ML20084K415
| ML20084K415 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 05/07/1984 |
| From: | Guttman D LAFAYETTE, LA, SPIEGEL & MCDIARMID |
| To: | Lambe W Office of Nuclear Reactor Regulation |
| References | |
| NUDOCS 8405140021 | |
| Download: ML20084K415 (66) | |
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,i l LAW OFFICES aEOReESa=ott PC- SPIEGEL & MCDIARMID JNN MICHAEL AMAGNA RomSRT C. MtD ARMID CYNTHIA S. BOGORAD 2000 VIRGINIA AVSNUE, N W' SANDRA JSTREh.EL OARY J NEWELL
,50SER7 A. JABLON WASHING TON. O C. 2003 F MARC R. POIRER JAMES N HORWOOD trLaW m att m JOSEPH L. V AN E ATON ALANJROTH STEPHEN C. NICHOLS TSLRCOMER 1708 393 3974 P9tANCES E. FRANCIS PATMICIA E. STACM
'JANEL & DAVCOON P. DANIEL DMUNER THOMAS N. MCHUGH. JR. i SCOTT H STRAUSS DAMEL J 007TMAN , , NANCY E. WEOSRS PETER M. MATT DEN PINMELSTEIN DAVID R. STRAU5 DONALD WE10HTMAN B0808E S. WL AIR THOMAS C. TR AUGER .. May 7, 1984 William Lambe :
Site Analysis Branch i
Office of Nuclear Regulation ,
Nuclear Regulatory Commission Washington, D.C. 20555 ;
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Dear Mr. Lambe:
As you requested, I enclose further pleadings in responso to the Gulf States complaint referenced in our transmittal of March 26, 1984.
! Very truly yours, D.gA Daniel Guttman Enclosure .
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I c .. .o UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA GULF STATES UTILITIES COMPANY, : CIV. ACTION FILE NO.84-132 Plaintiff, t ,
- v. SECTION "B" THE CITY OF LAFAYETTE, ,
LOUISIANA, et al.
Defendants. :
ANSWER AND COUNTERCLAIM For answer to each numbered paragraph of the complaint, Stauffer Chemical Company states as follows:
- 1. Admits the allegations of this paragraph, except that it lacks knm4' ledge or information sufficient to 4
form a belief as to the state of plaintiff's incorporation.
- 2. Admits the allegations of subparagraph (c),
except alleges that its principal place of busiiess is .
Westport, Connecticut. Stauffer admits that it is engaged in interstate commerce and lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
- 3. Admits the jurisdictional and venue allega-tions.of this paragraph insofar as they relate to Stauffer, and lacks knowledge or information sufficient to form a belief as to the truth of th,e remaining allegations of this paragraph.
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- 4. No response to this paragraph is required of Stauffer.
- 5. Admits that venue as to Stauffer is appro-priate and lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.
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- 6. States that it lacks knowledge or information sufficient to form a belief as to the truth of the allega-tions of this paragraph.
- 7. Admits the allestations of this paragraph ex-cept that it lacks knowledge or information sufficient to form a belief as to the truth of the allegations concerning approvals and concerning the Public Utility Commission of Texas.
- 8. Admits that Gulf States is a party to various interconnection agreements with other electric utility systems in or adjacent'to its service area and that such agreements are subject in some respects to the jurisdiction
, of FERC, but lacks knowledge or information sufficient to form a bolia# as to the truth of the remaining allegations of this paragraph.
- 9. Admits the allegations of the first two sentences of this paragraph and states that it lacks knowl-edge or information sufficient to form a belief as to the truth of the allegations of the third sentence of this paragraph.
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- 10. States that it lacks knowledge or information
. sufficient to form a belief as to the truth of the allega-tions of this paragraph, except admits the allegations of the last sentence of this paragraph. I
- 11. - Admits that Stauffer-demand has ranged from )
50~to 85 MWs of power at its Iberville plant, and states
.that.it lacks knowledge or information sufficient to form a belief as'to the truth of the remaining allegations of this paragraph.
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- 12. Admits the allegations of this paragraph, ex-capt that it lacks knowledge or information sufficient to -[
form a belief as to the truth of the allegations concerning !
the locations of Lafayette's sales.
- 13. States that it lacks knowledge or information I i sufficient to form a belief as to the truth of the allega- f tions of this paragraph, except that it admits the allega- !
tions of the first sentence of this paragraph.
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- 14. States that it lacks knowledge or information i sufficient to form a belief as to the truth of the allega- l tions of this paragraph.
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- 15. States that it lacks knowledge or information ;
-sufficient to form a belief as to the truth of the allega- I tions of this paragraph, except that it admits the allega-tions of the second sentence of this paragraph. .
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- 16. States that it lacks knowledge or information [
sufficient to form a belief *as to the truth of the allega-tions of this paragraph. i c._______________________________________________________________.__________________
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- 17. Denies the allegations of this paragraph and i i
alleges and avers that, while its chlorine plant is com- I i
petitive with those of other producers, it has informed I
-representatives of Gulf States that its plant will not be able to remain competitive if Stauffer is required to pay ,
Gulf States the high rates for electricity that Gulf States I has indicated it will charge Stauffer after the term of-the present contract between Gulf States and Stauffer has expired [
and that it has also informed representatives of Gulf States that in order to keep its chlorine plant operating, Stauffer !
will be required to buy electric power from another less {
expensive source, or close down its plant. i l
- 18. Admits the allegations of this paragraph ex- '
capt avers that the term of the Lafayette-Plaquemine-Stauffer contract is for five years and eight months, that Stauffer i
has the right to terminate said contract on 13 % nths' .
notice only for certain specified reasons, and that sale of .
power under said agreement is not conditioned on use by Gulf [
States of its agreements with Plaquemine and Lafayette.
- 19. Denies the allegations of this paragraph and respectfully refers the Court to the agreements alleged for !
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'a correct interpretation thereof. ,
- 20. Admits that Plaquemine has proposed that Gulf j States lease or sell its substation located at the Stauffer [
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plant, which substation is on the east side of the Mississippi l River approximately 7 miles from Plaquemine, to Plaquemine, i
and denies the remaining allegations of this paragraph. i t
m.____. ____________'____.___.._______.___.____._.__._______
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- 21. Avers that this paragraph is argumentative and does not require a responsive answer, but if such answer is required, denies the allegations of this paragraph, except admits that the total maximum load under the proposal made to Gulf States would be in excess of 30 MW.
- 22. Avers that this paragraph is argumentative and does not require a responsive answer, but if such answer is required, denies the allegations of this paragraph.
- 23. Denies the allegations of this paragraph except that it lacks knowledge sufficient to form a belief as to the truth of the allegations as to Gulf States' reasons for, and internal consideration thereof, refusing to trans-mit power from Lafayette to Plaquemine for use by Stauffer.
- 24. Admits that Stauffer believes and contends that a refusal by Gulf States to transmit electric power to Stauffer, which power Stauffer can purchase at competitivo rates in the manner pr6 posed, would be a violation by Gulf States of, inter alia, 15 U.S.C. S 2, and further admits that Gulf States herein contends that such refusal would not subject it to antitrust liability.
- 25. Admits that an actual controversy exists between the parties, denies that the agreement among Stauffer, Plaquemine and Lafayette requires antitrust litigation, and otherwise lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.
- 26. Admits that Count One of the complaint is what it purports to be.
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- 27. Admits that Stauffer contends, inter alia, that Gulf States has monopoly market power over the trans-mission of electric power over high voltage transmission and distribution lines in the relevant geographic market, and that a refusal by Gulf States to permit access for the pro-posed use to its transmission and distribution facilities would be a violation of, intor alia, Section 2 of the Sherman Act.
- 28. Denies the allegations of this paragraph.
- 29. States that it lacks knowledge or information sufficient to form '. belief as to the truth of the allega-tions of this paragraph.
- 30. States that it lacks knowledge or information sufficient to form a belief as to the truth of the allega-tions of this paragraph.
- 31. States that it lacks knowledge Nr information sufficient to form a belief as to the truth of the allega-tions of this paragraph except that Stauffer denies that competition to the extent required by the Sherman Act would adversely affect the public or the utility industry and ;
i denies that any state law or policy prohibits the proposed '
transaction.
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- 32. The first two sentences of this paragraph state legal conclusions as to the content of Louisiana law, l and do not require responsive answer. If such answer is re- '
quired, Stauffer states that it lack knowledgu or informa-tion sufficient to form a belief as to the truth of these l
l allegations. Stauffer denies that the transaction proposed to Gulf States would violato any state regulatory policy or law, and further denion that it would have the procedontial and other impacts that are attempted to be alleged in this paragraph.
- 33. Denies the allegations of this paragraph.
- 34. Admits the first two sentonces of this para-graph except that it lacks knowledge or information sufficient to form a belief a'. to the truth of the allegation concerning t'he basis of regulation. The remaining allegations of this paragraph are speculative and argumentative and do not require a responsive answer but, if one is required, Stauffer donios the remaining allegations of this paragraph.
- 35. States that it lacks knowledge or information suffi: lent to form a belief as to the truth of the allega-tions of the first sentence of this paragraph and denies that Gulf States would lose revenue as a consequence of the transaction that has been proposed to it.
- 36. Denies that any of the speculative conso-quences alleged in this paragraph would result from the transaction that has been proposed to Gulf States by do-fendants.
- 37. Denios that any of the speculativo conso-quences alleged in this paragraph would result from the transaction that has been proposed to Gulf Statos by do-fendants.
- 38. Danies that it'would be financially or other-wise feasible, to construct a transmission line between
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Plaquemine and Stauffer's plant and denios the remaining allegations of this paragraph except admits that Plaquemino is more than 6 miles from Stauffer's plant.
- 39. Denies that the proposed transaction would impose upon Gulf States a common carrier duty, and further denies that the proposed transaction would be inconsistent with any of the policies or provisions of the Federal Power Act.
