Supreme Court an opportunity to answer the

question in the first instance should it elect to do so under Utah

R. App. P. 41(e). The Clerk of this court shall transmit a copy

of this certification order to counsel for all parties. "The Clerk

shall also forward, under the Tenth Circuit's official seal, a

copy of this certification order and the briefs filed in this court

to the Utah Supreme Court. This appeal is ordered STAYED

pending resolution of the certified question.

Entered for the Court

s/ Bobby R. Baldock

Circuit Judge

“— $$$

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[Robert J. DeBry and Associates, P.C. v. Qwest Dex,

144 P.3d 1079

Utah,2006.

144 P.3d 1079, 557 Utah Adv. Rep. 35, 2006 UT 41]

IN THE SUPREME COURT OF THE STATE OF UTAH

ROBERT J. DOBBRY AND ASSOCIATES, P.C., a Utah

corporation, Plaintiff and Appellant,

V.

QWEST DEX, INC., a Colorado corporation; and Dex Media

West, LLC, a Delaware limited liability corporation,

Defendants and Appellees.

No. 20050299.

Filed July 28, 2006.

Rehearing Denied Sept. 15, 2006.

Federal Certification

Attorneys *1079 Lynn P. Heward, Salt Lake City, for

plaintiff.

Joseph J. Joyce, James D. Franckowiak, Salt Lake City,

Bobbee J. Musgrave, Paul J. Lopach, Denver, CO, for

defendant.

WILKINS, Associate Chief Justice:

{1 Defendants Qwest Dex, Inc., and Dex Media West

LLC (collectively, “Dex”) permit out-of-area businesses to

purchase local phone numbers and to advertise their available

goods and services in the Ogden area telephone directory. We

have been asked by the United States Court of Appeals for the

Tenth Circuit to determine whether Defendants violated Utah

Code section 13-1 1a-3(1)(b), (d), or (t) by publishing both a

-B-1

table of numerical prefixes associated with “a local calling

area” and advertisements by third parties that include a market

expansion line *1080 telephone number without any physical

business address; and if so, whether Defendants are exempt

from liability under Utah Code section 13-lla-5(1). We

conclude that Dex's actions did not violate Utah Code section

13-1 la-3(1). As a result, it is unnecessary for us to address

whether Dex is exempt under section 13-1 1a-5(1).

BACKGROUND

1. FACTUAL BACKGROUND

{2 “We accept as true the facts described by the [Tenth

Circuit] in the certification order.”

{3 Dex prints telephone directories, containing

residential and corporate phone numbers, throughout the State

of Utah. It also sells advertising in the “yellow page” section of

its directories.

4 Each city in Utah has a specific series of numerical

prefixes associated with the telephone listings in that city.

Toward the front of the phone book, Dex provides its customers

with a list of all prefixes affiliated with the local calling area

and states that “the prefix(es) listed beside your community and

those communities listed below it represent your local calling

area.” :

5 Dex permits businesses that do not have a “local

presence” in the particular geographic area to purchase a local

telephone number, known as a “Market Expansion Line”

(MEL), to be listed in the telephone directory.” An MEL allows

'In re Kunz, 2004 UT 71, § 2, 99 P.3d 793.

Some of these companies include the law firm of Siegfried &

Jensen, and a printer repair company known as Copy Doc, Inc.

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customers to dial local telephone numbers to connect with out-

of-area businesses without incurring long distance charges. The

MEL phone numbers contain the designated numerical prefixes

for telephone listings in the specific geographic area. For

example, a business in Salt Lake City may purchase an MEL

number with an Ogden prefix, and a person in Ogden may then

call the Salt Lake City business without incurring long distance

charges.

6 The Utah) Public Service Commission, the

government agency responsible for telephone communications

in the state, has a written agreement with Dex regarding the

MEL program. The agreement, known as the “Exchange and

Network Services Tariff ’ (the Tariff), requires Dex to provide

“one free listing in the White and Yellow Page directories

covering the exchange in which the MEL CO is located.”

