20110913Reply Brief in Support of Motion.PDF

Donovan E.Walker,ISB #5921
IDAHO POWER COMPANY
1221 W.Idaho Street [83702]
P.O.Box 70
Boise,Idaho 83707
Telephone:[phone]
Facsimile:[phone]
Email:[e-mail]
Bruce C.Jones,ISB #3 177
Joy M.Bingham,ISB #7887
JONES &SWARTZ PLLC
1673 W.Shoreline Drive,Suite 200 [83702]
P.O.Box 7808
Boise,Idaho 83707-7808
Telephone:[phone]
Facsimile:[phone]
E-mail:brucejonesandswartzlaw.com
joyjonesandswartzlaw.com
Attorneys for Idaho Power Company
IDAHO POWER COMPANY,
vs.
Complainant,
GLENNS FERRY COGENERATION
PARTNERS,LTD.,a Colorado limited
partnership,
I ‘“2LII._‘D
IDAHO POWER COMPANY’S REPLY
BRIEF IN SUPPORT OF MOTION TO
DISMISS WITHOUT PREJUDICE
Respondent.
Complainant Idaho Power Company (“Idaho Power”),by and through counsel Donovan E.
Walker,of Idaho Power Company,and Bruce C.Jones,of the firm Jones &Swartz PLLC,hereby
replies to Respondent Glenns Ferry Cogeneration Partners,Ltd.’s (“Glenns Ferry”)opposition to
Idaho Power’s Motion to Dismiss Without Prejudice (“Motion to Dismiss”).
IDAHO POWER COMPANY’S REPLY BRIEF iN SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -1
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Case No.IPC-E-08-20
INTRODUCTION
Glenns Ferry asserts that Idaho Power’s Petition for Declaratory Order and Formal Claim for
Breach of Contract (Petition)should be dismissed with prejudice rather than without prejudice as
requested by Idaho Power.Glenns Ferry’s opposition is without basis,either in fact or law.Glerins
Ferry’s assertions that Idaho Power has acted in bad faith are both without evidentiary support in the
record,and are factually inaccurate.
In addition,it was Glenns Ferry that filed a motion to dismiss the Petition arguing that the
Commission lacked subject matter jurisdiction to hear the claims presented therein.It is both by
logic and black letter law that ifa tribunal lacks subject matterjurisdiction to hear a dispute,it lacks
the jurisdiction to adjudicate the subject matter ofthe litigation on the merits.Thus,the action must
be dismissed without prejudice.Even ifthe Commission were to rule in Glemis Ferry’s favor on its
Motion to Dismiss,the appropriate remedy would still be to dismiss the Petition without prejudice,
the same remedy that Idaho Power seeks in its Motion to Dismiss.
ARGUMENT
Glenns Ferry’s recitation of the procedural history of this matter is generally accurate and
confirms that Idaho Power has diligently pursued its Petition,including responding to Glenns Ferry’s
Motion to Dismiss.The Commission heard oral argument on the Motion to Dismiss on March 3,
2009,and the Motion has been fully submitted to the Commission as of that date.Glenns Ferry is
also accurate in its assertion that the parties have engaged in settlement discussions since the date of
oral argument,and that those settlement negotiations have been unsuccessful.
Idaho Power strongly disagrees with Glenns Ferry’s characterization of the settlement
negotiations,but declines to engage in tit-for-tat complaint about the unreasonable conduct of
Glenns Ferry during the negotiations.First,there is nothing to respond to other than bare assertions,
IDAHO POWER COMPANY’S REPLY BRIEF 1N SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -2
without any accompanying affidavit or other evidentiary support,that Idaho Power engaged in “bad
faith”and “throwing up red herring arguments.”Second,the pejorative and histrionic
characterizations ofthe settlement negotiations set forth in Glenns Ferry’s response serve as a telling
illustration of the difficulties of negotiating with Glenns Ferry.Third,Glenns Ferry has not,and
cannot,point to any legal authority authorizing sanctions against a party for failure to settle a case,
much less the most severe sanction of dismissal with prejudice.
The cases Glenns Ferry cites in its opposition brief discuss dismissal with prejudice as a
sanction for egregious failures to comply with specific discovery orders.Ashby v.Western Council,
Lumber Prod.and Indus.Workers,117 Idaho 684,686-87,791 P.2d 434,436-37 (1990);Lee v.
Nickerson,146 Idaho 5,9-10,189 P.3d 467,471-72 (2008).Even reading the cases at their most
expansive,the cases cited are irrelevant to the present dispute because the opposition to the Motion
to Dismiss has nothing to do with a discovery dispute between the parties,nor any particular
violation of procedural rules.
