Douglas Energy Relief Association et al v. City of Douglas, Georgia et al

Filing 59

ORDER denying 28 Defendants' Motion for Summary Judgment. Plaintiff is ordered to file supplemental briefing within twenty days. Defendants are ordered to respond to Plaintiff's supplemental briefing within thirty days of the date Plaintiff files its briefing. Signed by Chief Judge Lisa G. Wood on 8/31/2012. (csr)

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DOUGLAS ENERGY RELIEF
ASSOCIATIONS (DERA), et. al.,
Plaintiff,
vs.

CV 510-083

CITY OF DOUGLAS, GEORGIA,
DENNIS JOSEY, RONALD L.
HENDERSON, TONY PAULK, JACKIE
WILSON, OLIVIA PEARSON, ROBERT
MOORE, JR., PAUL ELLIOTT, JOHNNY
LEE ROPER, SR., and OSCAR STREET
Defendants.
ORDER
Plaintiff Douglas Energy Relief Associations' ("Plaintiff"
or "DERA") Complaint seeks redress for Defendants' alleged
artificial inflation of electricity usage and/or rates for
African-American electricity consumers. Compl., Dkt. No. 1.
The caption of Plaintiff's Complaint lists the following
causes of action:
1)
2)
3)
4)
5)

Fraud, Misrepresentation and conspiracy
Violation of Civil Rights
Violation of Antitrust Laws
Breach of Contract and Bad Faith Dealings
Tortious Breach of Implied Covenant of Good Faith
and Fair Dealings
6) Violations of Title VIII Fair Housing Laws

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7) Gross Negligence
8) Intentional Infliction of Mental and Emotional
Distress
9) Request for Judicial Scrutiny
Compi. 1. Later in the Complaint, Plaintiff lists the following
legal bases for recovery:
1) 42 U.S.C. §1983 Civil Rights Act of 1871, alleging
that the 14th Amendment's Equal Protection Clause
and Due Process of Law was violated by Defendants'
unconstitutional acts adversely affecting
Plaintiffs' Civil Rights.
2) Title VIII of the Civil Rights Act of 1968, and as
amended and any rules and regulations pursuant
thereto and specifically discrimination in the
terms, conditions and privileges §804(B) of the HUD
Regulations 24 CFR Part 100, based on race/black
and sex/female and redlining of the Black
Community.
3) Title 42 U.S.C. §1981 prohibits racial
discrimination in contracts and bad faith dealings
and provides for equal rights under the law.
4) Anti-trust laws, Sherman Act 15 U.S.C. §1-7,
passed in 1890, Clayton Act 15 U.S.C. §12-27, and
the Federal Trade Commission Act 15 U.S.C. §41-58,
passed in 1914. Violations of anti-trust laws in
restraint of trade and unfair dealings.
5) Violations under the 1866 Civil Rights Act and U.S.
Constitution 14 th Amendment Equal Protection
Clause.
6) Fraud and misrepresentation under Statute of Frauds
U.C.C. §2-201, The Sale of Goods Section and the
Uniform Sales Act.
7) Breach of Contracts and Bad Faith Dealings
concerning discrimination dealing with Article 1,
Section 102 (BB) of the Municipal Electric
Authority of Georgia's (M.E.A.G.) Contract with the
City of Douglas, Georgia, regarding "Prudent
Utility Practice." Such contract articles with the
city were intended for the benefits of city
residential utility consumers as "Beneficiaries"
and for their protection against the city's Unfair
Business Practices and Dealings which also is
contrary to the city's motto: "Working together to
serve you better."
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8) Georgia Code Ann. §46-2-90 deals with Liability for
Unlawful Acts.
9)
A) CASE LAW STATES: A city operating a legalized
monopoly cannot make an unfair discrimination.
American Aniline Products, Inc. vs. City of Lock
Haven 288 PA 420, 135A 726, 50 A.L.R. 121.
B) OWEN VS. THE CITY OF INDEPENDENCE. Sup. Ct. of
U.S. 445 U.S. 622 (1980) "The innocent
individual who is harmed by an abuse of
governmental authority is assured that he will
be compensated for his injury."
C) A publicly owned utility engaged in the service
of providing gas and electricity to inhabitants
is a "Proprietary Function." ORSI Public Utility
District, 196 CA 43, 57-58 235 P. 1004; City of
Pasadena vs. Railroad Comm., 183 CAL 526, 529,
192 P. 25, 10 A.L.R. 1425. Gleribrook Dev. Co.
vs. City of Brea cited as 61 Cal Reporter 189
states:
"In supplying water to its inhabitants, a
municipality acts in the same capacity as a
private corporation engaged in a similar
business and not in its Sovereign Role." See
also Nourse vs. City of Los Angeles, 25 CAL.
App 384, 385, 143 P. 801.
Defendants now move for summary judgment on Plaintiff's
claims. Not. Summ. J., Dkt. No. 28. Defendant's motion is
exceptionally vague. Defendants state generally that
"Plaintiffs have presented no evidence, and have not indicated
that any evidence exists which would support any of their claims
against Defendants." Not. Summ. J. 4. Aside from this
conclusion, Defendants' brief consists of a total two pages of
assertions and observations, addressing only some of Plaintiff's
claims. Defendants claim they are entitled to summary judgment
on Plaintiff's § 1983 claims because Plaintiff is unable to