“(H]owever, at the customer's request, the listing may be

omitted at no charge.” The language of the Tariff does not

expressly or impliedly require that the yellow page listing

contain an address. |

7 Plaintiff Robert J. DeBry and Associates (DeBry)

hired a marketing research firm to conduct a survey in the

Ogden area about the potential confusion resulting from Dex's

MEL program. The) survey “show[ed] that 67% of Dex

customers are tricked or misled when they see a ‘Market

Expansion Line’ telephone number in their local Dex yellow

page directory with no listed address, because they believe that

the business or profession actually has a local Ogden office.”

DeBry sent the results of the survey to Dex.

{8 DeBry contends that the advertisements containing

MEL numbers without addresses are deceptive and violate

B-3

section 13-1la-3(1)(b), (d), and (t) of the Utah Truth in

Advertising Act (UTIAA).’

If. PROCEDURAL BACKGROUND

49 DeBry sued Dex in a state district court for

violations of the UTIAA. Dex removed the case to the United

States District Court for the District of Utah. Pursuant to rule

12(b)(6) of the Federal Rules of Civil Procedure, the federal

district court dismissed DeBry's complaint for failure to state a

claim upon which relief can be granted. Because Dex's conduct

was in compliance with the Tariff on file, the federal district

court did not decide the question of whether Dex was exempt

from liability under the *1081 UTIAA.*

410 DeBry appealed to the Tenth Circuit of the United

States. The Tenth Circuit, recognizing that neither the Utah

Supreme Court nor the Utah Court of Appeals has yet decided

a case arising under the UTIAA, certified the above question

for our review.

ANALYSIS

411 The Tenth Circuit has asked us for guidance in this

specific area of Utah law. Accordingly, we are not presented

with a decision to affirm or reverse, and traditional standards of

review do not apply.” We have jurisdiction under Utah Code

Utah Code Ann. §§ 13-1 1a-3(1)(b), (d), (t) (2006).

*See id. §§ 13-1 1a-5(1).

See Miller v. United States, 2004 UT 96, §# 10, 104 P.3d 1202,

1204.

B-4

section 78-2-2(1) to answer a question of law certified by the

Tenth Circuit.®

412 This is a case of statutory interpretation. We have

not been asked to focus on the merits of the federal court's

12(b)(6) motion. Therefore, our analysis focuses strictly on the

statutory language and on applying Dex's actions to the terms

of the UTIAA found in Utah Code section 13-1 1a-3(1)(b), (d),

(t) (2006):

(1) Deceptive trade practices occur when, in the

course of his business, vocation or occupation:

(b) [a] person causes likelihood of confusion or

of misunderstanding as to the _ source,

sponsorship, approval, or certification of goods

or services.

(d) [a] person uses deceptive representations or

designations of geographic origin in connection

with goods or services.

(t) [a] person engages in any other conduct

which similarly creates a likelihood of

confusion or of misunderstanding. ’

We conclude that Dex's practice of permitting corporations to

advertise MEL phone numbers without listing addresses does

not violate the UTIAA. Inasmuch as we have found no

violation of the UTIAA, we need not reach the second question

®Utah Code section 78-2-2(1) states that ““‘the Supreme Court

has jurisdiction to answer questions of state law certified by a court of the

United States?”

"Utah Code Ann. §§ 13-1 1a-3(1)(b), (d), (t) (2006).

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as to whether Dex would be exempt from liability under Utah

Code section 13-1la-5.*

413 We first address the statutory language of Utah

Code section 13-11la-3(1)(b) to determine whether Dex has

caused a likelihood of confusion as to the source, sponsorship,

approval, or certification of goods or services. Next, we analyze

whether pursuant to section 13-1la-3(1)(d), Dex made

deceptive representations as to the geographic origin of the

goods or services. Third, we consider whether Dex engaged in

“any other conduct which similarly create[d] a likelihood of

confusion or of misunderstanding” as required by section 13-

1 La-3(1 )(t).

I. DEX DID NOT VIOLATE SECTION 13-1 1a-3(1)(b)

BECAUSE THE SOURCE, SPONSORSHIP, APPROVAL,

OR CERTIFICATION OF GOODS OR SERVICES IS NOT

MISLEADING OR CONFUSING

414 DeBry first argues that Dex's publication of MEL

numbers without addresses for out-of-area businesses violates

section 13-1 1a-3(1)(b) of the UTIAA. Under section 13-1 la-

3(1)(b), deceptive trade practices occur when a person causes

“likelihood of confusion or of misunderstanding as to the

source, sponsorship, approval, or certification of goods or

services.”’ DeBry contends that when businesses list MEL

numbers without *1082 addresses in advertisements, those

businesses mislead consumers and violate this UTIAA

provision. We disagree.