- 40. Danies that the proposed transaction would be in any way inconsistent with the Public Utility Regulatory Policies Act.
- 41. Denies the allegations of this paragraph.
- 42. Danies the allegations of this paragraph and avers that the proposed transaction would result in a more efficient utilization of Gulf States facilitios.
- 43. D1nies the allegations of this haragraph.
- 44. Admits that this Court may properly adjudi-cate the rights and obligations of the parties to this action, denies that Gulf States' rejection of the proposed transaction would be a lawful exercise of Gulf States' monopoly market power in the generation and distribution of electricity, or that it would be roasonablo, not anticom-petitive, or in conformity with law and public policy, and otherwise denies the allogations of this paragraph.
- 45. Admits that Count II of the Complaint is what it purports to be.
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- 46. Realleges and restates the matters contained in paragraphs 6 through 44.
- 47. Denies the allegations of this paragraph and respectfully refers the Court to the state statute alleged
! for a correct interpretation of the provisions thereof.
- 48. states that it lacks knowledge or information suf ficient to form a belief as to the truth of the allega- )
tions of this paragraph, except that it denies that there L !
are any prohibitions in the state statute referred to that dould prevent the proposed transaction.
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- 49. Denies the allegations of this paragraph.
50-66. The allegations of these paragraphs do not require responsive answers by stauffer. .
WHEMFOM, Stauffer prays for a declaration that an exercise by Gulf states of its monopoly market power, or a
its attempt to monopolise, in the circumstances of this case to deny to stauffer acc'ess to electricity at competitive rates would be a violation of federal antitrust law, not immunised by any state statute, and further prays for an award of its costs, including reasonable attorneys fees.
COUNTERCLAIM
- 1. Counterciaim defendant Gulf states Utilities Company in the plaintiff in this action. ounterciaim plaintiff stauffer Chemical Company is one of the defendants in this action.
- 2. Jurisdiction of this counterclaim is based on Sections 1 and 2 of the Sherman Act (15 U.S.C. SS 1, 2),
Sections 4 and 16 of the Clayton Act (15 U.S.C. 55 15, 26),
and 28 U.S.C. $$ 1311, 1337, 2201, 2202.
- 3. Gulf States has monopoly market power over the market for generation of electrical power and a complete monopoly of facilities for transmission of electrical power in the rolovant geographic area. l
- 4. Stauf fer has contracted with the cition of Lafayotto and Plaquemine to purchase electrical power com-mencing deptember 1, 1984, which power is substantially loss expensive than the power to be offered for sale by Gulf l States. Implementation of the contract requires that Gulf States provide wheeling service to transmit the power from Lafayecto, and the parties to the contract propose fully a
to compensate Gulf States for all costs involved in providing such wheeling service.' Oulf States' wrongful refusal to provide the wheeling service requested provents Stauffer from purchasing less expensive power to be whooled from Lafayette to Plaquemine and, as a consequence, stauffer will suffer substantial economic lossos, including forced closure of its caustic chlorino plant at St. Gabriel, Louisiana.
- 5. A refusal by culf States to provide wheeling services as requested by Stauf fer and by the cities of Lafayette and Plaquemino (1) would constitute an unroanon-able and anticompetitivo exerciso by culf States of its i
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complete monopoly of transmission facilitios in the relevant geographic market, (ii) would constitute an unlawful mono-polization. or attempt to monopolize, the rolovant gonoration market by unreasonably denying access to Gulf States' mono-poly tran6 mission facilities, and (iii) would unlawfully condition Stauffer's access to Gulf States' monopely trans-mission facilities to purchases of electrio power generated or scid only by cult states, and thus would constitute an unreasonable restraint of trade, and an unlawful monopoliza-tion, or attempt to monopolize.
WHEREFCRE, Stauffer prays the Court for judgment in its favor and against Gulf States, declaring that, in the circumstances of this case, a refusal by Gulf States to pro- ,
1 vide the requested wheeling service would violate Sections 1 and 2 of the Sherman Act and enjoining Gulf States from so a
refusing. Stauffer further prays for recovery of its costs, including reasonable atkorneys fees.
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i UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA 5 GULF STATES UTILITIES COMPANY :
CIVIL ACTION FILE NUMBER Plaintiff -
VERSUS. , : SECTION "B" THE CITY OF LAFAYETTE, LOUISIANA, :
THE CITY OF PLAQUEMINE, LOUISIANA, STAUFFER CHEMICAL COMPANY, AND : ,
THE LOUISIANA ELECTRIC POWER t AUTHORITY (LOUISIANA ENERGY AND :
POWER AUTHORITY)
Defendants :
l NOTICE.0F MOTION TO DISMISS COMPLAINT TO: TAYLOR, PORTER, BROOKS & PHILLIPS +
ORGAIN, BELL & TUCKER Attn: Tom F. Phillips, Attn: -
Benny H. Hughes {
Fredrick R. Tulley and CIEarles K. Kebodeaux i
and James L. Ellis 470 New Orleans Street l
P.O. Drawer 2471 Beaumont, TX. 77701 Baton Rouge, LA. 70821-2472, s
WALD, HARKRADER E.ROSS Attn: William W,'Ross BRAND & LECKIE ,
1200 Nineteenth Street, N.W. Attn: - Mr. Wallace Brand Washington, D.C. ,20036 1901 L. Street NW, '
Suite 480
. Washington, D.C. 20036 !
COVINGTON &' BURLING V00RHIES & LABBE' Attn: Mr.yJohn Schafer~ O 1201 Pennsylvania Avenue,1N . Attn: Mr. Gerald Gaudet Washitikron, D.C 20036 ' P.O. Box 3527 x-
' S. , -
Lafayette, LA. 70502
- \ I PLEASE TAKE NOTICE that, upon the Conplaint
.s herein, the .
, unders,igned,'will move thic Court, at the U.S, Courthouse, 707 Florida !
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Street, City of Baton Rouge, Louisiana on the 6th day of April, 1984 at 10 : 00 o' clock a.m. or as soon thereafter as Counsel can be heard for an Order dismissing the Complaint berein on the grounds that the same fails to show the existence of an actual controversy between GULF-STATES UTILITIES COMPANY and LOUISIANA ENERGY AND POWER AUTHO the nature required by Article III of the United States Constitution and $2201 of the Judicial Code, Title 28.
MOUTON, ROY, CARMOUCHE, BIVINS, JUDICE & HENKE 200 W. Vermilion Post Office Drawer Z Lafayette, Louisiana 70502 (318) 233-7430-s By: _
y ( Ronald J.Wdige Attorneys for LOUISIANA ENERGY AND POWER AUTHORITY CERTIFICATE I HEREBY certify that a copy of the above and foregoing Notice has been foIwarded to all known counsel of record by placing same in the United States Mail, postage prepaid and properly addressed.
- 7 Lafayette, Louisiana, this day of Februsy, 1984.
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RONALD J.vJUDICE
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA GULF STATES UTILITIES COMPANY : CIVIL ACTION FILE NUMBER 84-132 Plaintiff :
VERSUS : SECTION "B" THE CITY OF LAFAYETTE, LOUISIANA, : I THE CITY OF PLAQUEMINE, LOUISIANA, STAUFFER CHEMICAL COMPANY, AND :
THE LOUISIANA ELECTRIC POWER AUTHORITY (LOUISIANA ENERGY AND : ,
POWER AUTHORITY) ;
Defendants .
NOTICE QF MOTION TO DISMISS COMPLAINT TO: TAYLOR, PORTER, BROOKS & PHILLIPS ORGAIN, BELL & TUCKER Attn: Tom F. Phillips, _ Attn: . Benny H. Hughes Fredrick R. Tulley *'
and Charles K. Kebodeaux and James L. Ellis 470 New Orleans Street P.O. Drawer 2471 -
Beaumont, TX. 77701 Baton Rouge, LA. 70821-2472 ~.
WALD, HARKRADER & ROSS BRAND & LECKIE Attn: William W. Ross 1200 Nineteenth Street, N.W.
. Attn: Mr. Wallace Brand 1901 L. Street NW, Washington, D.C. 20036 Suite 480 Washington, D.C. -20036 COVINGTON & BURLING V00RHIES & LABBE' Attn: Mr. John Schafer 1201 Pennsylvania Avenue, NW Attn: Mr. Gerald Gaudet ,
P.O. Box 3527 ;
Washington, D.C 20036 Lafayette, LA. 70502 PLEASE TAKE NOTICE that, upon the Complaint herein, the undersigned will move this Court, at ' the U.S. Courthouse, 707 Florida
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Street, City of Baton Rouge, Louisiana on the day of ,
1984 at o' clock a.m. or as soon thereafter as Counsel can be heard for an Order dismissing the Complaint herein on the grounds thatI the same fails to show the existence of an actual controversy between!
GULF STATES UTILITIES COMPANY and LOUISIANA ENERGY A of the nature required by Article III of the United Statee Constitution and 52201 of the Judicial Code, Title 28.
MOUTON, ROY, CARMOUCHE, BIVINS, JUDICE & HENKE 200 W. Vermilion Post Office Drawer Z Lafayette, Louisiana 70502 (318) 233-7430 .
By: S' '
.,, Ronald J. Jbdice Attorneys for LOUISIANA ENERGY AND POWER AUTHORITY a" .
CERTIFICATE I HEREBY certify that a copy of the above and foregoing Notice has been forwarded to all known counsel of record by placing same in the United States Mail, postage prepaid and properly addressed.
Lafayette, Louisiana, this 2 7d ay d of February,1984.
