Abelman Art Glass v. AEP Energy Services, Inc.

MEMORANDUM *

The district court granted the defendants’ motion to dismiss on the ground that the filed rate doctrine barred all claims of Abelman Art Glass Company, Fairhaven Power Company, and Utility Savings and Refund Services, LLP (“Plaintiffs”). On a motion to dismiss “[a]ll allegations and reasonable inferences are taken as true, and the allegations are construed in the light most favorable to the non-moving party.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). As we clarified in E. & J. Gallo Winery v. Encana Corp., 503 F.3d 1027 (9th Cir.2007), the Filed Rate Doctrine, as defined in that case, bars claims based on FERCapproved rates. FERC’s jurisdiction does not include approving retail rates, i.e., amounts paid in sales for consumption of natural gas, and therefore claims based on retail rates are not directly barred by the Filed Rate Doctrine. See 15 U.S.C. § 717 (b); Panhandle E. Pipe Line Co. v. Pub. Serv. Comm’n of Ind., 332 U.S. 507, 517 , 68 S.Ct. 190 , 92 L.Ed. 128 (1947). In their complaint, Plaintiffs alleged that all of their purchases of natural gas were for consumption. As indicated in E. & J. Gallo Winery, to the extent Plaintiffs’ damage claims are…