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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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
ee 2a 2 2 43 rene grr nmr arrears iV
(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.

A-4

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.

B-2

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).

B-7

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.

D-5

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2036%3A1. Public record. Not legal advice.