05172001.doc

DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
JEAN JEWELL
RON LAW
RANDY LOBB
LYNN ANDERSON
JOE CUSICK
BEV BARKER
GENE FADNESS
NANCY HARMAN
WORKING FILE
FROM:
DATE:
MAY 17, 2001 RE: QWEST’S MOTION TO EXTEND THE SCHEDULE FOR FILING ITS DIRECT TESTIMONY AND THE HEARING IN THE MICROSERV V. QWEST COMPLAINT, CASE NO. USW-T-99-20

In Order No. 28682 issued March 21, 2001, the Commission established a discovery and hearing schedule regarding Microserv’s complaint against Qwest. Under the schedule, Qwest was to file its prefile testimony on May 16, 2001. A hearing in the matter is scheduled for Wednesday, May 23, 2001. In a Motion filed May 15, 2001, Qwest requested permission to extend the time for it to submit its prefiled direct testimony “and for a corresponding extension of the date of the Evidentiary Hearing currently….” The Motion was supported by an affidavit of counsel.
Given the existing schedule, the Motion asks for an expedited ruling. On May 16, 2001, Microserv filed an Objection to the Motion. Neither party requested an oral argument.
BACKGROUND
This case originated in August 1999 when Microserv Computer Technologies (hereinafter Microserv) filed a complaint against Qwest (fka U S WEST). In its Answer to the complaint, Qwest asserted that Microserv obtained its telephone service through “subterfuge” and 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’s request that the Commission extend the deadline for Qwest filing its testimony “until approximately one week after [Qwest] received the discovery to which it is entitled….” Id. at ¶ 6. Given this request to extend the schedule, Qwest also requests that the Commission postpone the evidentiary hearing scheduled for May 23, 2001. According to Ms. Denison’s affidavit, Microserv has not stipulated to the extension of time. Affidavit at ¶¶ 20-21.
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.
MOTION STANDARDS
The Commission’s Rule 256 does allow 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.
Given the voluminous nature of Qwest’s Motion and Microserv’s Objection, these documents are not included with this decision memorandum. I have asked the Commission Staff to ensure that the Commissioners have the Motion and Objection in their decision meeting file for Monday, May 21, 2001.
COMMISSION DECISION
What does the Commission decide regarding Qwest’s Motion for an Extension to file its direct testimony and Microserv’s Objection?
What does the Commission decide about the hearing scheduled for May 23, 2001?
Does the Commission wish to take any other action?

vld/M:USW-T-99-20_dh2

DECISION MEMORANDUM 2