20181026IPUC Motion to Dismiss or Cross MSJ 42.pdf

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
CROSS-MOTION FOR SUMMARY JUDGMENT -1-

LAWRENCE G. WASDEN
IDAHO ATTORNEY GENERAL

Brandon Karpen, ISB No. 7956
Edith Pacillo, ISB No. 5430
Deputy Attorneys General, Idaho Public Utilities Commission
472 West Washington
P.O. Box 83720
Boise, Idaho 83720-0074
Telephone No. [phone]
Facsimile No. [phone]
[e-mail]

Scott Zanzig, ISB No. 9361
Deputy Attorney General, Civil Litigation Division
Office of the Attorney General
945 West Jefferson Street, 2nd Floor
P.O. Box 83720
Boise, Idaho 83720-0010
Telephone No. [phone]
Facsimile No. [phone]
[e-mail]

Attorneys for Defendants

UNITED STATES DISTRICT COURT
FOR THE 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.

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

DEFENDANTS’ MOTION

Case 1:18-cv-00236-REB Document 42 Filed 10/26/18 Page 1 of 3

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
CROSS-MOTION FOR SUMMARY JUDGMENT -2-

DEFENDANTS’ MOTION TO DISMISS AND, IN THE ALTERNATIVE, CROSS-
MOTION FOR SUMMARY JUDGMENT

Defendants Paul Kjellander, Kristine Raper, and Eric Anderson, in their official
capacities as Commissioners of the Idaho Public Utilities Commission (collectively
“Defendants”), respectfully move the Court, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, to dismiss the First Amended Complaint (“Complaint”) of Franklin Energy
Storage One through Four (collectively, “Plaintiffs”) with prejudice. Alternatively, Defendants
respectfully move the Court, pursuant to Rule 56(a) for summary judgment.
As grounds for their motion, Defendants state that (1) this Court lacks subject matter
jurisdiction; (2) Plaintiffs’ Complaint lacks facial plausibility; (3) Plaintiffs’ claims are time-
barred; and (4) the First Amended Complaint is barred by the Eleventh Amendment.
WHEREFORE, and for the reasons set forth in the accompanying Memorandum in
Support, Defendants request that the Court dismiss Plaintiffs’ First Amended Complaint with
prejudice.

DATED this 26th day of October, 2018.

OFFICE OF THE ATTORNEY GENERAL

/s/ Brandon Karpen_______
Brandon Karpen
Deputy Attorney General
Attorney for Defendants

Case 1:18-cv-00236-REB Document 42 Filed 10/26/18 Page 2 of 3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 26th day of October, 2018, I filed the foregoing
electronically through the CM/ECF system, which caused the following parties or counsel to be
served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Peter Richardson, Attorney for Plaintiffs
(email: [e-mail])

Robert C. Huntley, Attorney for Plaintiffs
(email: [e-mail])

Steven B. Anderson, Attorney for Intervenor Idaho Power Company
(email: [e-mail])

Wade L. Woodard, Attorney for Intervenor Idaho Power Company
(email: [e-mail])

RESPECTFULLY SUBMITTED this 26th day of October, 2018.

/s/ Brandon Karpen____________________
Brandon Karpen

Case 1:18-cv-00236-REB Document 42 Filed 10/26/18 Page 3 of 3