20200515Dkt 10 Appellees Ntc Pursuant to Fed Rul 12.1(a).pdf

NOTICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12.1 - 1

No. 20-35146

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FRANKLIN ENERGY STORAGE ONE, LLC; FRANKLIN ENERGY STORAGE TWO, LLC; FRANKLIN ENERGY STORAGE THREE, LLC; FRANKLIN ENERGY STORAGE FOUR, LLC,
Plaintiffs - Appellees,
v. PAUL KJELLANDER, in his official capacity as Commissioners of the Idaho Public Utilities Commission; KRISTINE RAPER, in her official capacity as Commissioner of the
Idaho Public Utilities Commisson; ERIC ANDERSON, in his official capacity as
Commissioners of the Idaho Public Utilities Commisson, Defendants - Appellants.
and IDAHO POWER COMPANY, Intervenor – Defendant.
On Appeal from the United States District Court for the District of Idaho

NOTICE PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 12.1(a)

A. Dean Bennett
HOLLAND & HART LLP 800 West Main Street, Suite 1750 Boise, ID 83702
[phone]
Attorneys for Plaintiffs-Appellees

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NOTICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12.1 - 2

Appellee Franklin Solar LLC (“Franklin Solar”), by and through its counsel
of record, hereby files this Notice Pursuant to Federal Rule of Appellate Procedure
12.1(a).
1. Franklin Solar filed in the United States District Court for the District
of Idaho an Unopposed Motion for Vacatur Due to Mootness Pursuant to Fed. R.
Civ. P. 60(b), and Request for Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1
(“Motion”).
2. The District Court issued the attached Memorandum Decision and
Order on Motion for Vacatur on May 5, 2020 (“Memorandum Decision”).
3. In the Memorandum Decision the District Court states that the Motion
raises a “substantial issue” under Fed. R. Civ. P. 62.1(a)(3). However, the District
Court also indicated that a “request for a finding of mootness and vacatur is best
raised with the court of appeals.” Memorandum Decision at 7.
4. This notice of the District Court’s statement of a “substantial issue” is
provided to the Circuit Clerk to satisfy the requirement of Fed. R. App. P. 12.1(a).
5. Franklin Solar acknowledges this Court has discretion to remand the
case to the District Court. But given the statements by the District Court, Franklin
Solar requests the Ninth Circuit not remand this case at this time.
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NOTICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12.1 - 3
14654896_v2
6. Franklin Solar anticipates that one or more of the parties to this appeal
will file a motion with this Court, prior to the merits briefing, to allow the Court to
render a decision on mootness and vacatur.
DATED this 15th day of May, 2020.

/s/ A. Dean Bennett
A. Dean Bennett
Holland & Hart LLP 800 West Main Street, Suite 1750 Boise, ID 83702 208-342-5000 Attorneys for Plaintiffs-Appellees CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 15th day of May, 2020, I electronically filed
the foregoing with the Clerk of the Court using the CM/ECF system which sent a
Notice of Electronic Filing to the following:
Peter J. Richardson [e-mail] Robert C. Huntley [e-mail] Brandon Karpen [e-mail] Edward Jewell [e-mail] Scott Zanzig [e-mail]
John P. Coyle [e-mail]
Steven B. Andersen [e-mail]
Christine R. Arnold [e-mail]
Donovan E. Walker [e-mail]
/s/ A. Dean Bennett A. Dean Bennett for Holland & Hart LLP
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MEMORANDUM DECISION AND ORDER – 1

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC,
FRANKLIN ENERGY STORAGE THREE
LLC, FRANKLIN ENERGY STORAGE
FOUR, LLC,

Plaintiffs,

vs.

