Benjamin Winig v. Cingular Wireless, LLC

MEMORANDUM

Plaintiff Benjamin D. Winig appeals from a district court order granting sum mary judgment in favor of Defendants Cingular Wireless, LLC; AT & T Mobility, LLC; and AT & T Mobility Corporation. We review the district court’s grant of summary judgment de novo and will reverse if we determine that there is a genuine issue of material fact for trial. See W. States Med. Ctr. v. Shalala, 238 F.3d 1090 , 1093 (9th Cir.2001).

Winig argues primarily that Defendants breached their contract with him by failing to treat his calls to cheek his voicemail as “mobile-to-mobile” calls. In relevant part, the contract provides that mobile-to-mobile calls are “[cjalls to and from other local Cingular customers” and that mobile-to-mobile minutes “may be used when directly dialing or receiving calls from any other Cingular phone number.” It further provides that voicemail calls constitute “airtime” or “Chargeable Time.”

The district court correctly granted summary judgment to Defendants on Winig’s breach of contract claim. It is clear that voicemail calls constitute “airtime” and may, as a general matter, be billed to subscribers. It is further clear that voice-mail calls do not fall…