# Petition — Mississippi Power & Light Co. v. United Gas Pipe Line Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0991%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1094 ## Text Supreme Goud, U. 3, FILED DEC 13 1976 | MICHAEL RODAK, JR., CLERK IN THE Supreme Court of the United States OCTOBER TERM 1976 NO. —t6-796 MISSISSIPPI POWER & LIGHT COMPANY, Petiticner Vv UNITED GAS PIPE LINE COMPANY, PENNZOiL COMPANY, Respondents STATE OF MISSISSIPPI, Plaintiff-Intervenor PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT SHERWOOD W. WISE JOSEPH P. WISE WISE, CARTER, CHILD, STEEN & CARAWAY 925 Electric Building Post Office Box 651 Jackson, Mississippi 39206 CLAYTON L. ORN ANDERSON, BROWN, ORN & JONES 1122 Southwest Tower Houston, Texas 77002 Attorneys for Petitioner Mississippi Power & Light Company ES SS eA Alpha Law Brief Co., One Main Plaza, No. 1 ‘ain St., Houston, Texas 77002 ee (Giteeecns SI I Si si cede tie ee sie ccesdccccctccecces ED Grd hd neue uh cn bavvcessdddectesésesdees PEL. bodentd nue cdbheeesdetdethaneneéobuens coke Reasons for granting the writ ............ceccesceecees SD 0 dan cccutadsaceodkcddvsdwteeteks cececcnase: Appendix A — Opinion of Court of Appeals .............. Appendix B — Order of Court of Appeals of May 28, 1975 Granting Leave To Appeal From Order of gerry errr Appendix C -— Judgment of Court of Appeals ........... Appendix D— Order of Court of Appeals Denying Peti- SS GE EEE. 6 occ ccedsasteccsccees Appendix E— Order of District Court Denying Motions to Dismiss and Granting Motions to Stay Appendix F — Memorandum Opinion of District Court ... Appendix G—-Complaint of Mississippi Power & Light GE écevngecesesccceceeoceseqesés Appendix H — Order of District Court Granting Motion of State of Mississippi for Leave to Intervene Appendix I— Complaint in Intervention of State of Mis- GE. we cancnccdncccceccocasasceueens Appendix J— Motion of United Gas Pipe Line Company To Dismiss or Alternatively To Stay All EE Oevncceccennecessasceness eens Appendix K — Motion of Pennzoil Company To Dismiss or Alternatively To Stay All Proceedings .... Appendix L— Answer of United Gas Pipe Line Company Appendix M — Answer of Pennzoil Company ........... Appendix N—FPC Order Partially Granting Petition for Declaratory Order and Motion to Consolidate A22 A23 A25 A27 A29 A32 A100 Al0l A103 A107 All2 Al42 A154 II Appendix O — Findings and Conclusions of The United States Court of Appeals For the Fifth Circuit in Southern Natural Gas Company et al v. PUG. 6Wenesacsennncccacececcedaededey Appendix P — F.P.C. Order Implementing Court Order and ED EEE ccc ces cuevascccncess CITATIONS : CASES Bisso v. Inland Waterways Corp., 349 U.S. 85 .......... Breen Air Freight, Ltd. v. Air Cargo Inc., 470 F.2d 767 Brown & Sons Lumber Co. v. Louisville & N. R. Co., 299 ks le DO 6 hne5h 606s 0h 0bedneedebtseesencendees Civil Aeronautics Board v. Modern Air Transport, 179 F.2d se eg an le ee ac rk County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, POONE. 1ncd cde cecesecctececedndeseaeciccsdbeponss Fairfax Gas & Supply Co. v. Hadary, 151 F.2d 939, 941 FPC v. Louisiana Power & Light Co., 406 U.S. 621 (1972) Gordon v. New York Stock Exchange, 422 U.S. 659, 686-690 Great Northern Railway Co. v. Merchants Elevator Co., 259 a Bis SED nbdbeeccnccccdccgnsensscopsnacncecets Gulf Oil Corp. v. American Louisiana Pipe Line Co., 282 Seee -dnucevdees det cheaducbeteadesdvekwan vesdex International Paper Co. v. Federal Power Commission, 476 Sle Be. 006960 00ced000006nn Comeedsbetuanaseenesee Landis v. North American Co., 299 U.S. 248, 265 ....... Louisiana Power & Light Co. v. Federal Power Commission, ee Se Gy TE kvieucesesahes eévensndudeanedscac Meat Cutters Union v. Jewel Tea Co., 381 U.S. 676, 684 