RONAL9 d.UJDICE 4~
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UNITED STATES DISTRICT COURT ,
MIDDLE DISTRICT OF LOUISIANA ,
GULF STATES UTILITIES COMPANY : CIVIL ACTION FILE NUMBER ';4-132 Plaintiff :
VERSUS : SECTION "B" r
THE CITY OF LAFAYETTE, LOUISIANA, :
THE CITY OF PLAQUEMINE, LOUISIANA, STAUFFER CHEMICAL COMPANY, AND :
THE LOUISIANA ELECTRIC POWER AUTHORITY (LOUISIANA ENERGY AND :
POWER AUTHORITY)
Defendants :
MOTION TO DISMISS 1.
Defendant, LOUISIANA ENERGY AND POWER AUTHORITY (erroneously:
referred to in the Cochlaint as LOUISIANA ELECTRIC POWER AUTHORITY) l moves the Court to dismiss the claim alleged in Count 2 of the Complaint because the Complaint fails 7 o show clie existence of an l actual controversy between-GULF STATES UTILITIES COMPANY and LOUISIANA ENERGY AND POWER AUTHORITY of the nature required by Article III of the United States Constitution and $2201 of the Judicial Code, Title' l 28.-
MOUTON, ROY, CARMOUCHE, BIVINS, JUDICE & HENKE 200 W. Vermilion l Post Office Drawer Z l Lafayette, Louisiana 70502 !
(318) 233-7430 t
By. , ,= '_ Y-Rona1d r UttdTt*e i Attorneys for LOUISIANA ENERGY AND POWER AUTHORITY i
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I CERTIFICATE I HEREBY certify that a copy of the above and foregoing Motion tc 4
Dismiss has been forwarded to all known counsel of record by placing same in the United States Mail, postage prepaid and properly addressed.
Lafayette, Louisiana, this A 7Nday of February, 1984.
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RONALY r JUDICE g -
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA i GULF STATES UTILITIES COMPANY : CIVIL ACTION FILE NUMBER 84-132 Plaintiff :
VERSUS
- SECTION "B" i
THE CITY OF LAFAYETTE, LOUISIANA, :
THE CITY OF PLAQUEMINE, LOUISIANA, STAUFFER CHEMICAL COMPANY, AND :
POWER AUTHORITY)
- Defendants :
r WRITTEN STATEMENT OF REASONS IN SUPPORT OF MOTION TO DISMISS ;
FILED ON BEHALF OF LOUISIANA ENERGY AND POWER AUTHORITY Plaintiff, GULF STATES UTILITIES COMPANY (hereafter - GSU) has filed a four count Complaint against four defendants, namely: THE CITY OF LAFAYETTE, LOUISIANA: THE CITY OF PLAQUEMINE, '
LOUISIANA:
STAUFFER CHEMICAL COMPANY: and THE LOUISIANA ENERGY AND POWER AUTHORITY (hereafter -
LAFAYETTE, PLAOUEMINE, STAUFFER and LEPA, respectively).
LEPA is named as a party Defendant in Count Two of the Complaint.
t It is not named as a party Defendant in Count One, Count Three or in f Count Four, t
The underlying factual allegations relating to Counts One and Two i i
are completely disconnected from those pertaining to Counts Three and Four. In Counts Three and Four, LAFAYETTE is the sole Defendant. {
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Although LEPA is made a party Defendant solely with respect toi Count Two, the underlying facts with respect to both Counts One and!
Two are completely interrelated, and hence, in considering LEPA's!
L Motion to Dismiss, a discussion of both Counts One and Two is in; order.
t The controversy among the parties is particularly described by j!
GSU in Paragraphs 17 through 25 of the Complaint. In essence,!
t STAUFFER is alleged to have advised GSU that it no longer wishes to' -
purchase its electric requirements from GSU, and instead, that it hasI contracted with PLAQUEMINE to provide for the sale and delivery of bulk electric power to STAUFFER at its plant site for seven years j 1 beginning September 1, 1984 The Complaint alleges that under a Cor. tract between PLAQUEMINE and LAF^YETTE, LAFAYETTE shall sell to (
- PLAQUEMINE the power and energy which PLAQUEMINE has contracted to sell to STAUFFER, and that LAFAYETTE and/or PLAQUEMINE have demanded the GSU " wheel" or deliver the power. to the S.TAUFFER site underL
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existing agreements between PLAQUEMINE and GSU and/or LAFAYETTE and l GSU providing for the use of GSU's electric transmission facilitiec.
On this background, GSU brings Count One praying for Judgment in !
Count One in its favor and against Defendants, PLAQUEMINE, LAFAYETTE '
t and STAUFFER, "... declaring that a refusal by Gulf Sta'tes to provide -
the requested wheeling service to the Stauffer delivery point would[
not be violative of the Federal antitrust laws".
Noteworthy, in the quite extensive and detailed allegations f leading to and including Count One of the Complaint, is the fact that l
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no claim is made by GSU that LEPA has any interest in thG LAFAYETTE-PLAQUEMINE contract or that LEPA has any interest in thc; PLAQUEMINE-STAUFFER contract. Noteworthy also, is the fact that ns claim has been made by GSU that LEPA has directly or indirectly requested of GSU that it wheel power to the STAUFFER delivery point pursuant to or in aid of the requests of LAFAYETTE, PLAQUEMINE and/or STAUFFER.
There is indeed to additional claim by GSU that LEPA has had any contact whatsoever with GSU on the whole subject matter of wheeling power to the STAUFFER delivery point or that LEPA has in any way
" threatened" GSU with antitrust liability or litigation because of any-failure on GSU's part to wheel power to the STAUFFER delivery point in response to the request of LAFAYETTE, PLAQUEMINE, or STAUFFER. Quite correctly, LEPA is not made a party Defendant to Count One.
To put this case in proper perspective before moving into a discussion of Count Two, this Court should delete the reversal of a.- -
roles which has taken place through GSU's use the of Federal Declaratory Judgment Statute.
By reversing the roles of plaintiff and defendants and putting them in their otherwise " natural" positions, it can be noted that this law suit would normally have been brought by PLAQUEMINE, LAFAYETTE and STAUFFER against GSU for damages sustained by them and/or for injunctive relief, and based upon the alleged anticompetitive conduct of GSU under the scenario described in Count One.
Continuing with the reversal of roles, we would note that GSU, as a party defendant vis-a-vis LAFAYETTE, PLAQUEMINE and STAUFFER, would
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have a right to claim " defenses" or " exceptions" to what might, otherwise be held to be anticompetitive action, on its part in violation of the Federal antitrust laws (refucal to wheel power perj request, etc.).
Uithout commenting on its validity or whether it properly applies:
to the present set of facts, one " defense" which GSU might claim in!
response to an action brought against it by LAFAYETTE, PLAQUEMINE andI
. STAUFFER might be the " state action immunity" enunciated in Parker.v.
Brown, 317 US 341 (1943) and its progeny.
i In Count Two, GSU, in fact, raises the " state action immunity"i defense to what would be the main action demands of LAFAYETTE,!
PLAQUEMINE and STAUFFER absent the role reversal effect of the request for declaratory judgment. Stated otherwise, GSU is saying that if GSU' loses on Count One tq LAFAYETTE, PLAQUEMINE and STAUFFER, and LAFAYETTE, PLAQUEMINE , and STAUFFER would otherwise be entitled to i damages and/or injunctive relief beca.use of GSU's anticompetitive actions, that GSU nonetheless escapes Sherman and Clayton Act liability under the " state action immunity." Hence, argues GSU, LAFAYETTE, PLAQUEMINE and STAUFFER obtain no damages or injunctive relief on their " main demand" to compel " wheeling" in this case.
If, in fact, declaratory relief is available to GSU under Count One of the Complaint, then in all probability, the adjudication of the
" state action immunity" defense brought forward in Count Two would be appropriate as to those parties included in the Count.One controversy. '
However, adjudication of the " state action immunity" defense in '
an action between GSU on the one hand and LAFAYETTE, PLAQUMINE and
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i Assuming for the purposes of argument that LEPA, under some!
hypothetical circumstance, should have a cause of action fordamages{
and/or injunctive relief against GSU for GSU's violation of the!
i Sherman and Clayton Acts, then the appropriate time and place for the!
adjudication of any alleged " state action immunity" defense to such a!
violation would be in the forum and a,t the time that such action is!
brought by LEPA against GSU, and not as a collateral issue in an antitrust action brought by LAFAYETTE, PLAQUEMINE and STAUFFER against GSU.
[t GSU has not claimed that thereisanyactualcaseorcontroversyf existing between itself and LEPA in Count One. That being the case, the lack of actual case , or. controversy flows through into Count Two,t alleging the " state action immunity" defense to Count One violations. t The jurisdiction of this Court is , limited by. Article III of the:
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United States Constitution and by 28 U.S.C.A. 52201 to cases of actual!!
controversy between parties. !
f At $7493 of West's Federal Practice Manual, Revised Secondl Edition, Volume 6A, Page 266, the limitations to jurisdiction imposed !
under Article III as to matters which do not constitute a case or l controversy are reviewed: I "A good statement of the meaning of the word
' controversy' is contained in Aetna Life Company v. Haworth, '
i (300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000 (1937), reh. denied 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed.
889.1 in which the court, after reviewing the authorities, i summarized the matter as follows: !
i e
t
( (
'A " controversy" in this sense must be one that is appropriate ,for judicial determination....A justiciable controversy is thus distinguished from a aifference or dispute of a hypothetical or abstract characters from one >
that is academic or moot....The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests....It must be a real and substantial controversy admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion ;
advising what the law would be under a hypothetical state of (
facts....Wbere there is such a concrete case admitting of an immediate and definitive determination of the legal rights "
of the parties alleged, the injudicial an adversary proceeding upon the facts function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or payment of damages.'" the j Plaintiff's Complaint does not " admit of specific relief" as I between GSU and LEPA. The Court is not asked to decide whether LEPA!
can recover treble damages or secure injunctive relief against GSU for!
its failure to wheel power to the STAUFFER site under the circumstances cited here
~
i The matter to be adjudicated under Count One is the injury -
LAFAYETTE, PLAOUEMINE and STAUFFER ma%5e faced with by reason of ;
GSU's anticompetitive activities, and whettier LAFAYETTE, PLAQUEMINE i and STAUFFER may recover damages and/or secure inj unctive reliefi t
4 against GSU under the circumstances.
