20110830Opposition to Motion.pdf

PETER l. RICHARDSON (lSB # 3195)
MOLLY O'LEARY (ISB # 4996)
Richardson & O'Leary, PLLC
515 North 27th Street
P.O. Box 7218
Boise, Idaho 83707
Telephone: [phone]
Fax: [phone]
RECEIVED
2011 AUG 30 PM 3: 51
Attorneys for Glenns Ferry Cogeneration Partners, Ltd.
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IDAHO POWER COMPANY,
Respondent.
)
) CASE NO. IPC-E-08-20
)
) GLENNS FERRY COGENERATION
) PARTNERS, LTD'S OPPOSITION TO
) IDAHO POWER COMPANY'S MOTION
) TO DISMISS WITHOUT PRElUDICE
)
)
)
)
Complainant
vs.
GLENNS FERRY COGENERATION
PARTNERS, LTD, a Colorado limited
partnership,
COMES NOW, Glenns Ferry Cogeneration Partners, Ltd. ("Respondent" I"Glenns
Ferry"), by and through undersigned counsel, and fies this objection to Idaho Power
Companýs Motion to Dismiss Without Prejudice, pursuant to Rule 57.03 and Rule 256.04
of the Idaho Public Utilties Commission's Rules of Procedure.
BACKGROUND
On October 16, 2008, Idaho Power Company fied a "Petition for Declaratory Order
and Formal Complaint for Breach of Contract" (herein "Complaint1 with this Commission.
In its Complaint, Idaho Power makes certain factual allegations and concludes with a Prayer
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 1
for Relief in which this Commission is asked to adjudicate whether or not a certain contract
has been breached and to further adjudicate that Idaho Power is entitled to an award of
damages as a remedy for said alleged breach of contract. A summons was issued by the
Commission on October 21 2008, notifying Glenns Ferry that it had 21 days to respond to
Idaho Power s complaint. Idaho Power immediately began filing discovery requests. On
November 10, 2008, Glenns Ferry filed with the Commission a Motion to Dismiss for Lack
of Subject Matter jurisdiction. Subsequently, on November 14, 2008, Glenns Ferry fied a
Motion to Stay Discovery. On November 24, 2008, the parties fied a joint motion
regarding scheduling and discovery.
On january 13, 2009, Idaho Power fied (1) a brief opposing Glenns Ferrýs Motion to
Dismiss and (2) a Request for Oral Argument on the limited issue of whether the
Commission has subject matter jurisdiction over the Complaint. Glenns Ferry did not
oppose Idaho Power's motion for Oral Argument. The Commission found that "oral
argument may be helpful in clarifying the issues that have been raised by the parties in
Glenns Ferrýs Motion to Dismiss and responses thereto," and set oral argument on the
limited question of its breach of contract subject matter jurisdiction for Tuesday, March 3,
2009. IPC-E-08-20 Notice of Hearing, 02.12.09.
Since that time, Glenns Ferry has engaged in good faith settlement negotiations with
Idaho Power to no avail, despite repeated efforts and numerous proposals designed to make
Idaho Power ratepayers whole without inflicting an unjustifiable penalty on Respondent. At
the outset of negotiations, Glenns Ferry advised Commission Staff of such negotiations and
no decision on the merits of Respondents Motion to Dismiss for Lack of Subject Matter
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 2
jurisdiction has been rendered. Glenns Ferry continued to periodically apprise Commission
Staff of its ongoing settlement efforts during the ensuing two-plus years.
On june 23rd of this year, Glenns Ferry contacted Commission Staff and requested
that the Commission proceed with rendering its decision based on the record before it, due
to the failed negotiation efforts. Respondent likewise notified counsel for Complainant that
same day of its request to the Commission.
Nearly two months later, Idaho Power fied its belated Motion to dismiss its own
Complaint, without prejudice.
ARGUMENT
While Glenns Ferry agrees that Idaho Power's Complaint should be dismissed, it
should be dismissed on the merits with prejudice.
A Motion to Dismiss without prejudice cannot be granted where the party making
the motion has delayed resolution of the matter and where, among other things, the other
party has been prejudiced by such delay.
The two primary factors in determining whether a dismissal with prejudice is
appropriate are "a clear record of delay and ineffective lesser sanctions, which must be
bolstered by the presence of at least one "aggravating" factor, including: 1) delay resulting
from intentional conduct, 2) delay caused by the plaintiff personally, or 3) delay causing
prejudice to the defendant." Lee v. Nickerson, 146 Idaho 5, 189 P.3d 467, 471 (Idaho 2008);
Kugler v. Maguire, No. 36644, P. 3 (Idaho Court of Appeals, Nov. 4, 2010) citing Ashby v.