*The UTIAA exemption provision found in Utah Code section

13-1 la-5 states, “This chapter does not apply to:

(1) conduct in compliance with the orders or rulcs of, or a statute

administered by, a federal, state, or local governmental agency’{.]”

*Utah Code Ann. §§ 13-1 1a-3(1)(b) (2006).

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415 Although DeBry does not specify whether it claims

the source, sponsorship, approval, or certification of goods and

services is misleading, the implication based on the facts

presented is that DeBry challenges the publication of MEL

numbers without addresses as misleading as to the “source” of

the advertisement. Thus, we begin by looking at the common

definition of “source” as used in the statute. “Source” is

generally defined as “a point of origin” or “one that supplies

information.”'® In light of these definitions, we interpret the

“source” of goods or services advertised in a telephone

directory to ordinarily be the business that placed the

advertisement. This will commonly be the company that

financed the advertisement for the purpose of endorsing its own

goods or services. And this “source”-the name of the business-

is stated in the directory as part of the listing or advertisement.

416 For example, in this case, DeBry argues that one of

the businesses advertising with an MEL number but no address

is the law firm of Siegfried & Jensen. In such an example, the

“source” of the advertised goods or services is Siegfried &

Jensen because the advertisement most likely originated with

and was funded by Siegfried & Jensen for the purpose of

endorsing its legal services. Additionally, Siegfried & Jensen

probably supplied Dex with the information contained in the

advertisement.

417 Both the certification order and the record list

several other businesses that have purchased MEL numbers for

the same reason and have similarly advertised in the Ogden

yellow pages. Such advertisements are not misleading or

confusing as to the “source” of goods or services offered

because the name of the business and its products or services

are generally printed on the advertisement. Consequently, as

Webster's Third New International Dictionary 2177 (1986).

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publisher of those advertisements, Dex has not violated section

13-1 La-3(1)(b).

Il. DEX'S PUBLICATION OF TELEPHONE NUMBERS

DOES NOT CONSTITUTE A REPRESENTATION OF

GEOGRAPHIC ORIGIN OR LOCATION FOR WHICH

DEX IS LIABLE UNDER UTAH CODE

SECTION 13-1 1a-3(1)(d)

18 DeBry next alleges that Dex uses “deceptive

representations or designations of geographic origin in

connection with goods or services.”'' We conclude that Dex

makes no “representation or designation of geographic origin,”

much less a deceptive one. Contrary to DeBry's assertions, Dex

does not purport to list only those businesses with offices

physically located in the calling area; rather, Dex merely lists

the contact information for businesses offering products or

services to customers in the calling area, regardless of the

businesses’ geographic locations. For example, by listing the

telephone number for the law firm of Siegfried & Jensen, Dex

does not represent that the firm has an office in the calling area-

it only informs customers that the firm is willing to provide its

services to those located in the calling area. Absent a

representation as to geographic location, Dex could not have

violated Utah Code section 13-1 la-3(1)(d).

[11. DEX DID NOT ENGAGE IN ANY OTHER CONDUCT

THAT COULD SIMILARLY CONFUSE OR MISLEAD

UNDER SECTION 13-1 1a-3(1)(t)

19 Finally, DeBry contends that Dex violated the

UTIAA's “catch all” provision found in section 13-1 la-3(1)(t),

which prohibits a person from engaging “in any other conduct

which similarly creates a likelihood of confusion or of

"Utah Code Ann. §§ 13-1 1a-3(1)(d) (2006).

B-8

misunderstanding.”'* Broadly speaking, MEL listings may

result in some confusion or misunderstanding among

consumers--some may presume that businesses with a local

number have an office *1083 in the vicinity. Nonetheless, the

statute requires that any confusion or misunderstanding must be

of a magnitude similar to the related provisions.

