Georgia Power Project v. Georgia Power Company

• Decision Date: 30 September 1975
• Docket Number: Civ. A. No. C75-299A.
• Citation: 409 F. Supp. 332
• Parties: GEORGIA POWER PROJECT et al., Plaintiffs, v. GEORGIA POWER COMPANY et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

409 F. Supp. 332

GEORGIA POWER PROJECT et al., Plaintiffs, v. GEORGIA POWER COMPANY et al., Defendants.

Civ. A. No. C75-299A.

United States District Court, N. D. Georgia, Atlanta Division.

September 30, 1975.

Ed. Martin, Jr. and David Alan Schlissel, Atlanta, Ga., for plaintiffs.

Tench C. Coxe, James E. Joiner, William H. Boice, Troutman, Sanders, Lockerman & Ashmore, Arthur K. Bolton, Atty. Gen., Timothy J. Sweeney, Asst. Atty. Gen., Robert J. Castellani, Deputy Atty. Gen., Atlanta, Ga., for defendants.

ORDER

JAMES C. HILL, District Judge.

This action was submitted to the Court on the defendants' motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On June 14, 1975, the Court directed the parties to supplement the record and to address certain concerns raised as to this Court's jurisdiction in light of the Georgia Supreme Court decision in Georgia Power Co. v. Allied Chemical Corp., 233 Ga. 558, 212 S.E.2d 628 (1975). Subsequently, the plaintiffs filed a motion for default judgment and the defendants responded with a motion to strike.

Plaintiffs Herring, Niemann, and Lahring are residential consumers of electricity of the defendant Georgia Power Company and members of Georgia Power Project. Plaintiff Georgia Power Project (the "Project") is an unincorporated association of Georgia citizens who are "concerned with the practices and policies of the Georgia Power Company and the effects of the practices and policies of that company on the public health, safety, and welfare." Plaintiffs Webb and Reynolds are residential consumers of electricity of Georgia Power Company. Defendants Wiggins, Kimbrough, Spinks, Barber and Pafford constitute the membership of the Georgia Public Service Commission (the "Commission"). Defendant Georgia Power Company ("Georgia Power") is a utility corporation providing electricity throughout a vast majority of the State of Georgia. The plaintiffs seek declaratory, injunctive and monetary relief from an order of the Commission alleged to be in violation of the Fifth and Fourteenth Amendments to the Constitution and a declaration that Ga.Code Ann. § 93-310 is unconstitutional.

On November 12, 1974, Georgia Power filed an application with the Commission for an emergency rate increase of $86,000,000 between December 17, 1974, and April 30, 1975, and rate schedules implementing the same. On this same date Georgia Power filed testimony and exhibits in support of its application. The application was assigned docket no. 2657-U and set for hearing on December 16, 1974. On December 16, 1974, at the request of the Commission's staff, the hearings were adjourned until January 20, 1975.

On December 17, 1974, Georgia Power filed a motion asking

a) that the Commission reconsider its action in postponing the emergency hearing and requesting that it reinstate the hearing schedule, or

b) that it accelerate the hearing date to January 10, 1975, and, in the interim, permit the emergency rates to go into effect fully, subject to refund, or

c) that it accelerate the hearing date to January 10, 1975, and permit recovery of the almost $45,000,000 in 1974 unrecovered fuel costs. The Commission met in executive session on that same date and denied a) and b) above. As to c), the acceleration of the hearing date was denied, but a hearing was set for December 19, 1974, for the purpose of hearing evidence concerning the alleged unrecovered fuel costs.

On December 19 and 20, 1974, the Commission held hearings on the motion of Georgia Power. On December 23, 1974, the Commission approved an increase on an emergency basis in the form of a surcharge not to exceed $35,000,000 to commence January 23, 1975. The surcharge applied to all retail sales during the period, except residential users using 350 kilowatt hours or less per month.