Count Two, in effect, states that taking the activities of GSU as i normally exposing GSU to liability to LAFAYETTE, PLAO.UEMINE and STAUFFER, is GSU, nonetheless immunized from such exposure and liability to LAFAYETTE, PLAOUEMINE and STAUFFER by reason of a " state '
action immunity." -
It is conceivable that GSU could present a real and substantial l
C C controversy between itself and LEPA which would require this or another. Court to determine whether LEPA is entitled to a judgment fog damages or injunctive relief against GSU for its violation of the Federal antitrust laws. That controversy has not been put before this Court for determination and it may never be put before this Court.
For these reasons, LEPA's Motion should be granted, and it should be dismissed from these proceedings.
MOUTON, ROY, CARM0UCHE, BIVINS, JUDICE & HENKE 200 W. Vermilion Post Office Drawer Z Lafayette, Louisiana 70502 (318) -7430 By:
Ronald J. Judice
'~ Attorneys for LOUISIANA EMERGY AND
~
POUER AUTHORITY CEPTIFICATE ,
- a .?
I HEREBY certify that a copy of the'above and foregoing has been forwarded to all known counsel of record by placing same in the United States Mail, postage prepaid and properly addressed.
Lafayette, Louisiana, this 2 7bday of February,1984, s-RONAtD t'. JUDICE
~
. . . 4. ,
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA I
)
)
GULF STATES UTILITIES COMPANY, )
)
Plaintiff, )
)
- v. ) Civil Action
. ) No. 84-132-B THE CITY OF LAFAYETTE, LOUISIANA,
) .,
THE CITY OF PLAQUEMINE, LOUISIANA, )
STAUFFER CHEMICAL COMPANY, AND )
THE LOUISIANA ENERGY AND POWER ) :
AUTHORITY, ) i
)
Defendants. )
) !
)
) .
ANSWEh' As its Answer to the Complaint of Gulf States Utilities Company (hereinaf ter "Culf States"), the City of Plaquemine, '
Louisiana, (hereinafter "Plaquemine") states as follows:
- 1. ;
Plaquemine admits the allegations contained in 11. '
- 2. !
2a. Plaquemine admits the allegations contained in 12 (a) , except to the extent that they imply that Lafayette is not engaged in the transmission of electricity, which is denied.
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2b. Plaquemine admits that it is a municipal corporation organized under the laws of Louisiana, that it owns an electric generating and distribution system, that it presently engages in the distribution and sale of electricity within its city limits and elsewhere and admits that its generating plant is not presently used as its principal source of energy but avers that its generating plant is currently being operated as its principal source of reserve or standby for its present purchase of non-firm power from Lafayette. To the extent not admitted, the allegations of 12(b) are denied.
2c. Plaquemine admits that Stauffer owns and operates a caustic chlorine plant in St. Gabriel, Louisiana within the -
Middle District of Louisiana. Plaquemine is without knowledge
, sufficient to form a belief as to the truth of the remaining allegations of 12(c).
2d. Plaquemine admits that LEPA is a public power authority created pursuant to La. Rev. Stat. 533:4545.1, eti seq. ,
that LEPA owns and controls the output of a portion of the ,
Rodemacher #2 generating unit which is dispatched for it by I
l Lafayette, that power from said unit is transmitted to some of the members of LEPA, and that both Lafayette and Plaquemine are members of LEPA. To the extent that the allegations of 12(d) are l
l not' admitted they are denied.
Plaquemine admits that Plaquemine is engaged in trade i
or commerce in interstate commerce within the meaning of Section l
L
^ . .
(
N i
2 of the Sherman Act. Plaquemine is without information I sufficient to form a belief as to the truth of the remaining l allegations of 12.
l
- 3. ,
l Plaquemine admits that counts 1 and 2 present a case of l t
actual controversy within the jurisdiction and venue of this l
Court. Plaquemine is without information sufficient to form a !
belief as to whether counts 3 and 4 present such a case. l i
I I
t
- 4. >
Paragraph 4 states a legal conclusion which Plaquemine believes does not require an answer but if required to answer .
Plaquemine would neither admit nor deny the allegations of 14 ;
i because it has no knowledge of them.
t
- i
- 5. !
l Plaquemine admit's that counts 1 and 2 of the complaint i involve contracts performable in this District and that at least
{
two of the defendants are found in this District. The remainder I i
l of 15 states legal conclusions that Plaquemine is not required to -
f answer, but if required to answer, Plaquemine would admit these ;
allegations as to counts 1 and 2. Plaquemine would neither admit ,
nor deny these allegations with respect to counts 3 and 4 because l It is without information sufficient to form a belief as to their
- truth.
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C C 6.
Plaquemine admits that Gulf States is an electric public utility company owned and operated by a private corporation owning and operating over 6000 MW of installed generating capacity, high voltage transmission and subtransmission facilities and distribution facilities in portions of Texas and Louisiana and that Gulf States operates a 500 kV transmission line as part of its backbone transmission system. Plaquemine is without knowledge sufficient to form a belief as to the truth of the allegations concerning the extent of the service area of Gulf States and therefore neither admits nor denies the remaining allegations of 16. .
7.
Plaquemine admits that Gulf States sells electricity at retail to residential, commercial, and industrial customers.
Plaquemine also admits that Gulf States sells electricity at wholesale to municipalities and other utilities and performs bulk transmission service. Plaquemine is without knowledge sufficient to form a belief as to whether rates for such services have been approved by any regulatory authority. To the extent not admitted the allegations contained in 17 are denied.
I O ,
l ( }
8.
Plaquemine admits that Gulf States is also a party to i various interconnection agreements with other electric utility i
systems in or adjacent to its service area, entered into by the other participating utility for the purposes of coordination of generation, economy interchange of energy, to increase the reliability of service, and to permit the efficient, economic use of generating capacity.but denies that such purposes were the only purposes of Gulf States in entering into some of such r agreements. Plaquemine denies that the FERC has jurisdiction over such agreements that is relevant to any issue raised by the ;
Complaint. To the extent not admitted the allegations contained in 18 are denied.
9.
Plaquemine admits the allegations contained in the 2
first sentence of 19. Plaquemine is without knowledge sufficient to form a belief as to the truth of th'e allegations con'ained in ,
the second sentence of 19. Plaquemine denies the alleg, 's contained in the third sentence of 19.
l
- 10.
Plaquemine admits that Gulf States presently provides service to Stauffer's St. Gabriel chloralkali facility over a l
- 138 kV high voltage transmission loop and that service is !
provided to Stauffer through an electric substation located on i c
l
(
( :
, I Stauffer's plant site, which substation is owned, operated and l maintained by Gulf States. To the extent not admitted, the l
allegations of 110 are denied.
11.
Plaquemine has insufficient knowledge to form a belief ;
as to the truth of the allegations of 111, and they are neither admitted nor denied. - '
i f
12.
Plaquemine admits that Lafayette sells electricity at i retail inside its city limits but has insufficient knowledge to !
form a belief as to whether Lafayette sells electricity at retail 'i I
outside its city limits and therefore neither admits nor denies f said allegation. Plaquemine also admits that L&fayette sells and offers for sale electric power at wholesale to other electric j
power systems in Louisiana. Plaquemine denies that Lafayette's retail and wholesale rates are unregulated and avers that those t rates have been approved by the dhly elected City Council of the I City of Lafayette. I i
T
- 13. .
t Plaquemine admits that Lafayette owns gas-fired generating units located within its city limits and owns a substantial portion of the Rodemacher #2 coal-fired generating unit located near Alexandria, Louisiana. Plaquemine admits that j
( (
Lafayette owns and operates transmission and distribution facilities but has insufficient knowledge to form a belief as to whether Lafayette's transmission facilities are located solely within the areas in which Lafayette presently serves at retail.
Plaquemine admits that Lafayette does not own transmission facilities connecting its Rodemacher #2 generating resource to its retail distribution facilities or to its wholesale customers and therefore is dependent on others to provide that service.
Plaquemine is without knowledge sufficient to form a belief as to whether Lafayette's transmission service agreements have been approved by the FERC. To the extent not admitted, the !
allegations of 113 are denied. '
- 14. .
Plaquemine admits that Lafayette is also a member of j LEPA and that it sells power to LEPA. Plaquemine has t
- ]
l-insufficient knowledge to form a belief as to whether Lafayette ,
exchanges power with LEPA, and, therefore, it neither admits nor l
denies that allegation. Plaquemide admits that Lafayette sells i
! power to some members of LEPA. Plaquemine admits Gulf States has an interconnection agreement with LEPA, containing transmission t service schedules. Plaquemine denies such agreement provides for i
- any transmission service for LEPA's members.
Plaquemine admits that LEPA owns no high voltage t
transmission lines for the transmission of power generated at its !
l Rodemacher #2 generating resource, a unit which it co-owns with '
l t
I
l 1-(
t
- t Lafayette and Central Louisiana Electri,c Company. Plaquemine admits that LEPA is not engaged in the business of the distribution of power at retail and therefore does not own any [
facilities for the distribution of power. To the extent not ;
admitted, the allegations of 114 are denied. i
- 15. l Plaquemine admits that it owns its electric generating l t
facilities and that its generating plant has been operated [
infrequently for the last several years to provide energy to its i
- customers. Plaquemine denies that its generating plant is not presently a source of power for its customers, and avers that it {
t employs 13 persons to operate and maintain the plant in standby ,
condition, but admits that during a period of less than three i t
years, when it purchased firm power trom Gulf States, its ;
generating plant was not a source of power except during ;
emergencies which disconnected it from Gulf Statesi transmission system. Plaquemine admits that it owns a distribution system '
serving customers within and withput its city limits and that about one third of all its retail sales are outside the city limits at varying distances. To the extent not admitted the allegations of 115 are denied. f 16.
