Cellular phones topics - Re: Going to small claims court tomorrow against Sprint; any suggestions?

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Re: Going to small claims court tomorrow against Sprint; any suggestions?

Zen Cohen

2007-08-21, 10:33 pm

Just wanna say good luck to you. Sprint has a good network but its customer
service is a nightmare to deal with. BTW, I'd go ahead and claim lost wages
if you follow whatever statute or case law says you need to prove it up. But
if you can't prove your case on this issue, I wouldn't raise it because it
will dilute the merits of your othr more viable issues. Also, has Sprint
claimed that the state's consumer protection laws are preempted by federal
laws/regs?

"Jonathan Kamens" <jik@kamens.brookline.ma.us> wrote in message
news:faetfg$7d7$1@ji
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> I'm going to small claims court tomorrow to sue Sprint Nextel
> for failing to refund the cost of a cell phone I returned to
> them within the 30-day guarantee period (indeed, I returned
> it the day I received it, without even opening it).
>
> I've prepared the following summary of my case. I intend to
> give a copy to the clerk magistrate and to the defendant (if
> they show up) and to use it as my outline when presenting my
> case if I am asked to do so (the clerk magistrate may not
> depend a full presentation if Sprint doesn't show up). Any
> suggestions would be appreciated.
>
> I've elided certain details, such as my salary :-), from the
> summary.
>
> Trial Court of Massachusetts
> Small Claims Session
> X District Court
> Docket Number X SC X
> Trial Date: August 22, 2007
>
> Summary of Plaintiff's Case
>
> Plaintiff ordered cellular phone and service through Sprint Web site
> January
> 30, 2007.
>
> Plaintiff decided after ordering phone, but before it arrived, that Sprint
> phone and service were no longer desired.
>
> Defendant has "30-Day Risk-Free Guarantee" promising full refund for
> service
> canceled within 30 days of initiation. (evidence: copy of policy from
> defendant's Web site)
>
> Plaintiff called Sprint to ask how to cancel order, and was told to refuse
> delivery of package from UPS, after which package would be returned to
> Sprint
> and full refund would be issued.
>
> Plaintiff refused package February 5. Package was returned to Sprint
> February
> 7. (evidence: tracking information from UPS Web site)
>
> Over six months later, defendant still has not refunded cost of phone,
> $262.49,
> to defendant.
>
> Defendant sent plaintiff letter asking for plaintiff to call defendant
> about
> service cancelation. Purpose of this call was only to give defendant
> opportunity to try to convince plaintiff not to cancel service
> (defendant's
> agent referred to this letter as "retention letter" in subsequent phone
> conversation). Plaintiff sent back letter with notation demanding that
> account
> be canceled and refund issued without wasting any more of plaintiff's
> time.
>
> Defendant sent plaintiff four bills. Plaintiff sent back first two bills
> with
> notation demanding that account be closed and refund issued. Plaintiff
> refused
> delivery of third and fourth bills without opening them.
>
> Plaintiff spent hours on phone with various Sprint representatives,
> attempting
> to get refund. Refund was promised by several different Sprint employees
> but
> never delivered.
>
> Plaintiff disputed credit card charge with card issuer on March 15. Card
> issuer rejected dispute after contacting defendant, because defendant
> refused
> to confirm that phone had been returned. (evidence: copies of credit card
> statements with temporary credit and reversal highlighted)
>
> Plaintiff sent defendant's CEO complaint office letter on May 1, detailing
> all
> problems encountered by plaintiff and demanding full refund. (evidence:
> copy of
> letter)
>
> Plaintiff received voicemail message from defendant on May 14. Caller
> identified himself as Tyrone, referenced case number X and telephone
> number
> 866-398-4606, and falsely claimed that plaintiff's credit card had never
> been
> charged any money by defendant. (evidence: scratch paper on which this
> message
> was written down)
>
> Defendant failed to follow its own published refund policies; failed to
> keep
> multiple promises to issue refund; forced plaintiff to spend hours on
> phone
> unsuccessfully attempting to obtain refund; failed to initiate proper
> investigation to confirm return of phone when contacted by credit card
> issuer;
> and failed to initiate proper investigation and issue refund in response
> to
> plaintiff's letter to CEO. Together, these failures are sufficiently
> egregious
> to constitute violation of MGL Chapter 93A. Plaintiff therefore demands
> damages as follows:
>
> 262.49 cost of phone
> 1.17 postage for letters and bills from plaintiff to defendant
> XXX.XX lost wages to appear in court (*)
> --------
> sub. XXX.XX
> XXX.XX trebled damages under MGL 93A
> --------
> sub. X,XXX.XX
> XX.XX 12% statutory interest (**)
> --------
> sub. X,XXX.XX
> 40.00 filing fee
> --------
> TOTAL X,XXX.XX
>
> (*) Plaintiff earns $X annual salary and must use paid or unpaid vacation
> hours
> to cover absence while appearing in court. Annual salary is equivalent to
> $X
> per hour, or $X for estimated two hours necessary to appear in court.
>
> (**) Statutory interest is 12% per annum, calculated from date of breach,
> as
> per MGL Chapter 231 Section 6C. Date of tort is February 7, 2007, when
> phone
> was returned to defendant and defendant should have issued refund but
> didn't.
> 196 days elapsed between date of tort and trial date. $X,XXX.XX x 196 /
> 365.25
> x 0.12 = $XX.XX.

