Lucas v. Citizens Communications Co.
| Decision Date | 15 November 2005 |
| Docket Number | No. CIV. 03-00295 HG-LEK.,CIV. 03-00295 HG-LEK. |
| Citation | 409 F.Supp.2d 1206 |
| Parties | Paul LUCAS dba Solar Engineering and Contracting, Plaintiff, v. CITIZENS COMMUNICATIONS COMPANY, a Delaware profit corporation, F.K.A. Citizens Utility Company and dba Kauai Electric, and Kauai Island Utility Cooperative, a Hawaii Cooperative, Defendants. |
| Court | U.S. District Court — District of Hawaii |
David J. Gierlach, Honolulu, for Paul Lucas, Plaintiff.
Stacey T. Kawasaki-Djou, Cades Schutte, Honolulu, for Citizens Communications Company, Defendant.
Kaiulani E. Kidani, Marr Hipp Jones & Wang LLLP, Honolulu, for Citizens Communications Company, Leonard Tow, Defendants.
Gary M. Levitt, Attorney at Law, Honolulu, for Paul Lucas, Plaintiff.
Jeffrey S. Portnoy, Cades Schutte, Honolulu, for Citizens Communications Company, Leonard Tow, Defendants.
David W. Proudfoot, Belles Graham Proudfoot & Wilson, Lihue, for Kauai Island Utility Cooperative, Alton Miyamoto, Greg Gardiner, Ray Mierta, Defendants.
Pamela P. Rask, Belles Graham Proudfoot & Wilson, Lihue, for Kauai Island Utility Cooperative, Alton Miyamoto, Greg Gardiner, Ray Mierta, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff alleges that Defendants' practice of imposing maximum price restrictions in its rebate program for the installation of solar water heaters on the island of Kauai violates state and federal antitrust law. Plaintiff also alleges a cause of action for defamation. Defendants have moved for summary judgment on all claims.
For the reasons set forth below, Defendants are entitled to summary judgment on the federal and state antitrust claims and the defamation claim. Defendants' Motion for Summary Judgment is GRANTED.
On June 13, 2003, Plaintiff filed a complaint pro se.
On October 22, 2003, the Court issued an order granting in part and denying in part Defendants' Motion to Dismiss the complaint.
On November 21, 2003, Plaintiff, through counsel, filed an amended complaint.
On May 4, 2005, Defendant Kauai Island Utility Cooperative ("KIUC") filed a motion for summary judgment.
On May 9, 2005, Defendant Citizens Communications Company ("Citizens") joined in Defendant KIUC's Motion for Summary Judgment.
On May 9, 2005, Defendant KIUC filed errata to its Motion.
On August 4, 2005, Plaintiff filed a memorandum in opposition to Defendant KIUC's Motion for Summary Judgment and the declaration of Paul Lucas.
On August 11, 2005, Defendant KIUC filed a reply.
On August 11, 2005, Defendant Citizens filed a reply.
Defendant Citizens, doing business as Kauai Electric on the island of Kauai, was formerly the provider of electricity on Kauai. On November 1, 2002, KIUC acquired all the assets of Kauai Electric from Citizens. (Def.'s Concise Statement ¶ 5; Pl.'s Concise Statement ¶ 5.)
Plaintiff Paul Lucas, doing business as Solar Engineering and Contracting, sells and installs solar water heaters on the island of Kauai. Plaintiff has been selling and installing solar water heaters for over 20 years. (Lucas Decl. ¶ 3.)
On December 1, 1994, Citizens filed an application with the Public Utilities Commission of the State of Hawaii for approval of six demand-side management, or energy conservation, programs. The purpose of the demand-side management programs is to increase energy efficiency, decrease energy demand, and postpone the need for the construction of new energy generating facilities. The Public Utilities Commission approved the six programs in an order dated August 5, 1997.
One of the demand-side management programs was the Residential Retrofit Program which addressed the installation of energy saving devices such as solar water heaters in existing homes. (Id. at 6.) Another program, the Residential Direct Install Program, was directed toward low income and rental residences. (Id. at 7.) Yet another program, the Residential New Construction Program, involved the installation of energy efficient technologies in new residential construction. (Id. at 8.)
These three residential demand-side management programs provided incentives to home-owners to purchase and install solar water heaters in their homes. The primary incentives were rebates and financing at low rates of interest. (Id. at 7-8.) Under the programs, Citizens was to offer rebates of as much as 70-percent of the cost of the solar water heaters installed in single-family homes. (Id.)