Plaquemine admits that from 1980 until July, 1983, {
Plaquemine purchased all of its electric power requirements from 8- I
1 C C i Gulf States at wholesale under a contract which also contemplated that Gulf States would purchase Plaquemine's generating capacity for the use of Gulf States. Plaquemine has insufficient knowledge to. form a belief as to whether rates under that j t
contract were approved by the FERC and therefore neither admits l nor denies that allegation. After notification by Gulf States j
that it declined to purchase Plaquemine's generating capacity, in l
, April 1983, Plaquemine -entered into a contract with Lafayette to purchase surplus power and energy backed up by Plaquemine's i generating capacity. Gulf States refused to transmit that power under its contract with Lafayette and insisted on the trans- !
, mission being carried out under LEPA's contract. This required :
the negotiation of a new three-party contract executed on July -
14, 1983, in which Lafayette would sell to LEPA, LEPA would sell !
and Plaquemine would purchase surplus power and energy, serving as a pretext for Gulf States thereafter to contend that it could l invoke La. Rev. Stat. S33:4545.36 in its sole discretion to 1
attempt to restrain retail sales by Plaquemine outside its municipal limits in areas located *more than 300 feet from its i 1
distribution facilities as of April, 1979. Plaquemine denies that no notice has been given to Gulf States to terminate the ,
transmission service under the existing Gulf States /LEPA i interconnection agreement. To the extent not admitted the !
all'egations of 116 are denied.
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- 17. i l
Plaquemine is without knowledge sufficient to form a t
belief as to the truth of the allegations contained in 117 and, '
therefore, neither admits nor denies them. '
i 18 Plaquemine admits that it has entered into a contract with Stauffer in which*it has agreed to sell electric power to Stauffer for five years and eight months commencing September 1, 1984. Plaquemine admits that Stauffer has a right to terminate the contract on thirteen months' notice that it will shut down its St. Gabriel facility, that it will sell the plant to a third ;
party, or that the cost of electric power has become a primary -!,
cause of Stauffer's inability to be competitive in the relevant ?
marketplace in the manufacture and sale ot chloralkali from the facility. h Plaquemineadmitsthatthepowerthatigproposesto sell to Stauffer will be a portion of the power it purchases from -
Lafayette. Plaquemine admits that it has conditioned its contract with Stauffer on obtaining the agreement of Gulf States l
to transmit power from Lafayette to a new delivery point :
requested by ?laquemine which would make the transaction '
feasible. Plaquemine admits that it proposed to have the l wheeling carried out under Lafayette's interconnection agreement !
with Gulf States or under the interconnection agreement between ,
i Plaquemine and Gulf States. To the extent not admitted the '
i allegations of 118 are denied.
I
. , , . . . - - - - . , . . , , , - . . _ _ . .. ?
. . -. - - . - _ , - . - = . -..- - - - - . - _ - - . .-.
- , j
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1 19. I t
Plaquemine admits that under its present interconnection agreement with Gulf States the rating of the !
4 interconnection is presently 25MW but denies that its present t l
agreement obligates Gulf States to transmit 25MW. Plaquemine I admits that there is at present but one delivery point for Plaquemine.
Plaquemine admits that its interconnection agreement I
i with Gulf States contains language in Section 1.2 stating the l purpose of the contract, that Section 1.1 of Service Schedule LTS appended thereto also contains language stating the purpose of !
t the wheeling schedule, and that both refer to coordination of- l i
generation, but Plaquemine denies that this was the sole purpose i of the contract or of the provision of transmission service by f
- t Gulf States. Similiarly, Plaquemine admits that Lafayette's '
t interconnection contract with Gulf States contains Janguage in {
Section 1.2 stating the purpose of the contract, that Section 1.1
- t of Service Schedule LTS appended theret.o also contains language [
stating the purpose of the wheeling schedule, and that both refer to coordination of generation, but Plaquemine denies that this was the sole purpose of that contract or of the provision of [
transmission service by Gulf States to Lafayette. Plaquemine ?
admits that the Lafayette-Gulf States interconnection agreement conditions such wheeling upon the existence of an interconnection ,
agreement between Gulf States and "such other entity." To the extent not admitted, the allegations of 119 are denied. .
l 1
i
( [
i t
- 20. I Plaquemine denies the allegations contained in the i first sentence of 120. Plaquemine specifically denies that LEPA r
is presently wheeling power to Plaquemine. Plaquemine admits l l
that it has been proposed by Plaquemine that Gulf States lease '
its substation located at the Stauffer plant to Plaquemine, and that then the substation at Stauffer -- across the Mississipoi River from Plaquemine and slightly downstream -- would constitute l
a second Plaquemine delivery point under Gulf States' existing interconnection agreement with Plaquemine or a revised ;
i agreement. To the extent not admitted, the allegations of 120 are denied. .l i
- 21. i Plaquemine admits that under the proposal there would
. A be two Plaquemine delivery points; there would be a total maximum f
load of approximately 92 MW (i.e, not in excess of the 100 MW permitted by the Lafayette-Gulf States interconnection agreement [
4 -
which Plaquemine and Lafayette both have requested be the vehicle !
r for carrying out the transmission service). Plaquemine denies each and every remaining allegation contained in 121.
' [
t i
22.
i
! Plaquemine denies the allegations of 122. !
I i
t i
i I
( C 23.
Plaquemine admits that Gulf States has transmitted or .
wheeled some power to Plaquemine. Plaquemine admits that its present request would be different from the transaction presently being carried out by Gulf States for Lafayette, Plaquemine and LEPA in that Plaquemine would not be required to purchase power from LEPA, would have two delivery points instead of one (thus saving Gulf States the substantial and unnecessary expense of improving facilities on its system near the Ition substation in order to permit Gulf States to supply increased amounts of power
/
to Plaquemine, and the substantial and unnecessary expense to Plaquemine of erecting an unnecessary, expensive and wasteful river crossing of the Mississippi River at one of its widest .
points), would obtain delivery of additional amounts of power to meet its growth in load, and would reduce the adverse impact on Gulf States' other customers that would otherwiseE result if the Stauffer plant were shut down. Plaquemine admits that Gulf States has considered the impact of providing the requested wheeling service but denies that such consideration has been reasonable or in good faith. Plaquemine denies that it threatened Gulf States with legal action. Plaquemine denies that Gulf States will be required by regulation to provide wheeling services to other customers for the purpose of remedying discrimination. Plaquemine denies that such service would have an adverse effect on the general consumit.g public, Gulf States' customers, Gulf States' generation, transmission and distribution
( ( :
1 System, and the operation and reliability thereof, and denies that it would adversely affect Gulf States' ability to render ,
adequate service to its customers and denies that it would be contrary to the public interest and to public policy of either !
the State of Louisiana or the United States of America. l Plaquemine denies that the " reasons" set forth by Gulf States' accurately reflect the consequences of the nroposed transaction. Plaquemine denies that Gulf States is proposing to refuse to wheel for any proper reason. 'ro the extent not admitted, the allegations of 123 are denied.
24.
l Plaquemine admits that Plaquemine contends that a .
refusal by Gulf States to wheel to Sg. Gabriel would be a i
violation of Section 2 of the Sherman Act under the rationale of Otter Tail Power Co. v. United States, 410 U.S. 366 (1973).
Plaquemine denies that it contends that a refusal by Gulf States to lease or sell its substation facill' ties at St. Gabriel (fould constitute a violation of Sherman*Act Section 2. Plaquemine admits that Gulf States denies these allegations and that Gulf j
States seeks declaratory relief as stated in 124. To the extent !
not admitted, the allegations of 124 are denied. '
I 25.
Plaquemine admits the existence of an actual case in F
controversy. Plaquemine admits that it has agreed with Stauffer i 1
i
( ( .
I that they will pursue legal remedies available to them in the i
event that Gulf States refuses to wheel if they are advised that ,
l l such remedies are available to them. To the extent not admitted, {
the allegations of 125 are denied, f
COUNT ONE i t
l :
- 26. s t
l ?
, Plaquemine believes that 126 states a legal conclusion that it is not required to answer, but if it is required to answer it would admit that Count one is a claim for declaratory f t
judgment against Lafayette, Plaquemine and Stauffer as requested i by Gulf States, but it would deny that it is a good claim. To .f the extent not admitted, the allegations of 126 are denied. !
{
r i
- 27. i a t Plaquemine admits that it contends that Gulf States has
\
a monopoly over the transmission of electric power over high t l
l voltage transmission lines in a rtlevant geographic market, and l that a refusal by Gulf states to wheel power to permit Plaquemine to serve stauffer, under all the circumstances herein present, j would constitute an abuse of that monopoly power in violation of f<
l Section 2 of the Sherman Act. Plaquemine has insufficient !
knowledge to form a belief as to what other defendants will !
I i
, i
- -___.-,,..---,m_, . . , _ ._--,m___.-,__.._,__.,__.,,m.___.-.___,_,__.,,.__-._._,y__.,._ _ . _ , _ _ , _ ,
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- 3 !
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contend, so it'neither admits nor;
~
denies Gulf States' allegations '
en to u. heir contentions.- To the extent not admitted, the
.allegationssof 127 are denied. ;
s.- ;
l
~
O-m ,- -
28.
^
Plaquemind admits that Gulf States makes the denials l e
5 ma'de4 n
g by,it:-
in the,first sentence of 128 of the complaint. !
3, t PlaquemiYie
, 's -
s denies thdt .either federal or state public policy compels Gu'lf Jeste'st'to refuse to perform the requested service. I x e -,
To:the extent not admitted, the allegations of 128 are denied.
i s
- ,s
,4 f
- 29.