4/20 In assessing whether conduct “similarly creates a

likelihood of confusion or of misunderstanding,” we note that

the statute generally addresses “false front” business operations

that attract customers by misrepresenting the nature, location,

source, or quality of their goods or services. DeBry contends

that MEL listings provide such a “false front” by permitting

out-of-area businesses to use local numbers. While perhaps

confusing to some, such a program does not invoke the type of

deceptive misrepresentation contemplated under the statute. As

we have noted, the Dex listings provide nothing more than a list

of businesses willing to provide services to the calling area.

That some consumers might presume more does not render the

listings misleading or confusing. DeBry has not alleged that

merely because the businesses are located outside the calling

area, the nature, location, source, or quality of their services

would be materially changed. As such, we cannot classify Dex's

use of MEL numbers without addresses as confusing or

misleading under section 13-1 la-3(1)(t).

CONCLUSION

421 For the above reasons, Dex has not acted in

violation of the Utah Truth in Advertising Act (UTIAA). Dex's

publications did not cause a likelihood of misunderstanding or

confusion as to the source, sponsorship, approval, or

certification of goods or services as required by Utah Code

section 13-11la-3(1)(b). Dex did not use deceptive

"Utah Code Ann. §§ 13-1 1a-3(1)(t) (2006) (emphasis added).

B-9

representations or designations of geographic origin in

connection with goods or services pursuant to section 13-1 la-

3(1)(d). And Dex did not engage in any other conduct similarly

creating a likelihood of confusion or misunderstanding pursuant

to section 13-1 la-3(1)(t). Consequently, we need not determine

whether Dex would be exempt under section 13-1 1a-5(1).

Chief Justice DURHAM, Justice DURRANT, Justice

PARRISH, and Justice NEHRING concur in Associate Chief

Justice WILKINS' opinion.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. DEBRY AND ASSOCIATES, P.C.,

a Utah corporation,

Plaintiff-Appellant,

v.

QWEST DEX, INC., a Colorado corporation; and

DEX MEDIA WEST, LLC, a Delaware

limited liability corporation,

Defendants-Appellees.

No. 04-4049

(D.C. No. 03cv0099)

(D. Utah)

ORDER AND JUDGMENT

Before HENRY. BALDOCK, and BRISCOE, Circuit Judges.

Filed August 4, 2006

Elisabeth A. Shumaker, Clerk of the Court

We certified to the Utah Supreme Court, as a dispositive

question of law in this matter, the following pursuant to 10th

Cir. R. 27.1 and Utah R. App. P. 41:

Whether Defendants violated Utah Code Ann.

§ 13-1 La-3(1)(b), (d), or (t) when they published

in their 2003-2004 Ogden-area_ telephone

” This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

C-1

directory a table of numencal prefixes

associated with a “local calling area" and

advertisements by third parties that include a

market expansion line telephone number

without any physical business address; and if

so, whether Defendants are exempt from

liability under Utah Code Ann. § 13-1 1a-S(1).

See Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., No

04-4049, Certification Order (10th Cir. March 21, 2005). The

Utah Supreme Court graciously accepted our certification and

held, under the facts as certified, that Defendant had not

violated Utah Code Ann. § 13-1 1a-3(1)(b), (d), or (t). See

Robert J. DeBry and Assocs. P.C. v. Qwest Dex, Inc., — P.3d

__, 2006 WL 2089138 (Utah 2006). Accordingly, the district

court’s judgment dismissing Plaintiff's complaint for failure to

state a cause of action is--

AFFIRMED.

Entered for the Court

s/

Bobby R. Baldock

United States Court Judge

IN THE UNITED STATES COURT

FOR THE DISTRICT OF UTAH NORTHERN DIVISION

ROBERT J. DeBRY AND ASSOCIATES, P.C., a Utah

Corporation, |

Plaintiff,

VS.

QWEST DEX, INC., a Colorado Corporation, and DEX

MEDIA WEST LLC, a Delaware Limited Liability Company,

Defendants.