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establish "state action" on the part of Defendants. Defendants
also argue that they are entitled to summary judgment on
Plaintiff's conspiracy claims because "a corporation cannot
conspire with itself." Mot. Summ. J. 2. Defendants implausibly
assert that these arguments dispose of all of Plaintiff's
claims.
Plaintiff's "Response to City Defendants' Motion for
Summary Judgment" is reciprocally ineffectual. Dkt. No. 34. It
appears from Plaintiff's Response that the single factual basis
for all of Plaintiff's claims is that Defendants overcharged
African-American residents for electrical power because of their
race. In its Response, Plaintiff points to electricity bills
which, arguably, could support the contention that some AfricanAmerican residents had higher electricity bills than nonAfrican-American residents.' However, Plaintiff has presented
absolutely no evidence that any disparity in electricity
expenses was because of the consumers' race. Instead, Plaintiff
relies on the fact that some disparity exists as evidence that
the disparity

is because

of the consumers' race. Plaintiff

refutes Defendants' alternative explanations of the disparity,
such as differences in individual home construction or usage
habits among individual consumers, but fails to provide any of
its own evidence. Evidence that Defendants overcharged African1 The amount of the disparity is unclear.
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Americans for electricity because of their race is essential to
Plaintiff's claims; evidence that there is a disparity is not
enough.
The Court is faced with a "shotgun" complaint, an anemic,
conclusory motion for summary judgment, and an unsupported,
unresponsive Response. The Eleventh Circuit has frequently
decried the costs and pitfalls of careless pleading. See, e.g.,
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 982-84
(11th Cir. 2008). Moreover, the Eleventh Circuit has recognized
the need for district courts to intervene in order to rein in
pleadings where the parties continually muddy the facts and law.
Id. The Court now follows the Eleventh Circuit's guidance, and
provides the following instructions in order to focus this
amorphous dispute.
Counsel for both parties are ordered to make their
positions clear to the Court. Plaintiff is ordered to file
supplemental briefing within twenty (20) days. In that
briefing, Plaintiff must clearly and concisely explain the
causes of action it intends to maintain against each named
defendant. Plaintiff must point to exactly what evidence
supports its position and must accurately cite to the record
when referring to that evidence.
Defendants are ordered to respond to Plaintiff's
supplemental briefing within thirty (30) days of the date

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Plaintiff files its briefing. In their response, Defendants
must assert all arguments it intends to assert in favor of
summary judgment, including any arguments related to the
applicable statutes of limitations. Defendants must be clear in
responding to each claim that Plaintiff asserts, to the extent
that Defendant seeks summary judgment on the individual claims.
Defendants' arguments must be clearly delineated. Where the
Defendants rely on evidence to support their position,
Defendants must accurately cite to the record.
The parties are advised that precision, clarity, and
brevity are virtues of legal drafting. Counsel should compose
their briefs accordingly.
For the reasons stated above, Defendants' motion for
summary judgment is DENIED, at this time.

SO ORDERED, this 31st day of August, 2012.

LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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