Plaquemine admits that the electric utility industry is .{
capital' ,.
- l'ntensike but has ' insufficient knowledge to form a belief cas to whether<lt is ,the mest capital intensive industry in the
.- 1- [
country todej and therefores neither admits nor denies that it is a
sthe atost capital intensive. Plaquemine admits that Gulf States y hps a large industrial load and. that it must invest 'in generating plant to se:::ve that load. !
Plaquehine admits that Gulf States in ;
pla$ning itss, generat!Ing' facilities attempts to meet the needs of !
j its~ forecasted n loadsbut denies that any specific generating plant !
is committed or. dedicated'in any way to any specific load. To !
the best of P?.aquemine's iriformation and belief, Gulf States i refunes to serve; industrial customers without their having first ,
executed:a cont act for a term of years, as it has required of
.. e Stautter'(which particular contract will expire pursuant to its r
l
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) k-a b 4
% s t
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. , . _ _ - - ....-..,3 _..___-___-_._~__ vin'
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L terms on September 1, 1984). Plaquemine admits that there is a ;
substantial lead time for generation but denies that it is - :
normally eight to 15 years. Plaquemine admits that Gulf States i must invest in new generation in advance of significant added demand if it wishes to add the new busines.s promptly. Plaquemine admits that Gulf States must also enter into long term fuel contracts to assure its customers of a reliable supply of electric energy when th'ese new units are put on line. To the i extent not admitted, the allegations of 129 are denied. ;
30.
[
Plaquemine has n6 knowledge of the economics of the telecommunications business and therefore can neither admit nor '
l deny the comparison alleged in 130. -
\
- 31. ;
, Plaquemine admits the allegations contained in the i i
first sentence of 131. Plaquemine denies the allegations contained in the second and third' sentences of 131. Plaquemine I denies that Louisiana law restrains competition between municipal ;
electric utilities and other electric utilities except [
competition for those customers bound by contract to purchase I
from a particular utility for trade during the term of such a I
contract.
i 17 - :
r s
6
- ,. . . , , . - . . - . _ , . ~ . _ . , . , . , - _m,.-,m.,.y. .,,,-._.--.m,.,.,.,,-.,,,%%.%- ,,,,,.,m,.. .--_ ,.
( b i
i 32.
Plaquemine admits the allegations contained in the first sentence of 132. Plaquemine denies the allegations contained in the second, third and fourth sentences of 132. !
. Plaquemine has insufficient knowlege to form a belief concerning .
the allegations contained in the fifth sentence of 132, and, >
therefore, it neither admits nor denies them. TA the extent not ;
admitted, the allegations of 132 are denied.
i 33.
Plaquemine denies the allegations contained in 133. !
l f
- 34. .!
Plaquemine admits that all,of Gulf States' rates for
- retail service in Louisiana are required to be filed with the a
Louisiana Public Service Commission and that its wholesale rates !
,A !
l are required to be filed with the PERC. Plaquemine admits that
, the FERC frequently uses cost-of-service as the basis for determining the lawfulness of rates if the parties have not i-agreed on a settlement and.if the rate is contested and goes to f hearing. Plaquemine has insufficient knowledge to form a belief i
as to whether the Louisiana Public Service Commission employs j cost-of-service as the standard for judging the lawfulness of r rates. Plaquemine has insufficient knowledge to form a belief as '
to whether Gulf States is required to file with a Texas '
regulatory agency. Plaquemine has no knowledge of whether all of t
. i
. - - . - , - , , , . , - ._ , _ . - - . , _ . . - , . - - , - - . . - , . - - . - . _ - - . . - . . . . - _ - . _..._. -,-. L
(
( !
t Gulf States' retail, wholesale and transmission service rates are based on Gulf States' cost of service, and therefore it neither !
t admits nor denies said allegation. Plaquemine admits that under '
both federal and' Louisiana p611cy, the rates of electric utilities organized as private, for-profit, corporations are subjected to review of regulatory commissions for the purpose of preventing monopoly profits, but that neither state or federal law requires such review of the rates of electric utilities owned and operated by municipal corporations. Plaquemine denies the ,
allegations contained in the third and fourth sentences of 134. ,
To the extent not admitted, the allegativus of 134 are denied.
- 35. .
Plaquemine has insufficient knowledge to form a belief f as to the truth of the allegations contained in the first and second sentences of 135 and, therefore, neither admits nor denies I such allegations. Plaquemine denies that the speculative loss of l 36% of Gulf States' electric revenue to Plaquemine or other ,
^
municipal electric utilities is the necessary, likely, or even a '
possible, consequence of Gulf States being advised it will violate the antitrust laws by refusing to wheel power under the i j circumstances of this case. To the extent not admitted, the remaining allegations of 135 are denied. !
l l i
[
I
[
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. . I i
( b j
- 36. i Plaquemine denies the underlying assumption of 136, ,
namely that the speculative loss of 36% of Gulf States' revenue !
would be a consequence of Gulf States' being required to wheel in this case. Plaquemine denies the remaining allegations of 136. j
- 37. [
Plaquemine admits that some public utilities base their L
long term generation planning on projections of their future load !
, i including the load of those customers expected to be added to ;
system load, and excluding the load of those customers which plan !
to leave the system or reduce their demand. Plaquemine denies the remaining allegations of 137. .-
)
. l
- 38. !
Pl'aquemine denies the allegations contained in 138. i
- 39. !
Plaquemine admits that.*the transmission service requested would be supplied over lines that are part of the interconnected interstate transmission system of Gulf States and avers that whether transmission service over those lines in i
interstate commerce is subject to the jurisdiction of the FERC '
un' der the Federal Power Act is a legal conclusion which Plaquemine is not required to answer, and respectfully Iefers the ,
Court to the statute.
t t
i I
0 . .
( C !
- 40. .
i Plaquemine avers that the allegations contained in 140 consist wholly of legal conclusions which Plaguemine believes it is not required to answer, and respectfully refers the Court to l l
the statute.
41.
l The allegations contained in 141 are denied.
42.
Plaquemine avers that the allegations contained in the f first sentence of of 142 are legal conclusions which Plaquemine [
is not required to answer, but that, if required to answer , it ,
would admit them. The remaining allegations of 142 are denied. ,-
s
- 43. '
. i Plaquemine denies the allegations contained in 143. i i
44$
Plaquemine admits that. Gulf States proposes to deny )-
defendants' request. Plaquemine admits that Gulf States is seeking a declaration that the denial of the wheeling requested by defendants would not be anticompetitive but denies that such I judgment would be warranted after consideration by the Court of the facts and law in this case. To the extent not admitted, the !
allegations of 144 are denied.
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WHEREFORE, Plaquemine prays for a declaration that Gulf 3
States' refusal to transmit power to Plaquemine at the requested St. Gabriel delivery point would violate federal antitrust law ,
i and further prays for an award of its costs, including reasonable attorneys' fees.
COUNT TWO 45.
Plaquemine avers that the allegations ~ contained in 145 are conclusions of law which Plaquemine is not required to answer, but if required to answer, Plaquemine would respond: ,
Plaquemine admits that Count Two is a claim for a declaratory i judgment against Lafayette, Plaquemine, Stauffer and LEPA, as .
referred to in 145, but denies that it states a good claim. To j the extent not admitted, the allegations of 145 are denied.
. A 46.
Plaquemine repeats all answers to paragraphs 6 through ;
- 44. -
47.
Plaquemine denies that La. Rev. Stat. S33:4545.36 contains the provision alleged. It further denies that La. Rev. i
+ I Stat. $33:4545.36 is determinative of any issue in this case.
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- 48. '
Plaquemine admits that it has executed a contract with 5
Lafayette and LEPA for the purchase of surplus power and energy. Whether or not Lafayette has executed a contract with LEPA for the " purchase of capacity" within the meaning of La.
Rev. Stat. 533:4545.36 is a legal question that Plaquemine is not l required to answer, but if required to answer, Plaquemine would deny that Lafayette has executed such a contract. Whether Lafayette and Plaquemine are, or either of them is, subject to i the prohibitions contained in the LEPA statute is a question of i l !
law which Plaquemine believes it is not required to answer, but l if required to answer Plaquemine would deny those allegations.
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In any event, Plaquemine denies that those prohibitions are *t inconsistent with Gulf States' obligations under the antitrust !
i laws. Plaquemine admits that Gulf States has not given its !
consent to Plaquemine's and Lafayette's serving Stauffer, admits i j
that Stauffer is at present a customer of Gulf States, but denies i i
that Stauffer is contractually obligated to purchase powbr from Gulf States for the period follow 1ng September 1, 1984. [
Plaquemine admits that the Plaquemine/LEPA/ Lafayette agreement of l July, 1983, has not been cancelled. To the extent not admitted, I the allegations of 148 are denied.
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1 Plaquemine avers that the allegations contained in 149 ;
i are conclusions of law which do not require an answer, but if !
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required to answer, Plaquemine would respond: Plaquemine would deny that under Louisiana law Plaquemine and Lafayette may not legally serve Stauffer. Plaquemine would also deny that a refusal by Gulf States to consent to such service would be immunized from the antitrust laws under the principles set forth in Parker v. Brown, 317 U.S. 341 (1943), as interpreted by the Supreme Court and by the United States Court of Appeals for the 5th Circuit in Southern. Motor Carriers Rate Conference v. United States, 702 F. 2d 532 (1983), petition for cert. pending, No. 82-1922.
. WHEREFORE, Plaquemine prays that the Court declare Gulf States is not immune from the antitrust laws for the transaction at issue here as a result of the state action of the state of .
Louisiana, and further prays for an a, ward of its costs, including reasonable attorneys' fees.
A COUNTS THREE AND FOUR 50.-66.
Plaquemine believes that it is not required to answer 150-66 of the Complaint. In any event, Plaquemine has insufficient knowledge to form a belief as to the truth of the allegations contained in 1150-66 and therefore neither admits nor denies such allegations.
