AT&T's Motion to Dismiss 'Ignores' Factual Allegations, Says Negligence Plaintiff

Pewaukee, Wisconsin, “repeatedly informed” AT&T of the “problems, difficulties and failures” it had using Simplifi Connect II routers on AT&T’s FirstNet network to communicate with its Supervisory Control and Data Acquisition (SCADA) system, said plaintiff Coppe Healthcare Solutions in its memorandum of law (docket 2:24-cv-00088) in opposition to AT&T’s motion to dismiss a negligence suit.

Coppe sued Simplifi and AT&T in December over the allegedly faulty Simplifi router when the SCADA alert system failed, causing a sewer overflow that led to the flooding of Coppe’s lab with sewage. AT&T removed the case from Circuit Court of Waukesha County to the U.S. District Court for Eastern Wisconsin in Milwaukee in January (see 2401230035).

While AT&T’s summary of Coppe’s complaint is “overall, accurate,” said the memorandum, “it ignores specific factual allegations” plaintiff has made against it and “ignores specific factual allegations” that “preclude” the court’s granting of the motion to dismiss, it said.

Pewaukee uses FirstNet, developed by AT&T for use by first responders, for SCADA system communication, the memorandum said. AT&T “specifically vetted and approved Simplifi’s Connect II Routers for use on its FirstNet network” and said the routers met its “highest standards for reliability, security, and performance,” it said.

Though Pewaukee city staff repeatedly reported problems and failures with the Connect II routers communicating with the SCADA system, AT&T “failed repeatedly to respond to the City of Pewaukee notifications that its SCADA system was unable to communicate with public works staff,” the memorandum said. The city warned AT&T on Jan. 23, 25 and 27, 2023, that it was “unable to communicate with the SCADA system”; AT&T didn’t respond to any of the communications, it said.

Pewaukee’s Gun Club Lift Station suffered a total failure on Jan. 30, causing 130,000 gallons of water to overflow, resulting in the flood that damaged Coppe’s laboratory, said the memorandum. The SCADA system's alarm notification software “demonstrated the SCADA system attempted to make alert notification calls…about the pump failure," but the phone line the SCADA system was using "was not providing a dial tone,” it said.

The city’s public works staff was unable to address the pump failure for 6.5 hours, leading to the flood, “due to Defendant’s First Net network and/or Simplifi’s Connect II Router’s failing to facilitate the SCADA system communications,” the memorandum said. SCADA system communications failures were “specifically known to and ignored by” AT&T, it said.

The defendant’s motion to dismiss alleges Coppe’s complaint fails to state a facially plausible negligence claim under standards articulated in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, said the memorandum. Coppe countered that a claim for relief is facially plausible “when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged," citing Twombly. Federal Rule of Civil Procedure (8)(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief,” it said. “Specific facts are not necessary,” it said, provided the statement gives the defendant “fair notice of what the ... claim is and the grounds upon which it rests,” it said.

AT&T asserted Coppe failed to provide non-conclusionary factual allegations supporting its claims, but the defendant “ignores specific factual allegations” that demonstrate a plausible negligence case against it, the memorandum said. AT&T’s assertion that the complaint fails to allege a breach of AT&T’s duty of care, the second element in a negligence class action, is that Coppe acknowledges the city’s SCADA system could communicate properly “at times” with Pewaukee’s public works staff after the city started using FirstNet and Simplifi routers.

It's accurate to say that Pewaukee’s SCADA system used FirstNet and Connect II routers “to communicate, at times, with public works staff,” but that ignores “the repeated failures of the network and the Connect II Routers”; there were six failures in January 2023 alone, the memorandum said. The city notified AT&T of each failure, which occurred “in rapid succession, mere days” before the Jan. 30 flood, and AT&T didn’t respond to any of the failure notifications, it said.

AT&T asserted that because Coppe doesn’t allege the flood was caused by the total failure of all three pumps at the station, its causation allegations are legally “insufficient,” said the memorandum. Coppe “specifically alleges that the public works staff was unable to respond because they did not receive communications from the SCADA system, and that this delay caused the extent of the flood, which released 130,000 gallons of water over six-and-a half hours,” said the memorandum. The complaint is clear that the SCADA system failure, “caused by Defendant’s negligence,” caused the flood “and the extent of the flood,” it said.

AT&T asserted the suit must be dismissed because Coppe failed to plead facts showing it had a duty of care, but that argument is based on a “fundamental misunderstanding of Wisconsin law,” said the memorandum. Every person “has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person failed to exercise ordinary care,” it said, citing Alvarado v. Sersch.

Due to AT&T’s failure to respond to the city and ensure that its FirstNet network and the routers it approved for use on the network were functioning properly, the public works staff “was not alerted to a system failure, resulting in a substantial flood,” said the filing. “This was a foreseeable outcome,” and Coppe "suffered injury and damages as a result,” it said. The court should deny AT&T’s motion to dismiss for failure to state a claim, it said.