Bowers v. Windstream Kentucky East, LLC et al

Filing 108

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 7/31/12; the Courts stay as to further proceedings on Count III of the complaint is LIFTED.Plaintiffs motion for partial summary judgment on Count III is DENIED 95 ; Defendants motion for summary judgment on Count III is DENIED 104 .cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:09-CV-440-H
DANA BOWERS, et al.
PLAINTIFFS
V.
WINDSTREAM KENTUCKY EAST, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiffs, Dana Bowers and Sunrise Children’s Services, Inc., have moved for partial
summary judgment as to Count III of the Complaint which alleges that Defendants violated state
law by failing to amend their state tariffs to reflect the “Kentucky Gross Receipts Surcharge”
before imposing that surcharge on customers.
Previously on April 29, 2010, this Court entered an order staying Count III of the
Complaint pending a ruling by the Kentucky Public Service Commission (“PSC”) on two
specific issues. On May 4, 2012, the PSC filed an order addressing those two issues and it is on
the basis of that order that Plaintiffs now request that the stay be lifted and that summary
judgment be entered in their favor.
Essentially, the Court faces two issues: First, whether to lift the stay; and second, whether
to grant Plaintiffs’ motion for summary judgment. As to the first issue, the Court is now of the
opinion that its stay should be lifted. The primary reason for doing so is that the Court’s initial
purpose, that is allowing the PSC to give its opinion on two specific state tariff issues, has been
accomplished. Even though that ruling is now on appeal, the Court sees no reason to delay other
potential meritorious progress in this litigation simply because of that appeal. Therefore, the

Court will lift the stay and proceed, where appropriate, with adjudication of the issues raised in
Count III.
Plaintiffs base their motion for partial summary judgment on Count III primarily upon a
recent PSC order. Having reviewed that order and Defendants’ commentary on it, the Court
concludes that there are sound reasons for denying Plaintiffs’ motion for summary judgment at
this time. First, Defendants have appealed the PSC rulings and it is quite possible that the Court
may benefit from further rulings of Franklin Circuit Court or a Kentucky appellate court. In any
event, the Court sees no benefit in ruling prematurely when subsequent reviews may be helpful
to the Court. Moreover, Defendants have raised a number of issues which call into question
whether Plaintiffs are entitled to summary judgment on their own claims. Defendants have
certainly raised factual issues which may not be resolved at this time.
As part of their response, Defendants have also moved for their own summary judgment
as to Count III. Some of the issues raised are also part of their current appeal of the PSC ruling.
Because Defendants have not discussed these issues in great depth, the Court will deny their
motion at this time.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that the Court’s stay as to further proceedings on Count III
of the complaint is LIFTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for partial summary judgment on
Count III is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment on Count
III is DENIED.

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July 31, 2012

cc:

Counsel of Record

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