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COUNTERCLAIM
- 1. Defendant Plaquemine is the plaintiff in this counterclaim in which plaintiff Gulf States is named as counterclaim defendant.
- 2. Jurisdiction of this counterclaim is based on Sections 1 and 2 of the Sherman Act (15 U.S.C. SS1 and 2),
Sections 4 and 16 of the Clayton Act (15 U.S.C. SS15, 26,) and 28 U.S.C. SS1331, 1337, 2201, 2202.
- 3. The acts alleged in this counterclaim occurred in (or will occur in) or affected (or will affect) trade or commerce among the states. '
- 4. Gulf States has monopoly power over the sale of-electric power and energy in bulk and over the transmission of .
electric power and energy in bulk in.a relevant market in Louisiana.
- 5. Gulf States' unreasonable refusal to provide the
. A wheeling service requested by Plaquemine referred to in the complaint would constitute monopolizat' ion or an attempt to monopolize in violation of Section 2 of the Sherman Act, 15 U.S.C. 51, contrived, in part, by contracts which unreasonably restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. $1.
- 6. Gulf States has raised unnecessary barriers to competition by using its strategic dominance in transmission to insert clauses in its contract with LEPA so that it could -
threaten the possible application of La. Rev. Stat. 533:4545.36, o ,
- ~
t constituting monopolization in violation of Section 2 of the t Sherman Act, 15 U.S.C. 51, contrived, in part, by contracts which j unreasonably restrain trade in violation of Section 1 of the ,
r Sherman Act, 15 U.S.C. 51.
i
- 7. Gulf States has used its strategic dominance in transmission to refuse to transmit power from Lafayette to Plaquemine under the Lafayette /GSU power interconnection
, i agreement and to insist that the LEPA contract be used as a [
t vehicle for such transmission for the purpose or with the anticipated effect that by agreeing to such contract Lafayette and Plaquemine would thereafter be bound to refrain from competing with Gulf States in certain . territories referred to in La. Rev. Stat. $33:4545.36, in violation of Section 2 of the Sherman Act, 15 U.S.C. $1, contrived, in part, by contracts which unreasonably restrain trade in violation of Section 1 of the j Sherman Act, 15 U.S.C. 51.
TheCityofPlaquemineisentitledt$injunctive
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relief from the aforementioned violations of the Sherman Act under Section 16 of the Clayton Act, 15 U.S.C. 526, inasmuch as ;
said violations threaten Plaquemine's ability to perform its l l
contractual obligations to Stauffer and to Lafayette and its l opportunity to earn the revenue to which it will be entitled for the sale of power and energy to Stauffer and for the sale of j st'andby capacity to Lafayette.
- 9. The City of Plaquemine is entitled to recover l threefold the damages sustained by it as a result of the e ;
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aforementioned violations of the Sherman Act under Section 4 of the Clayton Act, 15 U.S.C. S15, inasmuch as said violations have ,
injured Plaquemine in its business and property by causing it to incur substantial transactional costs in negotiating and drafting '
unnecersary arrangements in order to obtain bulk power furnished by Lafayette through LEPA rather than directly from Lafayette.
WHEREFORE , Plaquemine prays the Court for judgment in its favor and against Gulf States, declaring that, in the circumstances of'this case, Gulf States has violated Sections 1 and 2 of the Sherman Act, enjoining Gulf States from refusing the requested wheeling service and awarding Plaquemine threefold the damages sustained by it as a result of Gulf States' violations of the Sherman Act. Plaquemine further prays for such additional ,
relief as may be appropriate and for, recovery of its costs, including reasonable attorneys' fees.
Respectfully submitted,
/ #M d
~ William C. Dupont (Trig Attorney)
DUPONT, DUPONT & DUPOW 423 Railroad Avenue Plaquemine, Louisiana 70764 Telephone: (504) 687-6893 Attorney for defendant City of Plaquemine OF COUNSEL:
Wallace E. Brand David A. Leckie
- Se.an T. Beeny BRAND & LECKIE 1901 L Street, N.W.
Suite 480 Washington, D.C. 20036 Telephone: (202) 347-7002 t
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I IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA
)
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Gulf States Utilities Company, '
)
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Plaintiff, ) L
)
- v. ) Civil Action
) No. 84-132-B
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City of Lafayette, eti al. , )
) :
Defendants. )
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e CERTIFICATE OF SERVICE L I, William C. Dupont, attorney for defendant City of ,
i Plaquemine, hereby certify that the foregoing Answ$r was served i
on the 27th day of-February, 1984, by depositing a copy thereof f in the United States mail, postage prepaid and addressed to: , l Tom F. Phillips, Esquire Taylor, Porter, Brooks & Phillips Louisiana National Bank Building P.O. Box 2171 Baton Rouge, Louisiana 70821 i Attorney for plaintiff Gulf States Utilities Company (
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9 John H. Schafer, III, Esquire Covington & Burling 1201 Pennsylvania Ave., N.W.
Suite 300 .
P.O. Box 7566
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. Washington, D.C. 20036 Attorney for defendant Stauffer Chemical Company Ronald J. Judice, Esquire Mouton, Roy, Carmouche; Bivins, Judice & Henke '
200 W. Vermilion Street Lafayette, Louisiana 70501 Attorney for defendant Louisiana Energy and Power Authority H. Lee Leonard, Esquire Voorhies & Labbe 718 S. Buchanan Street P.O. Box 3527 -
Lafayette, Louisiana 70502 Attorney for defendant City of .
Lafayette
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,4ffiliam C. Dupont, @re Dupont, Dupont & Dupont 423 Railroad Avenue Plaquemine, Louisiana 70764 Telephone (504) 687-6893 D
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Ut.ITED STAfES DIdIR1CT COURT
- MIODLE DIbT31CI CF LOUI51A14A
- CIVIL I.Cf1CN I4UI4Ishh S4-132 GULY STMed UTILITIE3 COMPANY
- Plaitatif f VERSUS
- SECIION "B" Tile CITY CF LAFAYETTE, LOUISIAdA, THE CIIY OF
- PLAQUEMihh, LOUISIANA, dTAUEFr.H CHEMICAL CQ4PANY,
- and This LOUIdIANA ELECTRIC
- POWER AUTHORITY a
Ourendants l'0TICE CE MOIIGN TO DISMISS FOR ILIPROPER V2240E As.0 LACK OF JURISDICTIOd To: 44r. Tcxn E. Phillips Taylcz, Porcer, urooks & Phillips P. O. So,c 2471 aaton Rouge, LA 70821 Mr. Hon Judice ,
Mouton, Roy P. O. Drawer a Lafayecto, LA 70302 Hr. Wallace drand urand & Leckie 1901 L Streut NW, Suico 43u hashington, CC 20036 Mr. Jonn senator Covington 6 Burling '
1201 Pennsylvania Avenue, !4W dashington, CC 200J ti on eno day of Pleaue take notica, that o' clock, in the forancen
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an De heard, the undersigned, Louisiana, soon thereafter The sa counsel Latayette, c
or au City of attorney for the defendant, _, United Statas Court Rouge, Court, at Rocht _ Baton ,
will, move this of Louisiana, Middle District plaintiff's complainc for for the House Dismissing -
for an order.
Louisiana, i diction. '
improper Vunue and Lack of Jur s tion)
V00RHIES & LAsus'( A Professiona BY:
- W. Gk.hALD GAUDCT P. C. Box 3627 70502 Laf ayetta, LA (310) 232-9700 Attorneys for The City of Lafayette, Louisiana above ana ERTIFICATE of tne a copy .:
that of certify known councal 1 HEREaY all ded.to foregoing pleading hasinbeen States' Mail, postage the forwar United same record by placing d day of -
prepaid and properly Lcuisiana, addrause . this _
Laf ayette ,
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. AIRED STATES DISTRICT COUR'T e.!OOLE DISTRICT GF LOUISIANA GULF STATES UTILITIIS
- CIVIL ACTION NUMBER 84-132 COMPANY Plaintii;
- VERSUS
- SECTICN "B" i
Tile CITY OF LAFAYETTE,
- LOUISIANA, THE CIf% OF PLAQUEMINE, LOUISIA>A,
- STAUFFEk CHEMICAL COMPANY, and THE LOUISIANA LLICTRIC
- POWEH AUTh0RITY Defendants a MOTION TO DISMISS FOR IhlPROPER VENUE AAD LACK 0F JURISDICTION The defenaant, The City of Lafayette, Louisiana , moves the Court as follows:
- 1. To dismiss tne action on tne gro,unds of improper venue. Jurisdiction alleged in the complaint in thiu action is .
based on 15 USC Sec.162 (Sherman Act,, 15 USC Sec.156 26 (Clayton Act) and 28 USC Sec.2201-2202; venue is, therefore*,
based on 15 USC 22 and/or 28 USC 1391. Venue is improper under both sections.
- 2. To diamias the action because as appears from the complaint, the court has no jurisdiction for the reason that there is no diversity as required by federal law, and tne
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no question arising ,
for proper determination action presents under the Constitution orVOORBIES laws of& the LABBE' United States.
( A Proressional Law Corporation)
BYr W. GERALD GAUDET P. c. Box 3527 Lafayecto, LA .70502 (318) 232-9700 Attorneys t'or The City of Lafayette, Louisiana CSRTIFICATE the above and certify that a copy of I HERESY of all known counsel foregoing pleading has eeen forwarded to Mail, postage United S tatea by placing same in the
- record prepaid and properly addressed. day of Louisiana, chia _
Lafayette,
_, 19_.
W. GERALD GAODET R
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I UNITED STATES DISTRICT COURT !