PAUL KJELLANDER, KRISTINE RAPER, and
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,

Defendants,

and,

IDAHO POWER COMPANY,

Defendant-Intervenor.
Case No.: 1:18-cv-00236-REB

MEMORANDUM DECISION AND
ORDER ON MOTION FOR
VACATUR (DKT. 76)

Pending is Plaintiffs’ Motion for Vacatur Due to Mootness Pursuant to Fed. R. Civ. P.
60(b), and Request for Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1 (Dkt. 76). Defendants
and Defendant-Intervenor have each filed a Notice of Non-Opposition (Dkts. 78, 79). The Court
has considered the motion and supporting filings and now enters this Memorandum Decision and
Order.
BACKGROUND
This case and its underlying controversy arose from Plaintiffs’ plans to construct small
power production facilities utilizing batteries to store power from renewable energy sources and
then release such stored power to the power grid. The Plaintiffs certified in filings made with the
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MEMORANDUM DECISION AND ORDER – 2

Federal Energy Regulatory Commission (“FERC”) that the facilities are so-called “Qualifying
Facilities,” specifically “energy storage Qualifying Facilities.” Under the federal Public Utility
Regulatory Policies Act of 1978 (known as “PURPA”), a company producing power by
Qualifying Facilities is entitled to sell that power to an electric utility (here, Defendant-
Intervenor Idaho Power Company) and the electric utility is required to buy such power on
contract terms set by the state’s public utility commission (here, the Idaho Public Utilities
Commission, or the “IPUC”). PURPA divides jurisdictional authority over such transactions
between the federal agency and the state utility commissions and Plaintiffs alleged in their
Complaint that the Defendant IPUC Commissioners acted outside their jurisdictional authority
under PURPA by classifying Plaintiffs’ facilities; that is, by effectively deciding whether such
facilities were Qualifying Facilities by classifying such facilities differently than the “energy
storage Qualifying Facilities” classification described in Plaintiffs’ FERC filings.
In a Memorandum Decision and Order issued January 17, 2020 (Dkt. 62), the Court
agreed with the Plaintiffs that the IPUC Commissioners exceeded their jurisdictional authority
under PURPA and acted in violation of applicable federal law. The Court enjoined any attempt
by the Commissioners to enforce the Commissioners’ orders in which they acted in excess of
their jurisdiction and the Court further ordered the Commissioners to comply with the rulings set
out in the decision in any future proceedings of the IPUC involving Plaintiffs’ energy storage
facilities. A judgment (Dkt. 63) followed on January 24, 2020.
Although the precise trail of ownership of the Plaintiff entities is not described in the
motion papers, a significant portion of that trail is identified – specifically, that on February 13,
2020 a company by the name of Duke Energy Renewables Solar, LLC, a subsidiary of Duke
Energy Corporation (“Duke Energy Renewables”) and a company named Franklin Solar LLC
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MEMORANDUM DECISION AND ORDER – 3

“consummated a purchase and sale transaction” by which Duke Energy Renewables “acquired
… all of the equity interest in Franklin Solar LLC.” Parrett Decl. ¶ 2 (Dkt. 76-2).
The day after, February 14, 2020, Defendants and Defendant-Intervenor each filed a
Notice of Appeal (Dkts. 66, 67).
On March 31, 2020, Plaintiffs filed their motion for vacatur, followed the next day by
filings of notices of non-opposition.
As noted in the Court’s January 17, 2020 decision, Plaintiffs had previously filed a
“notice of Merger and Name Change and Supplemented Corporate Disclosure Statement
Supplement” (Dkt. 61) indicating that “[o]n April 24,2019, each of the Plaintiff LLCs were
merged into a newly created LLC known as the Franklin Solar LLC, an ldaho limited liability
company.” The Court, however, continues to refer to Plaintiffs as they were constituted prior to
the merger.
Consistent with Plaintiffs’ representation of the merger, the business records of the Idaho
Secretary of State show that the four plaintiff companies – Franklin Energy Storage One LLC,
Franklin Energy Storage Two LLC, Franklin Energy Storage Three LLC, and Franklin Energy
Storage Four LLC – were merged into a single entity named Franklin Solar LLC on April 24,
2019.1 Those records also reflect a change of business mailing address for Franklin Solar LLC
on February 14, 2020, from Idaho to an address in Charlotte, North Carolina, along with an
annual report for Franklin Solar LLC filed on May 4, 2020 which shows, among other things,
that Duke Energy Renewables Solar, LLC is the sole Member of Franklin Solar, LLC.

