JANET C. HALL, District Judge.
The defendants, NAPs, Inc., Global NAPs New Hampshire, Inc., Global NAPs Networks, Inc., Global NAPs Realty, Inc., and Ferrous Miner Holding, Ltd. (collectively "Global") bring this Motion to Dismiss the non-stayed claims asserted by plaintiff Southern New England Telephone Co. ("SNET") for lack of subject matter jurisdiction. See Def.'s Mem. in Supp. of Mot. to Dis. ("Def.'s Mem.") at 1 (Doc. No. 504). Global's Motion is based on a theory that SNET's claims arise from a disagreement over the parties' interconnection agreement ("ICA") and that such disagreements must be heard in the first instance by the state utility commission which initially approved the ICA. Id.
Section 252(e)(6) of the Telecommunications Act states, in relevant part, that "Mil any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section." 47 U.S.C. § 252. Global argues that this language should be read
The court finds that it need not address the question of whether SNET's claims arise under the ICA, or whether the Third Circuit's analysis of the administrative exhaustion requirement under section 252 is correct, because even assuming Global's position on those issues arguendo, the court finds that Global's argument asserts an affirmative defense, rather than a jurisdictional issue, and that that defense has been forfeited.
In a series of recent cases, the Second Circuit has expounded on the difference between a jurisdictional bar and a mandatory "claim-processing" rule, which is an affirmative defense subject to equitable considerations such as waiver, estoppel or futility. See Paese v. Hartford Life and Accident Ins. Co., 449 F.3d 435, 443 (2d Cir.2006); see also Zhong v. United States Dept. of Justice, 480 F.3d 104 (2d Cir. 2007); Richardson v. Goord, 347 F.3d 431 (2d Cir.2003). In Richardson, the Second Circuit adopted the Seventh Circuit's reasoning that the failure to exhaust administrative remedies is not jurisdictional unless it is "essential to the existence of the claim, or to ripeness, and therefore to the presence of an Article III case or controversy." Richardson, 347 F.3d at 434 (quoting Perez v. Wis. Dep't Corr., 182 F.3d 532, 535-6 (7th Cir.1999)). In finding that failure to exhaust administrative remedies under the Prison Litigation Reform Act (PRLA) was not a jurisdictional predicate, the court noted that the statute lacked the "sweeping and direct language that would indicate a jurisdictional bar rather than a mere codification of administrative exhaustion requirements." Id.
The court applied similar reasoning in determining that exhaustion of administrative remedies under the Employee Retirement Income Security Act (ERISA) was an affirmative defense rather than a jurisdictional bar. Paese, 449 F.3d at 445. There the court found that, despite the "firmly established federal policy favoring exhaustion of administrative remedies in ERISA cases," exhaustion had "little to do with the presence of an Article III case or
Assuming, without deciding, that the Third Circuit's holding that administrative exhaustion is required under the Telecommunications Act is correct, the court finds that the exhaustion requirement is an affirmative defense rather than a jurisdictional bar. First, as in the statutes at issue in the Second Circuit cases discussed above, there is no language in the Telecommunications Act that expressly proscribes a district court from hearing a dispute concerning an ICA. See 47 U.S.C. § 252. In fact, the Third Circuit found that Congress had not provided "any guidance as to the proper interpretation and enforcement procedure" for the resolution of disputes concerning ICAs. Core, 493 F.3d at 341. Second, there is no reason that such an exhaustion requirement is "essential to the existence of the claim, or to ripeness, and therefore to the presence of an Article III case or controversy". Paese, 449 F.3d at 445. Global's ability to litigate this case for three years without raising this issue is a testament to the fact that a lack of administrative exhaustion has not impacted the existence of an Article III case or controversy.
The Third Circuit's own ruling also supports the conclusion that the exhaustion requirement is an affirmative defense. While the Third Circuit did not explicitly define this rule as a jurisdictional or claim processing rule, the court upheld the District Court's decision to dismiss the claim without prejudice.
Core Communications, v. Verizon Pa., 423 F.Supp.2d 493, 500 (E.D.Pa.2006).
This court's finding that any exhaustion requirement implied in section 252 is not jurisdictional is further supported by the Supreme Court's interpretation of the jurisdictional nature of section 252(e)(6) in Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 641-2, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). In Verizon, the Court faced the question of whether a District Court had jurisdiction to review a state commission's order concerning the "interpretation and enforcement" of an ICA. Id. While the
Having concluded that the administrative exhaustion requirement identified by the Third Circuit, if it exists, is an affirmative defense, the court finds that this defense was forfeited by Global. See Patterson v. Balsamico, 440 F.3d 104, 112 (2d Cir.2006)(distinguishing between the term "waiver" which is "best reserved for a litigant's intentional relinquishment of a known right" and "forfeiture" which is "the failure to make the timely assertion of a right"). In Patterson, the Second Circuit found that the plaintiff had forfeited his right to assert an affirmative defense where he had forgone "extensive opportunities" to litigate it. Id.
Similarly, the Global defendants have forfeited their right to assert this affirmative defense because they have forgone extensive opportunities to litigate it. Nowhere in their Answers did the Global defendants assert that Section 252 deprived this court of jurisdiction over SNET's claims because they must be heard by the state commission in the first instance. See Def'ts' Answers (Doe. Nos.55, 244, 439, 441, 449, 450). Nor has Global raised this argument once during three years of litigating this case, including in the summary judgment phase, despite the fact that almost all of the cases cited in its Motion were decided before this case was filed. See e.g. Pl.'s Mem at 9-12. Therefore, to the extent that exhaustion of administrative remedies is required in cases under the Telecommunications Act, it is an affirmative defense and Global has forfeited that defense.
For the foregoing reasons, Global's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 504) is DENIED.