Modesto Irrigation District v. Pacific Gas & Electric Co.

MEMORANDUM **

We review 12(b)(6) dismissal of a complaint without leave to amend de novo. Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1101 (9th Cir.1999). We refer throughout to PG & E as shorthand for both defendants, PG & E and Dynergy (Destec), except where the context makes it clear that we mean only PG &E.

PG & E’s motion to take judicial notice of Modesto’s application to FERC, the California Public Utilities Commission’s intervention opposing Modesto’s application, FERC’s docket regarding these, and a FERC ruling, is granted.

PG & E argues that the federal courts have no jurisdiction over claims such as Modesto’s, because FERC’s comprehensive regulatory authority by implication displaces the antitrust laws, particularly in view of the 1992 amendments granting FERC authority to order wholesale wheeling. The argument rests on analogy and policy rather than authority directly on point. The argument cannot withstand the force of the statutory language, which survives the 1992 amendments, that the relevant statutory provisions “shall not be construed to modify, impair, or supersede the antitrust laws.” 16 U.S.C. § 824k(e)(2). There is not a good ground for…