1 The original entities and the new entity are all Idaho limited liability companies. The
information concerning this merger and the information regarding Duke Energy Renewables
interest in Franklin Solar LLC were found in the online business records of the Idaho Secretary
of State, of which the Court takes judicial notice pursuant to F.R.E. 201(b)(2) and (c)(1).

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MEMORANDUM DECISION AND ORDER – 4

There has been no substitution of parties, but a substitution is not required by Federal
Rule of Civil Procedure 25.2
Plaintiffs, now under the new ownership of Duke Energy Renewables, ask that the case
be dismissed and the Court’s judgment in favor of Plaintiffs be vacated, for the reason that there
is no longer a live case or controversy between the parties so the appellate court lacks subject
matter jurisdiction to adjudicate the pending appeals. Plaintiffs state that the new owner of
Franklin Solar LLC does not intend to develop the previously proposed facilities as QFs and has
withdrawn each of the Forms 556 previously filed with FERC, the contents of which had
described (and self-certified as Qualifying Facilities) the battery storage facilities which are at
issue in this case.
These factual contentions are supported by a declaration of Robert Parrett, a managing
director of Duke Energy Renewables.
LEGAL STANDARDS
Upon “just terms, the court may relieve a party ... from a final judgment, order, or
proceeding” if it “(5) ... is no longer equitable; or (6) any other reason that justifies relief.” Fed.
R. Civ. P. 60(b)(5), (6). Rule 60(b) “does not particularize the factors that justify relief; [instead]
it provides courts with authority adequate to enable them to vacate judgments whenever such
action is appropriate to accomplish justice.” United States v. Washington, 98 F.3d 1159, 1163
(9th Cir. 1996) (internal citation and quotation marks omitted). Rule 60(b) is, however, applied
only in “extraordinary circumstances.” Id.

2 Subsection (c) of the rule, entitled “Transfer of Interest,” provides: “If an interest is
transferred, the action may be continued by or against the original party unless the court , on
motion, orders the transferee to be substituted in the action or joined with the original party. . . .”
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MEMORANDUM DECISION AND ORDER – 5

As Plaintiffs note, the pending appeal in this case deprives this Court of jurisdiction to
grant a motion for vacatur. However, Plaintiffs seek “an indicative ruling under Federal Rule of
Civil Procedure 62.1 that [the district court] would grant Plaintiff’s vacatur motion under Federal
Rule of Civil Procedure 60(b)” if the Ninth Circuit Court of Appeals were to remand for that
purpose. Rule 62.1(a) provides that “[i]f a timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been docketed and is pending, the court may: (1)
defer considering the motion; (2) deny the motion; or (3) state either that it would grant the
motion if the court of appeals remands for that purpose or that the motion raises a substantial
issue.” Thus, this Court has the discretionary authority – but not the obligation – to grant the
relief Plaintiffs seek.
If the district court states it would grant the motion or that the motion raises a substantial
issue, “[t]he movant must promptly notify the circuit clerk under Federal Rule of Appellate
Procedure 12.1.” Fed. R. Civ. P. 62.1(b). The district court is not bound to grant the motion
after stating that it raises a substantial issue. Fed. R. Civ. P. 62.1 advisory committee’s note to
2009 amendment.
DISCUSSION
Plaintiffs contend that the “established practice” in similar cases is to vacate the prior
decision subject to review when a case is mooted while an appeal remains pending. There is an
exception when the facts suggest “intentional mooting” by an appellant. Plaintiffs argue there is
no such intention here; rather they contend mootness exists because of actions taken independent
of the case, specifically, the acquisition of Plaintiffs by Duke Energy Renewables.
It is unusual for the prevailing party at the trial level to seek dismissal and to have the
judgment entered in its favor vacated, upon an allegation that there is no longer a live
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MEMORANDUM DECISION AND ORDER – 6

