AEP GENERATING COMPANY v. LAWRENCEBURG MUNICIPAL UTILITIES et al

Filing 69

ORDER. The Court GRANTS AEP's Motion to Deny or Defer Consideration pursuant to Federal Rule of Civil Procedure 56(d), [Filing No. 47], and DENIES WITHOUT PREJUDICE IMPA's Motion for Summary Judgment, [Filing No. 42]. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 9/9/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AEP GENERATING COMPANY,
Plaintiff,
vs.
LAWRENCEBURG MUNICIPAL
UTILITIES,
INDIANA MUNICIPAL POWER AGENCY,
Defendants.

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No. 1:15-cv-00275-JMS-DKL

ORDER
On July 10, 2015, Defendant Indiana Municipal Power Agency (“IMPA”) filed a Motion
for Summary Judgment on all of Plaintiff AEP Generating Company’s (“AEP”) claims against
IMPA in this utilities dispute. [Filing No. 42.] IMPA contends that it “was apparently named as
a party to this lawsuit because it is a party to the contract [at issue]” but that AEP seeks damages
“based on alleged conduct that IMPA could not and did not commit.” [Filing No. 43 at 1.] IMPA
contends that it is entitled to summary judgment because Defendant Lawrenceburg Municipal
Utilities (“LMU”), not IMPA, is solely responsible for selling electric power to and collecting
payment from AEP. [Filing No. 43 at 5.]
In response, AEP filed a Motion to Deny or Defer Consideration of IMPA’s summary
judgment motion pursuant to Federal Rule of Civil Procedure 56(d). [Filing No. 47.] AEP argues
that IMPA “profoundly oversimplifies this dispute” and downplays IMPA’s role as a party to the
contract at issue. [Filing No. 47 at 5-6.] AEP has filed an affidavit detailing various areas of
discovery that it contends are necessary for it to response to IMPA’s motion, including
·

Whether LMU really was the only billing entity, as IMPA contends;

·

How IMPA charged LMU for the underlying electrical services;

·

Whether LMU or IMPA retained AEP’s alleged overpayment;

·

The extent of IMPA’s contractually specified duties, [see, e.g., Filing No. 1-1 at 1
(“WHEREAS, operations with respect to the matters covered by this Agreement will
be managed and coordinated by IMPA”)];

·

IMPA’s role in meter reading;

·

IMPA’s role in negotiations related to the contract at issue, considering that AEP was
not an original party thereto.

[Filing No. 47 at 6-9; Filing No. 47-1.] AEP argues that it has diligently pursued discovery in this
action since the Case Management Plan was issued on June 3, 2015, which established a discovery
deadline of January 20, 2016. [Filing No. 47 at 9.] At the time AEP filed its Rule 56(d) motion,
IMPA had not yet responded to AEP’s discovery requests. [Filing No. 47 at 9-11.]
IMPA opposes AEP’s Rule 56(d) motion. [Filing No. 53.] It contends that it has now
responded to AEP’s discovery requests and that the categories of discovery that AEP identifies are
“nothing more than red herrings.” [Filing No. 53 at 2.] IMPA details why it does not believe that
AEP has identified any categories of discovery that create genuine issues of material fact. [Filing
No. 53 at 3-7.]
In the reply supporting its Rule 56(d) motion, AEP emphasizes that IMPA’s summary
judgment request is premature and that AEP is entitled to evaluate the discovery materials that
IMPA has produced, as well as conduct additional discovery as warranted based on IMPA’s
responses. [Filing No. 64.]
Federal Rule of Civil Procedure 56(d) “permits a district court to delay consideration of a
summary judgment motion and order additional discovery before ruling if the non-movant
demonstrates that ‘it cannot present facts essential to justify its opposition.’” Sterk v. Redbox
Automated Retail, LLC, 770 F.3d 618, 627-28 (7th Cir. 2014) (quoting Fed. R. Civ. Pro. 56(d)).
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The party requesting additional discovery must show the need for it by affidavit, Fed. R. Civ. Pro.
56(d), and it is that party’s burden to “state the reasons why the party cannot adequately respond
to the summary judgment motion without further discovery[,]” Sterk, 770 F.3d at 628 (citing Deere
& Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006)). The party seeking additional discovery
has the “burden to identify material facts needed to oppose summary judgment.” Sterk, 770 F.3d
at 628.
AEP has met its burden to show that additional discovery is warranted before it can respond
to IMPA’s motion for summary judgment.

IMPA filed its summary judgment motion

approximately one month after the case management plan in this action was approved and
approximately six months before the close of discovery. [Filing No. 28; Filing No. 42.] IMPA
asks for summary judgment based on its conclusory assertion that it “did not and could not perform
the alleged acts underlying AE[P]’s claims.” [Filing No. 43 at 5.] Even if discovery ultimately
confirms IMPA’s position, it is undisputed that IMPA is a party to the contract at issue and may
have assumed certain obligations therein. [See, e.g., Filing No. 1-1 at 1 (“WHEREAS, operations
with respect to the matters covered by this Agreement will be managed and coordinated by
IMPA”).] AEP is entitled to confirm through discovery whether IMPA’s role is as limited as
IMPA contends, and AEP has filed the requisite affidavit identifying discrete areas of discovery
that could lead to evidence supporting disputed issues of material fact regarding IMPA’s role.
[Filing No. 47-1.]
For these reasons, the Court GRANTS AEP’s Motion to Deny or Defer Consideration
pursuant to Federal Rule of Civil Procedure 56(d), [Filing No. 47], and DENIES WITHOUT
PREJUDICE IMPA’s Motion for Summary Judgment, [Filing No. 42].

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Date: September 9, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Electronic Distribution via CM/ECF:
Brian Charles Hewitt
ALERDING CASTOR HEWITT LLP
[e-mail]
Michael J. Alerding
ALERDING CASTOR LLP
[e-mail]
Briana Lynn Clark
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
Gregory A. Neibarger
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
Peter Jon Prettyman
INDIANA MUNICIPAL POWER AGENCY
[e-mail]
James L. Thompson
LYNCH STERN THOMPSON LLP
[e-mail]

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