Appalachian Power Co. v. Nissen, CIVIL NO. 7:14-cv-000535
| Decision Date | 06 April 2015 |
| Docket Number | CIVIL NO. 7:14-cv-000535 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | APPALACHIAN POWER COMPANY., Plaintiff, v. WILLIAM W. NISSEN II, and LORA J. NISSEN, Defendants. |
This matter is before the Court on Defendants' Motion for Reconsideration. Defendants, moving under Fed. R. Civ. P. 52(b), seek reconsideration of my February 2, 2015 order, wherein I denied Defendants' motion to dismiss. Defendants argue that I erred in determining that this Court had subject matter jurisdiction over the case. Accordingly, they ask that I revise my order denying their motion, or, in the alternative, that I stay proceedings in this case and certify the order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). I have determined that this motion may be adequately decided without a hearing. The facts of this case are summarized in my earlier decision and will not be reiterated here. For the reasons that follow, I will deny Plaintiff's motion and their request for § 1292(b) certification.
A Rule 54(b) motion is the appropriate mechanism to ask a court for reconsideration of an earlier order that "adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties." The United States Court of Appeals for the Fourth Circuit has explained that reconsideration of an interlocutory order may be appropriate when "(1) a subsequent trialproduces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) (quoting Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir. 1988)); see also McAfee v. Boczar, No. 3:11cv646, 2012 WL 2505263, at *2 (E.D. Va. June 28, 2012) () (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). However, these considerations Am. Canoe Ass'n, 326 F.3d at 515. Further, the decision to revise an earlier order is committed to the discretion of the district court. Id.
Section 1292(b) permits a district court to certify an interlocutory order in a civil action for immediate appeal. This provides an exception to the general rule that a party may appeal only a final judgment, and as such, § 1292(b) certification is "justified in circumstances that are limited and strictly construed." Young v. Sheetz, Inc., 998 F. Supp. 670, 673 (W.D. Va. 1998). Certification is appropriate when the court determines that the interlocutory order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Defendants argue that my previous decision was in error because it overlooked pertinent case law, namely Jeffrey Lake Dev., Inc. v. Cent. Nebraska Pub. Power & Irr. Dist., No. 4:11CV3112, 2011 WL 7122188 (D. Neb. Nov. 23, 2011) report and recommendation adopted,No. 4:11CV3112, 2012 WL 296144 (D. Neb. Feb. 1, 2012). In that case, defendant Central Nebraska Public Power & Irrigation District ("Central") managed land pursuant to a license issued by Federal Energy Regulatory Commission ("FERC") in accordance with the Federal Power Act, 16 U.S.C. §§ 791a et seq., ("FPA"). Id. at *1. Central also developed a management plan for this land, similar to how Appalachian Power Company ("APCO") implemented a Shoreline Management Plan ("SMP") in the instant case. Id. Jeffrey Lake Development, Inc. ("Jeffrey Lake") leased a portion of the land which was subject to the FERC license. Id. A dispute emerged when Jeffrey Lake attempted to build a structure that Central claimed was forbidden under the lease. Id. at *2. Jeffrey Lake brought an action in Nebraska state court seeking a declaratory judgment that Central would be required to adhere to its past conduct and previous interpretation of the lease provisions, which Jeffrey Lake claimed would permit the construction of the structure at issue. Id. Central removed the case on the basis of federal question jurisdiction, 28 U.S.C. § 1331, and Jeffrey Lake responded by filing a motion to remand. Id. The magistrate judge ultimately recommended that this motion be granted and that the case be remanded to state court. Id. at *6.
I find that there are ample grounds to distinguish Jeffrey Lake from the instant case. First and foremost, in analyzing federal subject matter jurisdiction under 28 U.S.C. § 1331, the magistrate judge made much of the fact that the complaint focused exclusively on interpretation of the lease, which was governed by state law, and only touched on federal law to the extent that it asked the court to consider "other related or applicable rule[s], regulation[s], or polic[ies]," but did not "cite to any specific section of the FPA, its regulations, or even any specific provisions of the Management Plan governing the interpretation of Central's leases or its alleged breach of the lease terms in light of the historical interpretation of those agreements." Id. at *3-4. Themagistrate judge noted that under the well pleaded complaint rule, this allusion did not invoke a substantial issue of federal law for the purpose of 28 U.S.C. § 1331. Id. at *4. She also determined that even if the plaintiffs had explicitly cited the FPA, jurisdiction would still not exist under 16 U.S.C. § 825p because "plaintiffs are not seeking a finding that Central is somehow currently violating the FPA or its regulations."
Plaintiff in the instant case, however, does make explicit references to the specific sections of the FERC license and the SMP that the Defendants are alleged to be in violation of. For example, Plaintiff's complaint states:
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