controversy. Not surprisingly, there is no opposition, for – if granted – the request for dismissal
and vacatur would undo the judgment, leave undecided the controversy, and spare both the
expense of an appeal and the risk of having the judgment affirmed on appeal.
But there is an additional layer of the unusual. The successor-in-interest to the Plaintiffs,
who is the entity now seeking dismissal and vacatur, is a subsidiary of Duke Energy Corporation
which is one of the country’s largest electric utility companies.3 Duke Energy Corporation (as
with the Defendant-Intervenor Idaho Power Company) generally occupies the other side of the
PURPA “qualifying facility” equation than that occupied by Plaintiffs at the time the lawsuit was
filed, and at the time the Court issued its decision.
In evaluating these considerations, the Court finds that under Rule 62.1(a)(3) the motion
raises a substantial issue. However, the ownership change described above is a circumstance that
calls for further examination on a more fully developed record. Only after considering such a
fuller record would the Court be able to say whether it would deny or grant the motion for
vacatur because the facts and the argument must present an “extraordinary circumstance.”
In reaching this conclusion, the Court observes that none of the cases relied upon by
Plaintiffs involves a district court vacating its own judgment due to mootness that arises while an
appeal is pending and without the appellate court weighing in. See Alvarez v. Smith, 558 U.S. 87
(2009); Camreta v. Greene, 563 U.S. 692 (2011); Funbus Systems, Inc. v. State of Cal. Public
Utilities Comm’n, 801 F.2d 1120 (9th Cir. 1986); Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995);

3 The company is self-described in a recent press release: “Duke Energy (NYSE: DUK),
a Fortune 150 company headquartered in Charlotte, N.C., is one of the largest energy holding
companies in the U.S. It employs 30,000 people and has an electric generating capacity of
51,000 megawatts through its regulated utilities, and 3,000 megawatts through its nonregulated
Duke Energy Renewables unit.” See https://news.duke-energy.com/releases/duke-energy-to-
announce-first-quarter-2020-financial-results-on-may-12, accessed May 4, 2020.
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MEMORANDUM DECISION AND ORDER – 7

Public Utilities Comm’n of State of Cal. v. F.E.R.C., 100 F.3d 1451 (9th Cir. 1996); see also New
York State Rifle & Pistol Association Inc. v. City of New York, 590 U.S. ____ (2020) (“[A]s we
stated in Lewis v. Continental Bank Corp., 494 U.S. 472, 482-483 (1990): “Our ordinary practice
in disposing of a case that has become moot on appeal is to vacate the judgment with directions
to dismiss. See, e.g., Deakins v. Monaghan, 484 U.S. at 204; United States v. Munsingwear, Inc.,
340 U.S. 36, 39–40 (1950).” The Court also has found no case where a district court issued a
Rule 62.1 indicative ruling saying it would grant a Rule 60(b) motion for vacatur based on
mootness stemming from events occurring after the appeal is filed.
For these reasons, an indicative ruling would be imprudent. Instead, the request for a
finding of mootness and vacatur is best raised with the court of appeals because the events
alleged to have resulted in mootness occurred after this Court issued its decision and judgment
and because the current record leaves questions about whether this case presents an
“extraordinary circumstance” justifying vacatur. Obviously, if the circuit court rules that
jurisdiction is lacking because of mootness and remands the matter back to this Court for further
action consistent with its order of remand, then this Court will comply with that directive.
CONCLUSION
Based on the foregoing, the Court hereby DECLINES to state that it would grant
Plaintiffs’ Motion for Vacatur Due to Mootness Pursuant to Fed. R. Civ. P. 60(b) (Dkt. 76). The
Court does state, however, that the motion raises a substantial issue under Rule 62.1(a)(3).
IT IS SO ORDERED.
DATED: May 5, 2020.

_____________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judgep
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