The Public Utilities Commission allowed Citizens to recover the cost of administering the program, the cost of the rebates, and its lost profit due to lower revenues from the reduced energy demand through a surcharge imposed on all rate payers. (Id. at 9-10 and 27.) In other words, the program was designed to have no effect on Citizens' profitability, no matter how many or how few solar water heaters were installed on Kauai. The Commission's order also provided for annual review and reporting of the cost-effectiveness of the demand-side management programs. (Id. at 26.)
Citizens marketed the demand-side management programs on Kauai as the Energy Wise Program. Citizens developed a procedure for approving rebates for the installation of solar water heaters only through approved contractors who had signed an agreement to participate in the Energy Wise Program. (KIUC's Reply Memo., Ex. B "A Contractor's Guide to the Solar & Heat Pump Rebate Process", at 1494-97.)
Citizens conducted an independent evaluation of each home for which a rebate application was submitted to determine how much energy would be saved by the installation of a solar water heater. Based on the evaluation, Citizens would set a price above which Citizens would not pay a rebate. (Id. at 1491, 1493-97.) The price was determined by the amount of energy that the installation of a solar water heater would save. (Id. at 1494.) Citizens would only give rebates in situations where the energy savings would justify the cost. Certain applicants were denied participation in the program because Citizens believed the installation of a solar water heater would not be cost effective. Citizens sometimes set different maximum prices for solar water heaters in different homes because the energy savings for each home were different. For example, in a home where the energy savings were greater, Citizens would approve a higher purchase price for a water heater. As a result, two homeowners could pay different maximum prices for the same equipment and receive different rebates. (Id.; Pl.'s Concise Statement, Ex. E.)
In 1998, Plaintiff became an approved contractor for the Energy Wise Program on Kauai. In 2000, Plaintiff was terminated as an approved contractor for attempting to charge customers more than the maximum price established by Citizens. (Lucas Decl. ¶ 24.) Plaintiff claims he was unable to profit from installing water heaters as Citizen "fixed" the price of solar water heaters too low for him to profitably sell them to customers approved for the rebate. (Id. at ¶¶ 12, 13.)
Plaintiff has alleged price-fixing and monopolization pursuant to Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2. Plaintiff argues that Citizens, and later KIUC, had unlawful motives in applying for approval for the solar water heater rebate program in 1994, and in administering it since 1998. Plaintiff contends that Defendants did not truly desire to reduce electricity consumption on Kauai through the proliferation of low-cost solar water heaters. Plaintiff claims Defendants actually intended to increase electricity consumption by maintaining an artificially low price for solar water heaters, which would drive solar water heater sellers out of business, and limit the spread of the heaters on Kauai. Plaintiff essentially claims that the Defendants operated the Energy Wise Program to injure competition in the solar energy installation market.
Plaintiff objects to the authenticity of the August 5, 1997 Decision and Order of the Hawaii Public Utilities Commission, which Plaintiff contends is authenticated only by the declaration of counsel for Defendant KIUC. Plaintiff objects to the Declaration of Ray Mierta as it is unsigned. Plaintiff argues that "the Court may properly deny Defendant's Motion solely for its lack of admissible evidence."
Plaintiff's evidentiary objections are overruled.
The August 5, 1997 Decision and Order need not be authenticated at summary judgment as long as the Court is satisfied that it is capable of being authenticated at trial. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir.2003), cert. denied 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004); Fonseca v. Sysco Food Serv. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004). The Decision and Order is a public document likely to be easily authenticated at trial. Plaintiff has also submitted portions of the August 5, 1997 Decision and Order as an exhibit to his concise statement of facts in opposition to summary judgment. (Pl.'s Concise Statement, Ex. D.)
The Declaration of Ray Mierta is admissible. The declaration submitted on May 4, 2005 is unsigned, but Defendant KIUC followed up by filing a signed declaration on May 9, 2005.
Defendant objects to several affidavits attached to Plaintiff's Concise Statement of Facts and asks the Court to disregard the exhibits.
Defendant KIUC objects to the Affidavit of Marc Anthony based on Fed.R.Civ.P. 56(e), which provides that assertions of fact must be in a form admissible into evidence. (Pl.'s Concise Statement, Ex. 2.) Marc Anthony states that he is the president of Pacific Solar, one of the largest solar water heating companies in the state. Defendant KIUC objects to...
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