28741.noh.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

MICROSERV COMPUTER TECHNOLOGIES, INC., an Idaho corporation,

Petitioner

vs.

QWEST CORPORATION,

Respondent.
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CASE NO. USW-T-99-20

AMENDED
NOTICE OF HEARING

ORDER NO.  28741

On March 21, 2001, the Commission issued Order No. 28682 establishing a discovery and hearing schedule in this matter. Under the schedule, Qwest Corporation was to file its pre-filed testimony on May 16, 2001. A hearing in this matter was scheduled for May 23, 2001. In a Motion filed May 15, 2001, Qwest requested permission to extend the time for it to submit its pre-filed direct testimony “and for a corresponding extension of the date of the Evidentiary Hearing.” Motion at 1. On May 16, 2001, Microserv Computer Technologies filed an Objection to Qwest’s Motion. On May 17, 2001, Qwest filed a Reply. Neither party requested an oral argument on the Motion.
After reviewing the Motion, Objection and Reply, we grant Qwest’s Motion and amend the schedule in this matter as set out below.
BACKGROUND
This case originated in August 1999 when Microserv Computer Technologies (hereinafter Microserv) filed a complaint against Qwest. In its Answer to the complaint, Qwest asserted that Microserv obtained its telephone service through “subterfuge” and a fraudulent conveyance. Qwest alleged that Microserv purchased most of the assets from and continued doing business at the location of the similarly named company, Microserv Telecomputing, LLC (hereinafter LLC).
On April 20, 2001, the Commission convened a hearing on Qwest’s Motion to Compel Microserv to answer discovery. On April 25, 2001, the Commission issued Order No. 28721 denying Qwest’s Motion to Compel but granting Qwest’s alternative plea that the Commission issue subpoenas to LLC, Mr. Jenkins and Mr. Hemsley. These latter two individuals are current directors of Microserv and are also the sole members of LLC. See Order No. 28721 at 2.
THE MOTION
In its Motion, Qwest maintains that LLC has not produced or made available documents requested in the subpoena duces tecum issued by the Commission. Qwest Motion at ¶ 3. Without these documents, Qwest maintains that it cannot prepare its direct testimony. Id. at ¶ 4. Consequently, Qwest request that the Commission extend the deadline for filing Qwest’s testimony “until approximately one week after [Qwest] received the discovery to which it is entitled….” Id. at ¶ 6. Given the plea to extend the schedule, Qwest also requests that the Commission postpone the evidentiary hearing scheduled for May 23, 2001.
MICROSERV’S OBJECTION
On May 16, 2001, Microserv filed an Objection to Qwest’s Motion. In its Objection, Microserv asserts that Qwest “should not be given additional time to prepare its direct testimony.” Objection at ¶ 1. Microserv asserts that Qwest’s Motion should be denied because Qwest did not timely seek discovery of LLC. Although the Commission’s subpoenas were issued on April 25, 2001, Microserv asserts they were not served upon LLC officers until May 2, 2001. “The depositions of the LLC officers were not conducted until May 7 and May 8, 2001. Qwest could have acted more quickly on the Commission’s subpoenas in order to have more time to prepare its direct testimony.” Id. at ¶ 3.
Microserv claims that granting Qwest’s Motion will be prejudicial to Microserv “since it will give Qwest a disproportionate amount of time to prepare its direct testimony.” Id. at ¶ 5. Microserv claims that providing Qwest more time to prepare its case is “highly prejudicial, an extreme measure, and without precedent.” Id.
Finally, Microserv claims that Qwest has the burden of establishing subterfuge in order to substantiate the actions they have already taken in this case in transferring the telephone bill of LLC to Microserv. “The requested Motion for Continuance after the filing of [Microserv’s] direct testimony has the effect of shifting the burden of proof, which again is prejudice which the Commission cannot remedy.” Id. at ¶ 7. Consequently, Microserv urges the Commission to deny Qwest’s Motion.
QWEST’S REPLY
In its Reply, Qwest asserts that it has been diligent in attempting to conduct relevant discovery in this matter. Qwest maintains that the “Commission has ruled [Qwest] is entitled [to obtain discovery] and has no other objective in filing its Motion for an Extension other than to avoid the prejudice it would suffer if such Motion is denied.” Reply at 2. Finally, Qwest maintains that “the relatively short extension” of the schedule should not “in any way prejudice Microserve.” Id.
MOTION STANDARDS
The Commission’s Rule 256 allows a party to seek procedural relief on less than 14-days’ notice. IDAPA 31.01.01.256. The Commission may act upon a procedural motion if the facts support a request to act on a shorter notice and all the parties have received actual notice of the motion. Rule 256.02 and .03, IDAPA 31.01.01.256.02 and .03. In a motion asking for expedited procedural relief, the Commission may act on such motion without waiting for a response of other parties. IDAPA 31.01.01.256.03. The Commission exercises its discretion in ruling on Motions.
COMMISSION FINDINGS
Based upon our review of the pleadings, we find that it is appropriate to grant Qwest’s Motion. Although we are concerned about the length of time that this case has taken to process, we believe a short extension in the schedule is warranted. We further find that contrary to its assertion, Microserv will not be prejudiced by the delay. In particular, in initiating this complaint, Microserv sought to prohibit Qwest from terminating service. Granting the Motion does not change the status quo or the positions of the parties.
Following our ruling on Qwest’s Motion, we directed Commission’s Counsel to initiate a conference call with the parties to establish a new schedule. Pursuant to that conference call, the parties recommend the schedule below. Based upon the agreement of the parties, we adopt the schedule set out below.
June 8, 2001

June 12, 2001

June 20, 2001 Deadline for Qwest’s prefiled direct testimony

Microserv advise Qwest Counsel and Commission Counsel whether it desires to offer rebuttal evidence, cross-examine witnesses or provide oral argument at the evidentiary hearing.

Evidentiary hearing in Boise, Idaho at 10:30 a.m. The parties are reminded that all pleadings and prefiled testimony be served via facsimile no later than the close of business on the deadlines outlined above. Prefiled direct testimony will also be served on the parties by overnight delivery.
O R D E R
IT IS THEREFORE ORDERED that Qwest’s Motion to extend the schedule in this matter is granted. The schedule initially set out in Order No. 28682 is amended as set out above.
IT IS FURTHER ORDERED that the parties comply with the schedule in this Order above.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of May 2001.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

bls/O:uswt9920_dh4
This complaint was originally filed against U S WEST Communications. After the complaint was filed, U S WEST’s parent company merged with Qwest Communications International. Qwest is the surviving entity. Accordingly, the Commission has changed the case caption reflected above.

AMENDED NOTICE OF HEARING
ORDER NO. 28741 1

Office of the Secretary
Service Date
May 30, 2001