Western CounciL, Lumber Prod 8l Indus. Workers, 117 Idaho 684, 686-87, 791 P.2d 434,436-
37 (1990); see also Adams v. Reed, 138 Idaho 36, 39, 57 P.3d 505, 508 (Ct. App. 2002).
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 3
In the present case, all three of the alternate "aggravating factors" are present:
1. Prejudice to Respondent: Glenns Ferry has been prejudiced by Idaho Power's
conduct, which has resulted in unnecessary legal fees expended in fully
litigating the issue of the Commission's subject matter jurisdiction over Idaho
Power's breach of contract Complaint, not to mention travel and other costs
associated with the protracted settlement negotiations. This prejudice to
Glenns Ferry would be further exacerbated by the continued legal uncertinty
created by a dismissal of Idaho Power's Complaint without prejudice. In
addition, Glenns Ferry would be further prejudiced if it were to have to
expend additional resources at some point in the future re-arguing the very
issue already fully presented to the Commission for decision;
2. Delay caused by the Complainant: Instead of objecting to Glenns Ferrýs initial
Motion to Dismiss for lack of subjec matter jurisdiction, Idaho Power could
have withdrawn its Complaint more than two years ago and avoided wasting
the Commission's and Glenns Ferrýs time in the interim; and
3. Delay caused by intentional conduct: Idaho Power has steadfastly refused all of
Glenns Ferrýs good faith settlement offers and has, instead, engaged in delay
tactics such as throwing up red herring arguments regarding an irrelevant
change in ownership of Glenns Ferrýs owners during the two-plus years it has
dangled Glenns Ferrýs hopes of a business-to-business settlement on the line.
Glenns Ferry has been, and continues to be, the "Sellet' under the Firm
Energy Sales Agreement ("FESA'1 that is the subject of the parties' dispute.
Any change in the ownership of its owners is irrelevant and Idaho Power's
claims to the contrary are yet another example of its bad faith attempts to
delay resolution of the parties' dispute.
In addition, because of the Commission's specialized, albeit limited, jurisdiction
there is no option of lesser sanctions against Idaho Power (e.g., a Rule 11 sanction
against Idaho Power under the Idaho Rules of Civil Procedure, or an award of
attorney fees against Idaho Power) for proffering a frivolous argument regarding the
Commission's jurisdiction over a breach of contract claim that fles in the face of
long-standing Idaho Supreme Court precedent to the contrary, and then filing a
liN ever Mind" motion more than two years and untold dollars later.
The issue presented to the Commission by Idaho Power's Complaint and
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 4
Glenns Ferrýs Motion to Dismiss for lack of subject matter jurisdiction has been
fully briefed and argued to the Commission, and should be decided on the merits. To
do otherwise would be tantamount to approving Idaho Power's waste of the
Commission's and Glenns Ferrýs time and resources, and would serve to invite other
parties in the future to behave likewise. Given the Commission's and the State of
Idaho's limited resources, such a result should not be countenanced.
CONCLUSION
For the forgoing reasons, Glenns Ferry opposes Idaho Powets Motion to
Dismiss Without Prejudice and hereby renews its request that Idaho Power's breach of
contract Complaint be dismissed by the Commission for lack of subject matter
jurisdiction. .
DATED this 30th day of August, 2011.
Richardson & O'Leary, PLLC
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of August, 2011, I caused a true and
correct copy of the foregoing OPPOSITION TO MOTION TO DISMISS WITHOUT
PREJUDICE to be served by the method indicated below, and addressed to the following:
jean jewell
Secretary
Idaho Public Utilties Commission
472 W Washington Street
Boise ID 83702
lean.jewell (g puc.idaho.gov
( ) U.s. Mail, Postage Prepaid
(X) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(X) Electronic Mail
Kristine Sasser
Deputy Attorney General
Idaho Public Utilties Commission
472 W Washington Street
Boise ID 83702
Kris.sasser(g puc.idaho.gov
( ) U.s. Mail, Postage Prepaid
(X) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(X) Electronic Mail
Bruce C jones
jones & Schwartz PLLC
1673 N Shoreline Dr Ste 200 (83702)
PO Box 7808
Boise ID 83707-7808
bruce(g jonesandschwartzlaw.com
(X) U.s. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(X) Electronic Mail
Signed:Ch ÚJh\
Nina Curtis
GLENNS FERRY'S OPPOSITION TO IDAHO POWER'S
MOTION TO DISMISS WITHOUT PREJUDICE - 6