The plaintiffs alleged in their original complaint that this order of the Commission was made without adequate or reasonable notice or hearing; that the order relied upon evidence and testimony not submitted ten (10) days in advance, in violation of the Commission's General Rule 15;¹ that the order was made without reasonable notice of a new rate schedule having been filed, in violation of Ga.Code Ann. § 93-307.1;² and that the plaintiffs were denied due process of law in the promulgation of the order, in violation of the Fourteenth Amendment. Plaintiffs further contend that the rates established by the order deprive them of life, liberty, and property without due process of law and that the rates are unjust and unreasonable. Finally, plaintiffs alleged that Ga.Code Ann. § 93-310³ establishes an irrebuttable presumption of justness and reasonableness without an opportunity for them to challenge the determination so as to deprive them of due process.⁴

On February 13, 1975, defendant Georgia Power submitted the instant motion to dismiss for failure to state a claim upon which relief could be granted. On February 24, 1975, plaintiffs filed their "Amended Complaint." In addition to the allegations made in the original complaint, the plaintiffs submit that the Commission held further hearings in docket no. 2657-U the week of January 20-24, 1975, and that on February 3, 1975, additional substantive evidence was presented by Georgia Power to the Commission without copies being served on plaintiffs and after the record had been closed, in violation of General Rule 15. Furthermore, plaintiffs assert that the Commission held ex parte meetings and conversations with officers and agents of Georgia Power, prior to issuance of a final order on February 6, 1975, which order affirmed the previous order of December 23, 1974, and allowed an additional $25,000,000 in rate increases. Plaintiffs also assert that in the promulgation of this latter order that they were denied due process; that the rates allow reimbursement to Georgia Power of $2,000,000 of expenses incurred as a result of acts and practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. which amounts to ratification of unconstitutional discrimination in violation of the due process and equal protection clauses of the Fourteenth Amendment; and, that the order deprives plaintiffs of their rights under the Public Holding Company Act of 1935, 15 U.S.C. § 79 et seq.

On March 4, 1975, defendants Wiggins, Kimbrough, Spinks, Barber and Pafford filed their motion to dismiss for failure to state a claim upon which relief can be granted.

The complaint in this case was filed on February 7, 1975, and served on defendant Georgia Power on February 12, 1975. On February 13, 1975, Georgia Power moved to dismiss the complaint under Rule 12(b)(6) and on February 24, 1975, plaintiffs filed a brief in opposition to the motion to dismiss and a pleading styled "Amended Complaint." The "Amended Complaint" realleges the matters in the original complaint, incorporates by reference the exhibits attached to the original complaint, and alleges additional facts as to events occurring after the events covered by the original complaint in support of additional relief. The "Amended Complaint" alleges some additional violations of law alleged to have resulted from the promulgation of a separate order of the Commission.

Plaintiffs move for default judgment against all defendants for failing to respond to the "Amended Complaint," and Georgia Power moves to strike the "Amended Complaint" because it is in reality a supplemental pleading which requires leave of Court to be filed and no such permission was granted.

A default judgment may be obtained by application to the Court upon the failure of any party to plead or otherwise defend as provided by the Federal Rules of Civil Procedure. Rule 55, F.R.C.P. A party may amend his pleading once as a matter of course any time before a responsive pleading is served; otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Rule 15, F.R.C.P. Upon motion of a party, the Court may upon such terms as are just permit a party to serve supplemental pleadings setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.

Whether the additional pleading in this case is an "Amended Complaint" or a supplemental pleading in the technical sense, the Federal Rules are to be interpreted liberally so as to reach the merits of a controversy. The grant or denial of a motion for entry of a default judgment lies within the sound discretion of the trial court. Duling v. Markun, 231 F.2d 833 (7th Cir. 1956), cert. den. 352 U.S. 870, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). The plaintiffs have not shown, nor do they even allege, any prejudice as a result of the defendants allegedly improper failure to respond to their "Amended Complaint." Consequently, the motion for entry of default judgment is denied.

Nor can the defendants show any prejudice as a result of plaintiffs' alleged failure to obtain leave of court in order to file their "supplemental pleadings." The motion to dismiss submitted by the defendants was treated by all parties as properly in issue in this case. The motion to dismiss was responsive to the original as well as the amended complaint. The motion to strike is therefore denied.

In the Court's order of June 14, 1975, concern was expressed as to whether or not one or all of the plaintiffs are barred from bringing this action as a result of the Georgia Supreme Court decision in Georgia Power Co. v. Allied Chemical Corp., 233 Ga. 558, 212 S.E.2d 628 (1975). In this recent case corporate users of electrical power and the Georgia Power Project sought an injunction against orders of the Commission on the grounds that the rate structure was unreasonable and that the rate level was unreasonably high. The issue as framed by the Georgia Supreme Court was

"whether consumers of electricity supplied

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