Case No. 1:03CV0099

ORDER GRANTING

DEFENDANTS' MOTION TO DISMISS

Filed March 5, 2004

Before the court are Defendants Qwest Dex, Inc.'s and

Dex Media West LLC's (collectively "Dex") Motion to Dismiss

All Claims (#37-1), Plaintiff Robert J. DeBry and Associates,

P.C.'s ("DeBry") Motion for Partial Summary Judgment

(#44-1), and DeBry'’s Motion for Leave to File Surreply

Memorandum (#61-1). The court has carefully considered the

supporting and opposing memoranda filed in conjunction with

each motion. Because the court agrees with Dex that DeBry has

failed to state a claim upon which relief can be granted, the

court GRANTS Dex's motion. Accordingly, the court DENIES

DeBry’s motion for partial summary judgment as MOOT and

DENIES DeBry's motion to file a surreply memorandum.

I. BACKGROUND

This case stems from advertisements Dex published in

its 2003-2004 Ogden, Utah telephone directory. DeBry

D-1

contends Dex intentionally interfered with DeBry's potential

economic relations and violated the Utah Truth in Advertising

Act' (TIAA) by publishing yellow page ads that contained a

business's market expansion line (MEL) phone number but no

address. A MEL number allows customers to dial a local phone

number to connect with an out-of-area business without paying

long distance charges. For example, telephone calls from

Ogden, Utah, to Salt Lake City, Utah, are usually long-distance.

A Salt Lake City business, however, could secure a MEL

number with an Ogden prefix. Should an Ogden customer dial

the Salt Lake City business's Ogden MEL number, the call is

automatically routed to the Salt Lake City office, thereby

saving the Ogden customer long distance costs.

DeBry claims the ads in Dex's phone book aredeceptive

trade practices under the TIAA because the ads contain

Ogden-area prefixes even though the businesses are not located

in Ogden; as such, DeBry claims, Ogden consumers are likely

confused “as to the source, sponsorship, approval, or

certification of goods or services.” In addition, DeBry claims

the ads constitute intentional interference with DeBry's

potential economic relations. According to DeBry, the ads with

MEL numbers but no addresses led DeBry's potential clients to

hire out-of-Ogden attorneys rather than attorneys from DeBry's

now-closed Ogden office because the potential clients were

unable to discern the actual physical location of DeBry's

competitors.

'Utah Code Ann. §§ 13-11a-1 to -5 (2001).

*Utah Code Ann. § 13-11a-3(1)(b).

D-2

ll. ANALYSIS

A. Procedural Posture

Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a complaint may be dismissed for failure to state a

claim upon which relief can be granted "if it appears that the

plaintiff can prove no set of facts in support of the claims that

would entitle the plaintiff to relief.”’ A plaintiff has "the burden

of alleging sufficient facts on which a recognized legal claim

could be based."* A plaintiff need not describe every fact in

"specific detail," but “conclusory allegations without

supporting factual averments are insufficient to state a claim on

which relief can be based."" This court must assume “{a]l]

well-pleaded facts, as distinguished from conclusory

allegations," as true; "view all reasonable inferences in favor of

the plaintiff;" and liberally construe the pleadings.* The court

will examine Dex's motion under this framework.

A. DeBry's TIAA Claim

DeBry seeks relief under three subsections of Utah's

TIAA. First, under § 13-1 1a-3(1)(b), DeBry alleges Dex caused

a "likelihood of confusion or of misunderstanding as to the

source .. . of goods or services" by including Ogden MEL

‘Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d

1111, 1115 (10th Cir. 1991).

‘Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Id.

®Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002)

(quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984)).

D-3

excluding the business's address.’ Next, under

§ 13-1la-3(1)(d), DeBry alleges Dex's phone book ads are

deceptive trade practices because they make "deceptive

representations or designations of geographic origin in

connection with goods or services."* Finally, under § 13-1

la-3(1)(t), DeBry alleges Dex violated TIAA's catch-all

provision because publishing the ads with MEL numbers but

without addresses was other "conduct which . . . creates a

likelihood of confusion or of misunderstanding."”