1 MIDDLE DISTRICT OF LOUISIANA t
GULF STATES UTILITIES
- CIVIL ACTION NUMBER 84-132 l COMPANY Plaintiff
- j VERSUS = SECTION "B" THE CITY OF LAFAYETTE, * '
LOUISIndA, THE CITY OF PLAQUEMINE, LOUISIANA,
- STAUFFER CHEMICAL COMPANY, and THE LOUISIANA ELECTRIC *
, POWER AUTHORITY Defendants
- i MEMORANDUM IN SUPPORT OF ;
MOTION TO DISMISS FOR ;
IMPROPER VENUE AND JURISDICTION r Plaintif f, Gulf States Utilities Capany, has filed a Petition with this Court, seeking damages and a declaratory ,.
judgment against defendant, The City of Lafqyette, Louisiana, I under the provisions of the Sherman and Clayton Acts (15 USC ,
1227). In this Petition, plaintiff has alleged two (2) separate i claims against the City of Lafayette. The first claim set forth'(
in Counts I and II involves a refusal of Gulf States Utilities f- Capany to permit use of its electrical facilities and to wheel i
, i l power to Plaquemine for its service to S tauffer Chemical ?
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C apany.
In this claim, Gulf States Utilities Capan/ has i
- included the City of Plaquemine, Louisiana, and Stauffer c Chemical Capany as defendanta.
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, VENUE Soth the City of Placuemine and Staufrer Cnemical Company are founc in the Middle District of L ouisiana , and thus, under 28 .5C 1392(A), venue ia proper in the Middle District with respect to the City of Lafayette on Ccun ts I and II, even thougn the City of Lafayette is a municipal '
corporation tound ana/or transacting business within the Wescorn District.
However, ne second claim in plaintiff's Petition
( entitled "C ount III" in plaincitf's Petition) la entirely unrelateu to the first claim described above. Plaintiff's secono claim seer.s damages and injunctive relief uncer the Clayton Act for tne city at Lafayette's propcsal to buy out some or OLtMCO' customers. The facts which underlie plaintiff's second claim against the City of Lafayette are l c
entirely unrelateo to tne facts of plaintiff's first claim.
Under Federal Rule or Civil Procedure IS(a), a plaintiff may join any numoer of claims that he may have in a suit against the defendant, but venue must be prcoer as to eacn claim.
( Federal Practice and Procedure, Wright, Miller , Cooper , Volume 15 Chapter 8 S ecti on 3808). Plaintiff's secono claim is asserted only against the City of Lafayette, a munici pal, *-
corporation residing ano/or transacting business only in the ,
W es tern Diatrict. The City of Lafayetto does not conduct l business in the Middle District. The venue proviaions of the
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Clayton Act raquira tue plaintiff to file suit against a defenaant corporation in the judicial district whereof the corporation is an innabitant; wherein it may be found; or wherein it transacts business. (15 USCA Section 22) The general venue statutes also require plaintiff to file his petition against a corporation in the district wnerein the corporation is licensed to do business or'ia doing business. (28 USCA 1391)
Plaintiff cannot avail himself of 23 USCA 1393(A), sinco neither the City or Plaquemine nor Stauffer Chemical Company are joined as defendants in the plaintiff's second claim against the City ot Lafaycete. Thus, venue is improper with respect to plaintiff's second claim (Ceunt III) against the City of Lafayette.
Additionally, defendant objects to venue with regard to plaintitf's Fourth Count acuerting a cause of action under 42 USCA 1903. Jurisdiction under the Civil Rights Act is granted to the federal courta pursuant to 28 USCA 1343. No special venue la provided by tnese statutes; ra ther , the general venue statutes are applicable. Buhl v. Jeffes, 1977 F.S. 1149. The City et Lafayette in the only detendant against whom plaintift asserta a cause of action under 42 USCA 1983 and 28 USCA 1343. As stated above, the City of Lafayette is a municipal corporation residing and/or transacting business only in the Woutern District. By virtue of 28 USCA 1391, a corporation may be sued in any judicial district in which it is
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incorporated or licensed to do business cr is doing business. i thus, the t41ddle District la not a proper venue for a claim filed against the City of Lafayetto.
Improper venue with respect to Counts III and IV j require dismissal of plaintiff's petition against the City of ,
Lafayette.
. JURISDICTION ;
Additionally, tnere is no " federal question" jurisdiction in this case for Ccunts I and II of plaintiff's complaint. It is well settled enat feucral question l jurisdiction cannot be created by anticipating defenses based upon federal law in plaintiff's (GdU's) complaint. Metcalf v.
City of Watertcwn, 9 S.ct. 173, 123 03 536 (1980); Phillios Petroloum Company v. Texaco, Inc., 94 S.Ct. 1002, 415 US 125 ,
(1974). The rule applies with equal force unen plaintiff seeks a declaratory juagments an action for a decl$ratory judgment is ,
within federal question jurisdiction only if the coercive action that could otherwise have been brought would have been within tnat jurisdiction. (Federal Practice and Procedure, W rignt , Miller, Cooper, Volume 13 Section 3566). The operation i
Act procedural only; the act ;
of the Declaratory Judgment is merely grants authority to tne courts to use an additional.. ,
remedy in cases in which they would otherwise have t jurisdiction. (Federal Practice and Procedura, Wright, Miller, Cooper, volume 10A, Sections 2355 and 2766.) .
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could not bring a coercive action plaintiff (GSU?
tne. City of Lafayette, based upon either against the defendant, Act or the Clayton Act under the facts alleged in the Sherman nas made no Counts I and II of plaintiff's petition. Plaintiff that defendant has violated the complaint to the etfect Count II of it's Sherman or Clayton Acts in either Count I .or complaint merely the contrary, plaintiff's complaint. On the by anticipates a defense to an action that could be brought defendant, Lafayette, for br'each at contract under state law.
anricipated its " federal In its petition, plaintiff hau merely to defendant's claim that plaintiff breached question" defense its contract with Lafayette.
At this timc, the City of Lafayette hja caly requested with Gulf States.
delivery under its interconnection agreement no allegations as to Gulf Lafayette has made The City of laws. Gulf States States' possible violations of the antitrust federal question jurisdiction using an anticipatory has alleged City of laws that the upon tha anti-trust complaint based Lafayette has never raised.
and II of the petition,.,
Specifically, in C ounts I plaintiff actually asserts that, by virtue of state regulation, presenting a question (thus authorized by the anti-tr,ust laws, it in immune from possible anti-trust of federal law),
against it <
file suit liability should the defendant decide to Skelly 011 Comoany v. Phillips Petroleum law. In under state S.I70-a%,. ? 'Y *r*
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C c:acany , 70 S.Ct. d76, 339 US 667 (1950), the Supreme Court clearly rejected tne possiellity that, under these circumstances, the federal courts have juriudiction to hear the case. As stated in Skelly, it would " distort the limited procedural purpose of the declaratory judgment act" to permit a party by " artful pleading" to anticipate a defense based on federal law and thus bring witnin federal jurisdiction, a case that coula not otherwise be heard in faderal ecurt. Again, in Public Service Ccmmissioner of Utah v. Wycoff Ccmnany, 73 S.Ct. 236, 344 US 237 (1952), tne court statso:
Where the complaint in an action for declaratory judgment aeeks in essence to assert a defense to an impending or threateneu state court action, it is the enaracter cf the threatened action, and not of the defense, which will determine whether thore is fadoral-question jurisdiction in the District Court. It the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious.even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in ene nature of a defense to a threatened cause of action.
In Federal Practice and Procedure, Wright comments on the above case in ene following manner:
Despite the Court 's use of auch words as
" doubtful" and " dubious", it seems clear that this is the law today, ...therefore, if, but for the availability of the declaratory judgment procedure, the federal claim would ariae only as e defense to a state created action, juriadiction is lac!cing.
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e See also Government Etaployees Insuranco Cc.mpany v. Loslou c D.C., La. 1967, 272 F.Supp. 421:
A plaintiti, if hia own claim presento no material and substantial federal question, ia by now allowed to securo a federal forum anticipating a fedarai queotion in the opposing party's def ense . . .W here a prospective defendant initiates the proceeding by way of a declaratory suit, it ought to be necausary to hold that the prospective plaintiff's claim must contain the federal question, and that a federal question posed oy the defense or tao ceclaratory plaint 12r (traditional detendant) does not surrice cor raderal question Jurtsciction. (empnasts auceu)
. Since plaintiff's claim againut uaiencant under Counts I ana II or plaintiff's petition does not allage a federa]
question sufficient to confer federal juriJdiction Cn thin court, plaintiff's claim must be dismisaud.
V00HHIES & LABSh '
(A Protossionp1 Law Corporation)
BY:
W. GERALD GAUDET P. O. Dox 3527 Lafayette, LA 70502 (318) 232-9700 Attorneys for The City of Laf ayette, Louisiana ,
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l See also Government eriployees Innuranco company v. f.aolou, D.C., La. 1967, 272 F.Supp. 421:
A plaintift, it hiJ own clai.n prosento no material ano substantial federal question, la now allowed to Jecuro a fedural forum by anticipating a federal question in tho -
opposing party's defense. . .Whero a prospective defendant initiatos tiio proceeding by way of a declaratory suit, it
,ought to be necausary to hold that the prospoctive plaintiti's claim must contaan 1 the faderal question, and that a faderal Question posed oy l the defense or too '
ceclaratory plaintift (traditicnat docendant) '
does not nutrice tor r odearal qu eira t i on Jur t saicti on. (ompnasts aucou)
Since plaintisf's claim againut aufencant under Counta I I anu II of plaintiff's petition acas not allogo n federal quection sufficient to confer federal jurladiction en thia ;
court, plaintiff's clain must be dismiadud.
I V00Hi!IES & LAGShf (A Protossional law Corporation)
DY
'a . GEHALD GAUDET P. O. Dow 3527 .
Lafayette, LA' 70$02 ;
(318) 232-9700 Attorneys for The City of Laf ayette, Louluiana i
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