In Re: Western States Wholesale Natural Gas Antitrust Litigation (MDL 1566)
Filing
2272
ORDER that the Order (ECF No. 2270 ) is AMENDED IN PART, and the Motion to Dismiss (ECF No. 2252 ) is DENIED. Signed by Judge Robert C. Jones on 1/26/16. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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In re WESTERN STATES WHOLESALE
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NATURAL GAS ANTITRUST
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LITIGATION.
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2:03-cv-01431-RCJ-PAL
MDL No. 1566
ORDER
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The Court recently granted four motions to dismiss for lack of jurisdiction for failure to
oppose. See Local R. 7-2(d). Some parties have contacted the Court to express confusion over
the opposition deadline. The Court issues the present order to clarify that it has never intended to
extend response dates as to jurisdictional motions (as opposed to summary-judgment-type
motions) beyond what the local rules provide. The Court notes that the Magistrate Judge
previously issued one or more orders concerning extended deadlines applicable at least as to
certain merits issues, except as otherwise ordered by the Court. Although movants had requested
briefing under the local rules’ timeframes, the Court did not explicitly order it. Because counsel
may have reasonably interpreted the Magistrate Judge’s extension to have relieved them from
responding under the local rules, however, the Court will address the motions on the merits.
First, the Court notes that it would have granted three of the four motions on the merits
under the law of the case. As movants noted, Judge Pro granted several motions to dismiss for
lack of personal jurisdiction, and his dismissals were not appealed as to Defendants Reliant
Energy, Inc., CMS Energy Corp., Cantera Gas Co, Duke Energy Carolinas, LLC, and Duke
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Energy Trading & Marketing, LLC. (See Orders, ECF Nos. 1528–30). The Court will therefore
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not revisit Motions 2248–50, although Plaintiffs may of course file motions to reconsider.
Second, however, AEP Energy Services, Inc. (“AEPES”) and American Electric Power
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Co., Inc. (“AEP”) brought their motion after Judge Pro’s previous dismissal for lack of personal
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jurisdiction, (see Order, ECF Nos. 1531), was reversed by the Court of Appeals except as to AEP
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in the Heartland case because Plaintiffs in that case only appealed Judge Pro’s dismissal of
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AEPES, (see Court of Appeals Op. 57–58, ECF No. 2113). The law of the case therefore
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prevents the Court from granting AEP’s and AEPES’s motion, and the Court must reverse itself
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in that regard. Movants argue that the Court of Appeals’ opinion did not resolve the issue, both
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because that opinion reversed Judge Pro’s dismissal for lack of personal jurisdiction as to a
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previous version of the Complaint, not the Third Amended Complaint (“TAC”) that is now
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operative, and because AEP and AEPES must now be given an opportunity to present evidence
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to rebut the claim of personal jurisdiction whereas it previously moved based on the
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insufficiency of the allegations. The Court rejects the argument. Motions for lack of personal
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jurisdiction under Rule 12(b)(2) permit parties to present evidence in support or opposition.
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There is no indication movants did not have that opportunity before Judge Pro, and the Court of
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Appeals thoroughly examined the jurisdictional issue in its opinion, ruling that Plaintiffs had
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made the required prima facie showing. The TAC appears to contain the same relevant
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allegations against movants as the Second Amended Complaint that was before Judge Pro when
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he ruled. The Court finds no basis to revisit the issue.
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CONCLUSION
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IT IS HEREBY ORDERED that the Order (ECF No. 2270) is AMENDED IN PART,
and the Motion to Dismiss (ECF No. 2252) is DENIED.
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IT IS SO ORDERED.
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Dated this 26th day of January, 2016.
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_____________________________________
ROBERT C. JONES
United States District Judge
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