Opinion
Civil No. 03-CV-1641-HA.
July 30, 2004
William F. Martson, Jr., Steven M. Wilker, Paul W. Conable, Tonkon Torp, Portland, Oregon, Attorneys for Plaintiff.
Stephen K. Bushong, Oregon Department of Justice, Salem, Oregon, Attorney for Defendant.
OPINION AND ORDER
Before the court is the Attorney General's Motion to Dismiss (Doc. #5). For the following reasons, the motion is granted.
BACKGROUND
The Attorney General of the State of Oregon, seeks to investigate Portland General Electric Company (PGE) through a Civil Investigative Demand (CID) issued pursuant to the Oregon Unlawful Trade Practices Act (UTPA), O.R.S. 646.618, and through an Investigative Subpoena issued pursuant to the Oregon Racketeer Influenced and Corrupt Organization Act, O.R.S. 166.730. The investigation concerns PGE's electricity trading practices and the alleged manipulation of electricity transmissions.
The Attorney General served PGE with the CID and Investigative Subpoena on November 7, 2003. PGE did not respond. On December 16, 2003, the Attorney General filed a motion in Multnomah County Circuit Court for an Order to Show Cause based on PGE's failure to respond to the CID and Investigative Subpoena. The state court ordered PGE to appear on January 9, 2004, to show cause for failing to comply with the investigation.
PGE removed the investigation to this court, which subsequently remanded the matter to state court because it was not a "civil action," within the meaning of 28 U.S.C. § 1441(a). See Myers v. Portland Gen. Elec., 04-3002-HA.
PGE filed this action in federal court seeking to obtain declaratory relief that would halt the state investigation. PGE's first claim seeks a declaration that the investigation is preempted by the Federal Power Act (FPA) and barred by claim preclusion and judicial estoppel. PGE's second claim seeks a declaration that the investigation is barred by the parties' contract and by the state common law doctrines of claim preclusion and judicial estoppel. PGE's third claim seeks an order setting aside the CID for good cause pursuant to O.R.S. 646.618(2). PGE's fourth claim seeks an order halting the investigation on the grounds that the investigation is improper and will unduly burden PGE. See Or. R. Civ. P. 36C.
Only PGE's first claim involves questions of federal law. 28 U.S.C. § 1331; PGE invokes the court's supplemental jurisdiction over the related state law claims. 28 U.S.C. § 1367.
STANDARDS
The Attorney General moves to dismiss the entire Complaint. Fed.R.Civ.P. 12(b)(1); see Gemtel Corp. v. Cmty. Redevelopment Agency of the City of Los Angeles, 23 F.3d 1542, 1544 n. 1 (9th Cir. 1994) (noting that mootness and ripeness are properly challenged under Rule 12(b)(1)).
This court's jurisdiction is limited to adjudicating only actual cases and controversies. See Raines v. Byrd, 521 U.S. 811, 818 (1997); Cent. Delta Water Agency v. United States, 306 F.3d 938, 946 (9th Cir. 2002). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotations and citations omitted).
DISCUSSION
PGE's first claim seeks declaratory relief invalidating the investigation based on federal preemption, claim preclusion, and judicial estoppel. The court finds that these claims are not ripe for review.
The ripeness inquiry focuses on constitutional and prudential considerations. See Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). The constitutional inquiry focuses on whether the issues in a case or controversy are "definite and concrete, not hypothetical or abstract." Id. at 1139 (citing Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93 (1945)). The prudential concerns require evaluation of "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 1141 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)); see also Ohio Forestry Assoc., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
PGE contends that this matter involves a live case or controversy because the Attorney General seeks to enforce the CID and Investigative Subpoena in state court. The Attorney General contends that no live case or controversy exists because the matter is only an investigation that may not result in any action being filed against PGE.
The determination in Myers v. Portland General Electric, 04-3002-HA, mandates that the current matter be dismissed. The court found that the current investigation was a special statutory procedure under state law that allowed the Attorney General to investigate possible unfair or fraudulent business practices. Although any civil charges filed against PGE will likely be preempted by the FPA, the court cannot evaluate such a claim until the investigation is completed. See People of California ex rel. Lockyer v. Dynegy, Inc., Nos. 02-16619, 03-15588, 02-16625, 02-16629, 2004 WL 1488195 (9th Cir. July 6, 2004) (holding that claims brought by the State of California against several power companies for alleged violations of California's unfair competition law were preempted by the FPA).
State law authorizes the Attorney General to investigate " any person who is believed to have information" relevant to a "suspected violation" of the UTPA. Vendall Marketing Corp. v. State, Dept. of Justice, 863 P.2d 1263, 1263 n. 1 (Or. 1993) (citing O.R.S. 646.618(1)). It is possible that the investigation will lead to no charges being filed or that charges will be filed against individuals or entities unrelated to PGE. PGE asks this court to speculate about the possible outcomes that may result from the investigation. However, this court has jurisdiction over live cases and controversies, not possible disputes that may never materialize.
Based on the constitutional and prudential concerns relevant to the inquiry, the court determines that the case is not ripe for review. Thomas, 220 F.3d at 1138. Because PGE seeks declaratory relief based on hypothetical charges being filed against PGE that may or may not result from the investigation, the case is not constitutionally ready for review. Further, PGE will not be exposed to hardship by complying with the Attorney General's investigation because it admits that the documents and information sought by the Attorney General arise largely from investigations conducted by the Federal Energy Regulatory Commission. Therefore, it appears that PGE would not be overly burdened by producing documents in its possession.
The matter is dismissed without prejudice. See S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir. 1990) (remanding for the district court to dismiss an unripe takings case without prejudice).
This ruling disposes of all matters over which this court has original federal question jurisdiction. See 28 U.S.C. § 1331. The court declines to exercise supplemental jurisdiction over PGE's remaining state law claims. See 28 U.S.C. § 1367.
CONCLUSION
For the foregoing reasons, the Attorney General's Motion to Dismiss (Doc. #5) is GRANTED.
IT IS SO ORDERED.