Osceola Arkansas, City of v. Entergy Arkansas Inc et al

Filing 23

ORDER denying as moot 3 Motion to Dismiss, 15 Motion to Remand, and 17 Motion to Strike. Signed by Chief Judge Brian S. Miller on 9/20/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CITY OF OSCEOLA, ARKANSAS
v.

PLAINTIFF

CASE NO. 3:13CV00011 BSM

ENTERGY ARKANSAS, INC. et al.

DEFENDANTS
ORDER

The motions of plaintiff Osceola, Arkansas (“the City”) to remand [Doc. No. 15] and
to strike [Doc. No. 17] and of defendants Entergy Arkansas, Inc. and Entergy Services, Inc.
(collectively “Entergy”) to dismiss [Doc. No. 3] are denied..
I. BACKGROUND
The City filed this case against Entergy in the Mississippi County Circuit Court,
claiming that Entergy breached the parties’ electric utility service agreement by wrongfully
charging certain costs to the City. The City seeks a refund from Entergy based on a ruling
by the Federal Energy Regulatory Commission (“FERC”) in a similar case in Missouri.
Entergy removed the case and now moves to dismiss, arguing the City’s claim is preempted
by the Federal Power Act (“FPA”) and barred by FERC’s exclusive jurisdiction. The City
objects to dismissal and seeks remand, arguing this a common law breach of contract case.

II. LEGAL STANDARD
Federal court jurisdiction is narrow and is therefore a threshold issue. Godfrey v.
Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir.1998). A party seeking removal and
opposing remand must establish federal jurisdiction. In re Bus. Men's Assurance Co. of Am.,

992 F.2d 181, 183 (8th Cir. 1993). Doubts about federal jurisdiction, however, are resolved
in favor of remand. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).

A case can be removed to federal court when it could have been filed there originally. Junk
v. Terminix Int’l Co., 628 F.3d 439, 444 (8th Cir. 2010). Removal based on federal question
jurisdiction is appropriate only when a federal question is presented on the face of a properly
pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Dismissal is proper when a complaint fails to state a claim upon which relief can be
granted. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Fed.
R. Civ. P. 12(b)(6)). Although the City is not required to prove specific facts in support of
the allegations in its complaint, the complaint must include sufficient information to provide
the grounds upon which its claims rest, and to raise a right to relief above a speculative level.
Id. Further, exhibits attached to the pleadings can properly be considered in addressing a
motion to dismiss. Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011).
III. DISCUSSION
The City’s motion to remand [Doc. No. 15] is denied, Entergy’s motion to dismiss
[Doc. No. 3] is denied, and the City’s motion to strike [Doc. No. 17] is denied as moot.
A.

Remand
The City’s motion to remand is denied because its contract claim is so interwoven

with federal law that federal question jurisdiction exists. The City alleges its case is identical
to one that was adjudicated before the FERC, and that the City is owed the same recovery
as the Missouri utility in the other case. Pl.’s Compl. [Doc. No. 2] at Pg. 1, ¶ 2 . The City
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also “seeks separate enforcement and award of damages as is permissible under the Federal
Power Act . . . and decisions of FERC.” Id. at ¶ 1. While framed as a breach of contract
case, the success of the City’s claim turns on federal law. Thus, the motion to remand is
denied.
B.

Motion to Dismiss
Entergy’s motion to dismiss is denied and the City’s motion to strike is denied as

moot. The City relies on a recent FERC determination for its position that Entergy cannot
pass on certain costs to customers unless they are contractually enumerated. Opinion 505-A,
139 FERC ¶ 61,103, at ¶ 37 (May 7, 2012). The City alleges it was wrongfully charged costs
in violation of the FERC decision. Pl.’s Compl. [Doc. No. 2] at Pg. 8, ¶ 22. The City has
met its burden of stating a claim upon which relief can be granted. Accordingly, Entergy’s
motion to dismiss is denied and the City’s motion to strike Entergy’s reply is denied as moot.
IV. CONCLUSION
Accordingly, the City’s motion to remand [Doc. No. 15] is denied, Entergy’s motion
to dismiss [Doc. No. 3] is denied, and the City’s motion to strike [Doc. No. 17] is denied as
moot.
IT IS SO ORDERED this 20th day of September 2013.

________________________________
UNITED STATES DISTRICT JUDGE

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