DeBry's first claim under § 13-11 a-3(1)(b) fails because

of the language of § 13-lla-3(1)(d). The Supreme Court

recently stated “[i]t is ‘a cardinal principal of statutory

construction’ that ‘a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.""'® In this

case, subsection 3(1)(b) of the TIAA prohibits trade practices

that are likely to cause confusion or misunderstanding as to the

"source" of goods or services; subsection 3(1)(d) bans trade

practices that deceptively misrepresent "designations of

geographic origin in connection with goods or services.”"' If

subsection 3(1)(b)'s "source" is identical to 3(1)(d)'s

"geographic origin,” the latter subsection would add nothing to

the TIAA's overall statutory scheme. As aresult, this court will

construe the TIAA's subsection 3(1)(b)'s reference to "source"

"Utah Code Ann. § 13-1 1a-3(1)(b).

"Id. § 13-11a-3(1)(d).

"Id. § 13-1 1a-3(1)(0).

'°TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan

v. Walker, 533 U.S. 167, 174 (2001)).

"Id. § 13-1 1a-3(1)(d) (emphasis added).

D-4

as referring to a product's manufacturer or a service's provider

rather than the geographic location in which the product or

service originates. This interpretation gives full effect to

subsection 3(1)(d), wherein the Utah Legislature specifically

provided a remedy for geographically misdescriptive trade

practices.

Viewed in this light, DeBry has not stated a claim under

subsection 3(1)(b). DeBry's pleadings contain no factual

allegations that the MELs in Dex's phone book ads caused

potential Ogden clients to contact a firm other than DeBry

when the potential client actually intended to call DeBry.

Because DeBry does not claim the MEL ads caused confusion

about the provider of legal services, it fails to state a claim

under § 13-1 1a-3(1)(b).

DeBry also fails to state a claim under § 13-1 la-3(1)(d).

DeBry's claim that Dex "has used deceptive representations or

designations of geographic origin in connection with legal

services it advertised on behalf of some of DeBry's

competitors” stems from a table Dex printed in the front of its

2003-2004 Ogden, Utah directory.'* Under the title "Ogden &

Vicinity Local Calling Region," the table states "[t]he prefix(es)

listed beside your community and those communities listed

below it, represent your local calling area... . For Qwest

Customers, this is a complete list of your calling area.”'? The

table then lists all Ogden-area phone prefixes. DeBry claims the

MELs in the phone book ads are geographic misrepresentations

because a potential Ogden client could compare the MEL prefix

in a phone book ad against the table and thereby assume the

phone number was for an Ogden-based law firm.

'?Amended Complaint (#26-1) J 32.

"Id. 12.

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This claim seems quite dubious on its face. In any event,

DeBry's claim fails because the table does not state the

Ogden-area prefixes are assigned solely to Ogden-based

business. Dex's table states the "prefix(es) listed beside your

community and those communities listed below it, represent

your /ocal calling area... . For Qwest Customers, this 1s a

complete list of your ca/ling area.""* The table, then, conveys

to phone book users the prefixes they may dial from an Ogden

telephone without incurring long distance charges. Neither the

ads nor the table in Dex's phone book state that, by dialing an

Ogden-area prefix, customers will secure legal work that will

originate from an Ogden attorney. Instead, the ads simply

provide a local number Ogden-area residents may call when

seeking legal representation. Thus, the ads in Dex's phone book

are not "deceptive representations or designations of

geographic origin in connection with legal services.”'

Accordingly, DeBry has failed to state a claim under §

13-1 1a-3(1)(d).

Finally, DeBry fails to state a claim under

§ 13-1 1a-3(1)(t). This subsection prohibits "any other conduct

which similarly creates a likelihood of confusion or of

misunderstanding."'® DeBry has not pled facts that, if true,

would show the ads created "a likelihood of confusion or of

misunderstanding" in a manner other than that covered by

subsection 3(1)(d). As such, DeBry's amended complaint fails

to state a claim under § 13-1 1la-3(1)(t).

As alternative grounds for dismissal, Dex argues

DeBry's claims must fail because Dex's conduct is exempt

‘47d. (emphasis added).

Sid 931.

‘Utah Code Ann. § 13-11a-3(1)(t).