Jonathan Kamens

2007-08-21, 10:33 pm

"Zen Cohen" <aturny@hotmail.com> writes:
>Just wanna say good luck to you.

Thank you.

>Sprint has a good network but its customer
>service is a nightmare to deal with.

Yes.

>BTW, I'd go ahead and claim lost wages
>if you follow whatever statute or case law says you need to prove it up. But
>if you can't prove your case on this issue, I wouldn't raise it because it
>will dilute the merits of your othr more viable issues.

I think the advice given here not to try to claim lost wages
for the court appearance is good, and I'm going to follow it.
The little research I did on the topic confirmed that lost
wages resulting from appearing in court are generally not
recoverable.

>Also, has Sprint
>claimed that the state's consumer protection laws are preempted by federal
>laws/regs?

Sprint hasn't claimed anything. They haven't contacted me
since I filed suit. They would be fools to make a claim
anything like the one you postulate above; there's no legal
basis for such a claim.

Zen Cohen

2007-08-21, 10:33 pm

"Jonathan Kamens" <jik@kamens.brookline.ma.us> wrote in message
news:fafnpe$eem$1@ji
k2.kamens.brookline.ma.us...
> "Zen Cohen" <aturny@hotmail.com> writes:

.....

>
> I think the advice given here not to try to claim lost wages
> for the court appearance is good, and I'm going to follow it.
> The little research I did on the topic confirmed that lost
> wages resulting from appearing in court are generally not
> recoverable.

One thing that might demonstrate/establish your credibility with the court
is to let it know that you are abandoning that claim because it appears that
the law doesn't support it. Judges usually appreciate it when litigants are
forthright with them. The downside is that your opponent could try arguing
you raised a frivolous issue. In any case, conceding a non-material issue is
a gambit that often works if it's done right.

>
> Sprint hasn't claimed anything. They haven't contacted me
> since I filed suit. They would be fools to make a claim
> anything like the one you postulate above; there's no legal
> basis for such a claim.

I have no idea if federal laws have any application here, but I know that
some consumer-protection statutes are preempted by federal law for common
carriers like fedex. (I know because one of my first cases as a lawyer was
to sue fedex and it was a nightmare learning the applicable federal law.)
Was curious to know if there was any similar sort of scheme protecting cell
companies. They likely would have claimed this as a defense in their answer,
though. They did answer, right?

Jonathan Kamens

2007-08-21, 10:33 pm

"Zen Cohen" <aturny@hotmail.com> writes:
>They did answer, right?

No. You do understand that this is a small-claims case,
right?

The plaintiff who initiates a small-claims case rarely
provides a filing that is detailed enough for the defendant to
answer before trial. The plaintiff fills out a very simple
form, and the section of the form in which the cause for
action is documented is hardly large enough to provide any
detail.

The defendant in a small-claims case is notified about the
trial in advance and is provided with contact information for
the plaintiff. The defendant can contact the plaintiff if
s/he wishes to attempt to negotiate a settlement before the
trial. As I said before, Sprint did not contact me.

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