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Huh v. Suez Water Westchester Inc.

United States District Court, S.D. New York

May 5, 2017

YOUNGJA HUH and MIN HUH, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SUEZ WATER WESTCHESTER INC., SUEZ WATER RESOURCES INC., and JOHN DOES 1-20, Defendants.

          OPINION & ORDER

          Paul A. Engelmayer, United States District Judge

         The claims by plaintiffs Youngja Huh and Min Huh (the "Huhs") in this putative class action flow from a single water-use bill they were issued in May 2014 by defendants Suez Water Westchester, Inc. and Suez Water Resources, Inc. (together, "Suez Water"). The Huhs claim that the $548.83 bill, covering a three-month period, was based on an incorrect tabulation of their water use. The Huhs complained to Suez Water's customer service department, but, they allege, were told that Suez Water does not provide billing adjustments as a matter of company policy. The Huhs then filed a complaint with Suez Water's regulator, the New York Public Service Commission ("NYPSC"), which provides for abatements of water bills in certain cases where the customer's water meter is found inaccurate. But, before the Huhs' NYPSC complaint could be resolved, they abandoned it in favor of this lawsuit, in which they bring contract and tort claims and a claim under New York General Business Law § 349 for deceptive business practices. The Huhs invoke federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). They seek actual and punitive damages, disgorgement of profits, and attorneys' fees.

         Suez Water now moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), Suez Water argues that the Huhs lack standing, thus depriving the Court of subject matter jurisdiction. And under Rule 12(b)(6), Suez Water argues that the Huhs' claims are barred by the doctrine of primary jurisdiction; that their claims are barred by the filed rate doctrine; and that the operative complaint otherwise fails to state claims for which relief may be granted.

         For the following reasons, the Court dismisses this action based on the doctrine of primary jurisdiction, without prejudice to the Huhs' ability to pursue such claims in court after first exhausting their remedies before the NYPSC.

         I. Background[1]

         A. Factual Background[2]

         1. The Huhs' February-May 2014 Water Bill

         Suez Water supplies water to the Huhs' house in Ardsley, New York. SAC ¶ 47. In May 2014, Suez Water sent a water bill to the Huhs indicating that the Huhs had used 7, 600 cubic feet of water during the three-month period between February 14 and May 14, 2014, yielding, at the applicable rates, a bill of $548.83. Id. ¶ 48. The Huhs dispute that they used 7, 600 cubic feet of water during that period. They allege that during the same period in 2013, their water use, according to their water bill, had been only roughly 1, 500 cubic feet of water. Id. ¶¶ 2, 49-50. The Huhs further claim that “during much of the billing period” at issue in 2014, they were away from their home and that no person lived there. Id. ¶ 51. They also allege that a plumber determined that the service plumbing and fixtures belonging to the Huhs were not leaking water during the billing period. Id. ¶ 52. In sum, the Huhs claim their water bill for the 2014 period “was inaccurate as to how much water plaintiffs had actually used during the billing period.” Id. ¶ 53.

         After receiving the bill, on June 3, 2014, the Huhs claim they contacted Suez Water's customer service department, which the Huhs claim Suez Water holds out to “redress[] consumer complaints and billing issues, ” id. ¶ 1, to ask “why their bill was so unusually high.” Id. ¶ 54. On that occasion and several others, the Huhs spoke with representatives of that department. Each told the Huhs that, as a matter of company policy, Suez Water does not grant adjustments or abatements for water bills. Id. ¶¶ 55-58. The Huhs allege that Suez Water representatives also told them that if they did not pay the bill in full, then they would face penalties. Id. ¶¶ 59- 60. Based on Suez's Water's statements, the Huhs allege, they paid their water bill. Id.

         2. The Huhs' Challenge Before the NYPSC

         Suez Water, as a public water utility operating in New York, is regulated by the NYPSC. As such, at all relevant times, Suez Water operated pursuant to an operative tariff approved by the NYPSC.[3] See Feingold Decl., Exs. D-E. The tariff set out the rates that Suez Water was permitted to charge per unit of water use during the events at issue, as the tariff currently in place also does. See id., Ex. E. The Huhs do not dispute that the rates on which their water bill was based were in accord with the operative tariff.

         The operative tariff also set out the following policy on abatements and refunds:

22. Abatements and Refunds
(a) There shall be no abatement of the minimum water rates in whole or in part, by reason of the extended absence of the Customer, unless service has been discontinued at his request, and no abatement shall be made for leaks or for water wasted by improper ...

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