Energy Mich., Inc. v. Scripps

• Decision Date: 28 March 2022
• Docket Number: 20-12521
• Court: U.S. District Court — Eastern District of Michigan
• Parties: ENERGY MICHIGAN, INC., and ASSOCIATION OF BUSINESSES ADVOCATING TARIFF EQUITY, Plaintiffs, v. DANIEL C. SCRIPPS, KATHERINE L. PERETICK, and TREMAINE L. PHILLIPS, Defendants, and CONSUMERS ENERGY COMPANY, Intervening defendant.

ENERGY MICHIGAN, INC., and ASSOCIATION OF BUSINESSES ADVOCATING TARIFF EQUITY, Plaintiffs,
v.
DANIEL C. SCRIPPS, KATHERINE L. PERETICK, and TREMAINE L. PHILLIPS, Defendants,

and CONSUMERS ENERGY COMPANY, Intervening defendant.

No. 20-12521

United States District Court, E.D. Michigan, Southern Division

March 28, 2022

ORDER DENYING MOTION FOR INTERLOCUTORY APPEAL

DAVID M. LAWSON, United States District Judge.

On February 23, 2022, the Court filed an opinion and order denying the parties' cross motions for summary judgment. In that opinion, the Court stated that General Motors Corp. v Tracy, 519 U.S. 278 (1997), did not provide a governing rule in this case. Tracy addressed an allegedly discriminatory tax exemption levied against certain entities that sold natural gas and competed with public utilities. The Supreme Court determined that removing the differential treatment would not increase competition in the market for captive small residential customers where local natural gas distribution companies and alternative gas suppliers did not compete. Id. at 300-04. Tracy was distinguishable because alternative electricity suppliers like those represented by the plaintiffs in this case provide the same commodity - electricity - in the same markets as other load serving entities, including public utilities like the intervening defendant, Consumers Energy Company.

1

Consumers Energy now moves to certify for interlocutory appeal the question whether Tracy applies “to the instant case.” The motion is fully briefed, and oral argument will not assist in its disposition. The Court, therefore, will decide the motion on the papers submitted. E.D. Mich. LR 7.1(f)(2).

Ordinarily, the court of appeals has jurisdiction only over “final decisions of the district courts of the United States.” 28 U.S.C. § 1291; see Hitchcock v. Cumberland Univ. 403(b) DC Plan, 851 F.3d 552, 557 (6th Cir. 2017). There has been no final decision in this case. A final decision is “typically one ‘by which a district court disassociates itself from a case.'” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 42 (1995)).

However, a district court may certify an order for interlocutory appeal if it “involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); In re Trump, 874 F.3d 948, 951 (6th Cir. 2017) (quoting 28 U.S.C. § 1292(b)). “Review under § 1292(b) is granted sparingly and only in exceptional cases, ” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002), to “avoid protracted and expensive litigation, ” Kraus v. Bd. of Cnty. Road Comm'rs of the Cnty. of Kent, 364 F.2d 919, 922 (6th Cir. 1966) (quoting Milbert v. Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir. 1958)).

The decision denying the parties' cross motions for summary judgment on the plaintiffs' dormant Commerce Clause claim was made in the context of motions brought under Federal Rule of Civil Procedure 56, which may be granted only if there “is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The issue of whether Tracy applies in this case is not purely a question of law. There are facts that

2

must be determined before Tracy's governing rule can be applied. Several courts have held that interlocutory appeals of summary...