Glenns Ferry also complains that Idaho Power has waited too long to request the dismissal of
its Petition.This claim is also without merit.(Opp’n Br.4)While a plaintiff does have a duty to
prosecute his or her case diligently,Bartlett v.Peak,107 Idaho 284,285,688 P.2d 1189,1190
(1984),the present delay has not resulted from a failure of diligence on Idaho Power’s part.Idaho
Power timely responded to Glenns Ferry’s Motion to Dismiss,and the matter has been filly
submitted to the Commission since March 3,2009.Idaho Power cannot be accused ofdelay where it
timely responded to the Motion to Dismiss and no further action could be taken by Idaho Power until
the pending motion was decided.Glenns Ferry acknowledges that it “advised Commission Staffof
such negotiations.”(Opp’n Br.2)Glenns Ferry could have informed the Commission Staff at any
IDAHO POWER COMPANY’S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -3
time during the last two years that it could not reach a settlement with Idaho Power and requested a
ruling on its motion.
Perhaps of greater importance,an additional dispute has arisen between the parties since the
date of oral argument.In some fashion,the details ofwhich are still unknown to Idaho Power,there
has been a change in ownership in Glenns Ferry.Glenns Ferry acknowledges the change of
ownership,but deems it “irrelevant”and a “red herring.”(Opp’n Br.4)While Glenns Ferry may
deem the change of ownership interest irrelevant,the Firm Energy Sales Agreement provides
otherwise:
This Agreement and all of the terms and provisions hereof shall be
binding upon and inure to the benefit of the respective successors and
assigns of the Parties hereto,except that no transfer ofSeller rights
or obligations under this Agreement by merger or otherwise nor any
assignment hereofby Seller shall become effective without the written
consent ofIdaho Power beingfirst obtained.Such consent shall not
be unreasonably withheld.
Firm Energy Sales Agreement Art.XXIV (emphasis added).(The Firm Energy Sales Agreement is
attached as Exhibit 1 to Idaho Power’s Petition for Declaratory Order and Formal Complaint for
Breach of Contract.)
Article XXIV mandates that any transfer ofthe Seller’s (Glenn Ferry’s)interest by “merger or
otherwise”be approved by Idaho Power in writing in advance oftransfer.Not only did Glenns Ferry
fail to seek Idaho Power’s written approval of the change of ownership,it has even refused to
provide the Purchase and Sale Agreement so that Idaho Power can evaluate whether the sale impacts
Glenns Ferry’s obligations under the Firm Energy Sales Agreement.(See May 19,2011 letter from
Randy C.Allphin,Idaho Power Senior Energy Contract Coordinator,to Mr.Chuck Walker of
Glenns Ferry,attached as Exhibit A to the accompanying Affidavit of Counsel,confirming Glenns
Ferry’s refusal to provide Idaho Power with a copy ofthe Purchase and Sale Agreement.)Given this
IDAHO POWER COMPANY’S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -4
new contractual dispute between the parties,Idaho Power has simply chosen to pursue its remedies
in a different forum,and hence filed its Motion to Dismiss.
Finally,even ifthe Commission were to rule on Glenns Ferry’s pending Motion to Dismiss in
Glenns Ferry’s favor,the Commission would be divested of authority to rule on the merits ofIdaho
Power’s Petition,leaving a dismissal without prejudice as the only appropriate remedy.If,as
Glenns Ferry claims,the Commission is without subject matterjurisdiction over this matter,then it is
also without power to rule on whether Idaho Power is able to present the matter to a body with
proper jurisdiction.See Frigard v.United States,862 F.2d 201,204 (9th Cir.1988),cert.denied,
490 U.S.1098 (1989)(“Ordinarily,a case dismissed for lack of subject matterjurisdiction should be
dismissed without prejudice so that a plaintiff may reassert his claims in a competent court.”).
Where the Commission is withoutjurisdiction,it is improper to make any order in the cause except
to dismiss the suit.Dismissal for lack of subject matterjurisdiction is not a decision on the merits.
Costello v.United States,365 U.S.265,285-86 (1961).
In short,it is Glenns Ferry that is wasting time and money by asking the Commission to rule
on either the pending Motion to Dismiss or the merits of Idaho Power’s Petition,where dismissal
without prejudice is the only appropriate remedy.
DATED this 13th day of September,2011.
JONES &SWARTZ PLLC
By_________________________
BRucE C.JoNEs
Joy M.BiNGHIM
DoNovAN E.WALKER
IDAHO POWER COMPANY
Counselfor Idaho Power Company
IDAHO POWER COMPANY’S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of September,2011,a true and correct copy of
IDAHO PowER CoMPANY’s REPLY BRIEF IN SuPPoRT OF MoTIoN TO DIsMIss WIThouT PJuI)IcE
was served upon all parties of record in this proceeding,by the method indicated,addressed as
follows:
Kristine Sasser
Deputy Attorney General
IDAHO PuBLIc UTIUTIEs CoMMIssIoN
472 W.Washington [83702]
P.O.Box 83720
Boise,ID 83 720-0074
Commission Staff
Peter J.Richardson
Molly O’Leary
RICHARDSON &O’LEARY PLLC
515 N.27th Street [83702]
P.O.Box 7218
Boise,ID 83707
Counselfor
Glenns Ferry Cogeneration Partners,Ltd.
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BRUCE C.JONEs /
IDAHO POWER COMPANY’S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS WITHOUT PREJUDICE -6