D-6

under the TIAA. Utah Code Arm. § 13-Illa-5(1) states the

TIAA “does not apply to conduct in compliance with the orders

or rules of, or a statute administered by, a federal, state, or local

government agency.""’ In this case, Dex argues the phone book

ads comply with a tariff governing MELs that Dex filed with

the Utah Public Service Commission (PSC) pursuant to Utah

Code Ann. § 54-3-3. Dex correctly states that "tarriffs have the

force of law."'* The tariff at issue states that upon purchasing

a MEL number, Dex will provide the purchaser with "one free

listing in the White and Yellow Page directories covering the

exchange in which the MEL CO is located; however, at the

customer's request, the listing may be omitted at no charge.”"”

Significantly, the tariff does not require that the ads displaying

the MEL number also display an address. Thus, Dex argues, it

is immune under TIAA because it complied with the "order or

rule" (the tariff) administered by the "state . . . government

agency" (PSC) when it printed the ads. This argument likely is

correct; however, in light of the court's decision regarding

DeBry's claims under the TIAA, it need not decide whether the

tariff indeed immunizes Dex from liability under the TIAA.

B. DeBry's Intentional Interference With Prospective

Economic Relations Claim

DeBry also alleges that Dex intentionally interfered

with DeBry's prospective economic relations by publishing

competitors’ ads that contained a MEL number but no address.

"Id. § 13-1 1a-5(1).

'’ Mountain States Tel. & Tel Co. v. Atkin, Wright & Miles,

Chartered, 681 P.2d 1258, 1263 (Utah 1984) (citing Shehi v.

Southwestern Bell Tel. Co., 382 F.2d 627 (10th Cir. 1967)).

"See Dex's Motion Ex. A.

D-7

Under Utah tort law, however, DeBry has failed to state a claim

upon which relief can be granted.

The Utah Supreme Court first recognized the

common-law tort of intentional interference with prospective

economic relations in Leigh Furniture & Carpet Co. v. Isom.”

Leigh Furniture held that plaintiffs alleging this tort "must

prove (1) that the defendant intentionally interfered with the

plaintiffs existing or potential economic relations, (2) for an

improper purpose or by improper means, (3) causing injury to

the plaintiff."*"

In Leigh Furniture, the Utah Supreme Court noted that

"[{d]riving away an individual's existing or potential customers

is the archetypical injury this cause of action was devised to

remedy."”* Thus, the first element requires a plaintiff to show

a defendant has "intentionally interfered with and caused a

termination of some of [the plaintiff's] relationships (actual or

potential)."*> This element was satisfied in Leigh Furniture

because the defendant "imposed heavy demands on [plaintiffs]

time and financial resources to the detriment of his ability to

attract and retain customers and conduct the other activities of

his business" by writing numerous letters of complaint,

demanding an inventory and financial audit during the busy

holiday season, threatening to cancel contracts, refusing to

satisfy contractual obligations, and preventing the

consummation of potentially profitable business alliances.”

675 P.2d 293 (1982).

211d. at 304.

21d at 306.

31d.

4 See id.

Leigh Furniture's second element is stated in the

alternative: a plaintiff must show the defendant intentionally

interfered with potential economic relations either "for an

improper purpose" or "by improper means." "Improper

purpose is established by a showing that the actor's

predominant purpose was to injure the plaintiff.”*° "Improper

means are present ‘where the means used to interfere with a

party's economic relations are contrary to law, such as

violations of statutes, regulations, or recognized common-law

rules.""’’ “Improper means include ‘violence, threats, or other

intimidation, deceit or misrepresentation, bribery, unfounded

litigation, defamation, or disparaging falsehood.""** Moreover,

{m]eans may also be improper or wrongful because they violate

an established standard of a trade or profession."””

Finally, Leigh Furniture's third element requires a

plaintiff to show that a defendant's intentional interference, by

improper means or an improper purpose, was causally related

to the plaintiff's losses.

Applying these rules to the present case, it becomes

clear that DeBry has not stated a claim for intentional

interference with prospective economic relations. First, DeBry

has not alleged the kind of facts necessary to support a finding

that Dex intentionally interfered with DeBry's potential

economic relations. Even assuming DeBry's allegations are

51d. at 304.

