Bullwinkel v. United States Department of Energy et al

Filing 162

ORDER denying 105 Plaintiff's Motion to add additional party. Signed by Judge J. Daniel Breen on 8/13/12.(Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

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GARY BULLWINKEL,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
ENERGY, et al.,
Defendants.

No. 11-1082-JDB-egb

ORDER DENYING PLAINTIFF’S MOTION TO JOIN ADDITIONAL PARTY

On January 9, 2012, Plaintiff, Gary Bullwinkel, filed a motion
to join additional party (Docket Entry (“D.E.”) 105) pursuant to
Rule 19(a)(1)(A) of the Federal Rules of Civil Procedure.

The

motion sought to add as additional defendants the University of
Tennessee Research Foundation (“UTRF”) and its president, Dick
Gourley. On January 23, 2012, the State of Tennessee and the State
Official Defendants filed a response in opposition to the motion.
(D.E. 108.)

On January 24, 2012, responses in opposition were

received from the Federal Defendants (D.E. 110), the Chickasaw
Electric

Cooperative

and

John

University Defendants (D.E. 113).

Collins

(D.E.

111),

and

the

The TVA Defendants filed their

response on January 25, 2012. (D.E. 115.)
Rule 19(a)(1)(A) provides that "[a] person who is subject to
service of process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if . . . in

that person's absence, the court cannot accord complete relief
among existing parties[.]"

Fed. R. Civ. P. 19(a)(1)(A).

Rule 19

provides "guidance for the joinder of persons needed for just
adjudication."

Glancy v. Taubman Ctrs, Inc., 373 F.3d 656, 664

(6th Cir. 2004), reh'g en banc denied (Aug. 27, 2004).

"It

establishes guidelines for determining when it is proper to dismiss
a case because a person or entity has an interest in the outcome of
the litigation that could be impaired in the absence of that person
or entity, but joinder of the person or entity will deprive the
court of subject matter jurisdiction."

Id.

The Rule is the "tool

of the defendant, as the plaintiff has the power to choose which
parties [he] wishes to sue and generally has ample freedom to amend
[his] complaint to add a party."

Id. at 669.

Thus, the Court will

analyze the motion as one to add a party by amending the complaint.
Amendment of a plaintiff's complaint is governed by Rule 15 of
the Federal Rules of Civil Procedure, which provides that such
amendment should be freely given "when justice so requires.”
R. Civ. P. 15(a)(2).

Fed.

Bullwinkel proffers the following basis for

adding defendants in this matter:
UTRF, an independent corporation, is the UT subcontractor
and administrator of the Solar Farm project and has
contractual responsibilities and direct control of the
Solar Farm and other subcontractors including the already
named Defendant, Chickasaw Electric Cooperative. This
contractual responsibility, but not limited to, is
evidenced by Document 48-2, Interconnection Agreement
between Chickasaw Electric Cooperative and University of
Tennessee Research Foundation and possibly, the TVA
Purchase Power Agreement, which has not been submitted in
this case, yet. Any relief concerning the Solar Farm,
Chickasaw Electric Cooperative, the Purchase Power
Agreement or further actions or compliance issues with
2

the Mitigation Action Plan as filed with the Solar Farm
Environmental Assessment would require UTRF presence
before the Court if such relief is granted based upon the
merits of Plaintiff's pleadings.
(D.E. 105 at 1-2.)
“[A] motion for leave to amend must state with particularity
the grounds for amendment.”

Patterson v. Novartis Pharms. Corp.,

451 F. App’x 495, 499 (6th Cir. 2011); see also Evans v. Pearson
Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006) (same).

A party

seeking leave to amend should also submit a proposed amended
complaint.
The

Patterson, 451 F. App’x at 499.
instant

motion

states

only

that

the

UTRF

is

the

administrator of the Solar Farm project and has a contractual
relationship with the Chickasaw Electric Cooperative. (D.E. 105 at
1.)

In his most recent complaint filed April 19, 2011, Bullwinkel

did not state a plausible claim against UTRF and Gourley.

It

mentioned Gourley not at all and contained few allegations about
UTRF.

Those allegations are as follows:
44. The University of Tennessee is a public land
grant educational institution that is also involved with
energy development and research through its subsidiary
the University of Tennessee Research Foundation.
78. October, 2010:
Public comment meeting for
Solar
Farm
Draft
EA
held
in
Brownsville,
TN.
Representatives from DOE, TDOT, SAIC and the University
of Tennessee Research Foundation attended and presented
at the public comment meeting.
Chickasaw Electric
Cooperative did not participate or have representation
present.
105. CEC did not perform NEPA analysis in any manner
or form. CEC is not currently a contractual party with
the University of Tennessee Research Foundation (UTRF) or
TVA concerning the transmission of power from the Solar
Farm to the Dancyville Substation. . . .
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108. Plaintiff’s property is directly affected by
CEC distribution lines nearby and on his property
presently.
Woodland forest habitat purchased and
protected by Plaintiff could be at significant risk
depending
on
transmission
line
placement
and/or
rerouting.
Small tributaries of the Big Muddy Creek
cross Yum Yum Road along his property and current Right
of Way routing for the CEC distribution lines. Under
current management practices this area serves as
important “wildlife corridors” across and under the
roadway. Associated tree arboreal habitat and underbrush
gives a continuous wildlife habitat important to birds,
animals and other life forms.
No quantification or
qualification of these important environmental qualities
and refuges has been done by CEC or UTRF. This lack of
environmental analysis affects the plaintiff directly in
enjoyment of his property and his desire to foster and
encourage a varied and desirable wildlife habitat for
many different species including himself and his family.
(D.E. 5 at 8, 15, 23-25.)

The Plaintiff did not provide in

connection with this motion a proposed amended complaint containing
any additional factual allegations about UTRF and Gourley, the
claims he intends to assert against them, or the relief he seeks.
A

motion

to

amend

a

complaint

should

be

denied

if

the

amendment would be futile, that is, if it would not survive a
motion to dismiss for failure to state a claim under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.

Hanner v. City of

Dearborn Heights, 450 F. App’x 440, 448 (6th Cir. 2011).

Such

motions may also be properly denied where there has been an undue
delay in filing or undue prejudice to the opposing party.

Wade v.

Knoxville Utils. Bd., 259 F.3d 452, 458 (6th Cir. 2001). “Delay by
itself is not sufficient reason to deny a motion to amend.”
Prejudice

is

a

“critical

factor[]

amendment should be granted.”

in

determining

Id. at 458-59.

whether

Id.
an

“When amendment is

sought at a late stage in the litigation, there is an increased
4

burden to show justification for failing to move earlier.”

Id. at

459.
Plaintiff’s proposed amendment appears to be futile.

His

claims against the UTRF appear to be barred by the Eleventh
Amendment, just like his claims against the State of Tennessee, the
Tennessee agencies and the University of Tennessee.
at 3-4; D.E. 117 at 2-3.)

(See D.E. 116

The prior holdings that NEPA and the APA

are inapplicable to state actors bar Plaintiff’s claims against the
UTRF and Gourley under those statutes.

(See D.E. 116 at 4-5; D.E.

117 at 3; D.E. 120 at 2-4; D.E. 130 at 5.)1
Therefore, Plaintiff’s motion is DENIED.
IT IS SO ORDERED this 13th day of August 2012.

s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

1
The Court also notes that Plaintiff did not include these claims in
his proposed second amended complaint. (See D.E. 147-1.) Bullwinkel's motion
for leave to file the second amended complaint was denied in an order entered
this date. (D.E. 160.)

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