*©St. Benedict's Development Co. v. St. Benedict's Hospital, 811

P.2d 194, 201 (Utah 1991) (citing Leigh Furniture, 657 P.2d at 307)).

"Id. (citing Leigh Furniture, 657 P.2d at 308).

ad (7 A

Id. (internal quotation marks omitted).

D-9

true, there are no facts showing Dex has committed the

“archetypical injury" of "driving away" DeBry's potential or

current clients. Unlike the liable party in Leigh Furniture, Dex

has not imposed heavy demands on DeBry's time and financial

resources to the detriment of DeBry's ability to attract and

retain customers, refused to satisfy any contractual obligations,

or prevented DeBry from consummating any business alliance.

DeBry's complaint is simply void of any facts supporting the

allegation that Dex's intent in publishing the MEL ads was to

interfere with DeBry's ability to acquire potential Ogden

clients. Thus, DeBry fails to satisfy Leigh Furniture’'s first

element.

In addition, DeBry's complaint fails to satisfy Leigh

Furniture's second element. DeBry has conceded Dex did not

act for an improper purpose.” DeBry's ability to prove the

second element, therefore, hinges on whether Dex intentionally

interfered with DeBry's potential economic relations through

improper means. The court has determined that DeBry's

complaint does not allege facts that show Dex employed

"improper means" as explained in Leigh Furniture or its

progeny. Because DeBry's complaint does not recite facts that,

if accepted as true, would establish Dex violated the TIAA,

DeBry cannot allege Dex's improper means was a statutory

violation.*' Moreover, DeBry has not stated facts that

demonstrate Dex interfered with DeBry or DeBry's potential

clients in a violent, threatening, intimidating, or defamatory

manner.”

* Plaintiff's Memorandum in Opposition to Defendants’ Motion

to Dismiss (#43-1) at 6-7.

*' See St. Benedict 's Development Co., 811 P.2d at 201.

2 See id.

Because DeBry's complaint does not allege facts that

satisfy Leigh Furniture's first or second elements, it fails to

state a claim of intentional interference with prospective

economic relations for which this court may grant relief.

Accordingly, DeBry's second cause of action must be

dismissed.

Ill. CONCLUSION

DeBry's complaint is replete with conclusory statements

and legal assertions but void of facts that, if true, would entitle

DeBry to relief from this court, and the few well-pled facts in

DeBry's claim do not amount to a cognizable legal wrong.

Accordingly, the court GRANTS Dex's motion (437-1) and

dismisses DeBry's amended complaint with prejudice. The

court also DENIES DeBry's partial summary judgment motion

(#44-1) as moot and DENIES DeBry's motion for leave to file

a surreply memorandum (#61-1). The clerk's office is directed

to close the case.

SO ORDERED.

DATED this 4th day of March, 2004.

BY THE COURT:

s/ PAUL G. CASSELL

United States District Judge.

* D-11

IN THE UTAH SUPREME COURT.

Robert J. Debry and Associates, P.C., a Utah corporation,

Appellant and Petitioner,

V.

Qwest Dex, Inc., a Colorado Corporation; and Dex Media

West, LLC, a Delaware limited liability corporation,

Appellees and Respondents.

Case No. 20050299-SC

July 28, 2006.

Filed Utah Appellate Courts Sep 15, 2005

ORDER

This matter is before the court upon Appellants’ Petition

for Rehearing, filed on August 10, 2006.

IT IS HEREBY ORDERED that pursuant to Rule 35 of

the Utah Rules of Appellate Procedure the petition for

rehearing is denied.

For The Court:

September 15, 2006 s/ Christine M. Durham

Chief Justice

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. DEBRY AND ASSOCIATES, P.C.,

a Utah corporation,

Plaintiff-Appellant,

v.

QWEST DEX, INC., a Colorado corporation; and

DEX MEDIA WEST, LLC, a Delaware

Limited Liability Company,

Defendants-Appellees.

No. 04-4049

ORDER

Filed October 18, 2006

Before HENRY. BALDOCK, and BRISCOE, Circuit Judges.

Appellant’s petition for rehearing is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

by: s/ Patrick Fisher

Deputy Clerk