Merle E. Rowan v. Allied Chemical Company, 39 FPC 64 Mississippi Public Service Commission v. Federal Power Commmeianm, SOB FG BOGS ccccccdccesccccccscceses Monsanto Company v. Federal Power Commission, 463 F.2d TO, Geo cccvendisecedndstcenviass svescesantecsss Nader v. Allegheny Airlines, Inc., 96 S. Ct. 1978, 48 L.Ed. Be MD io cuckedhadece sl euessesaeesnbecéesceuneeeen’ Pan American P. Corp. v. Superior Court, 366 U.S. 656, GD xv veticecesusece venseasenbetsneusdananaekar Page Al6l A169 9,11 9,18 7,19 14, 18 6,7, 10 Ill CASES Page Panhandle Eastern Pipe Line Co. v. Public Service Commis- et ee Ee ED 6 0caescd scenes cosscccess 7 Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 304 7,16 Sey Ge GR. TG. Fite GOO Pete BFE ccccccccccescccces 14 State of Louisiana v. Federal Power Commission, 503 F.2d MEE Ken eeecnncedceccgsenesncdsecesecocece 9, 18 Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. SL EE snes néhedeeel ened uWkdenenenenrestecsesescs 14 Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. SP whnwhes 6dbbus 650 096666 6d06dRdR dese Sov eereeeece 10 United States v. Western P. R. Co., 352 U.S. 59, 69 ..... 13 Warren Petroleum Corp. v. FPC, 282 F.2d 312 ........... 14 World Airways, Inc. v. Northeast Airlines, Inc., 349 F.2d PET co checccccecevccccdvenésaasasccececcooocccees 14 STATUTES AND REGULATIONS Natural Gas Act, 52 Stat. 821: NS IE SAE ED 2, 3,8 Sec. 21, 22, 15 U.S.C. 717(t), 717(u) ......eceeeeeees 15 wa eat 2 a caeeuiace’ 3 Constitution of the United States: i er ee, 2 ee. 6 edieuubeseececccdctencescees 9,10 Supreme Court of the United States OCTOBER TERM 1976 NO. MISSISSIPPI POWER & LIGHT COMPANY, Petiiioner Vv. UNITED GAS PIPE LINE COMPANY, PENNZOIL COMPANY, Respondents STATE OF MISSISSIPPI, Plaintiff-Intervenor PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Mississippi Power & Light Company (MP&L) petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINION BELOW The opinion of the Court of Appeals (App. A, infra, pp. Al-A21) is reported at 532 F.2d 412. 2 JURISDICTION The judgment of the Court of Appeals (App. C, infra, pp. A23-A24) was entered on May 27, 1976. MP&L’s timely petition for rehearing was denied on September 27, 1976. (App. D, infra, pp. A25-A26). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a common-law action by an electric utility against a jurisdictional gas pipeline for the tortious making and breaking of a long-term contract for the direct (non- jurisdiction) sale of natural gas should have been stayed pending reference to the Federal Power Commission for a determination whether the contract was tortiously made and breached, and if it was whether the Commission could approve a tariff filing by the pipeline which would exculpate it from liability. 2. Whether the stay while the Commission decides “a major part of the litigation”, and makes “all findings that it believes will aid the prompt resolution of the dispute” has been kept in the bounds of moderation, or is a denial of that promptness of decision which in all judicial actions is one of the elements of justice. STATUTE INVOLVED Section 1(b), 15 U.S.C. 717(b) of the Natural Gas Act, 52 Stat. 821 (1938) which provides: “The provisions of this act shall apply to the trans- portation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to 3 natural gas-companies engaged in such transportation or sale, but shall not apply to any other transpor- tation or sale of natural gas or to the local distribu- tion of natural gas or to the facilities used for such distribution or to the production or gathering of nat- ural gas.” STATEMENT Petitioner Mississippi Power & Light Company (MP&L) brought this action on August 30, 1974 against United Gas Pipe Line Company (United) and Pennzoil Company (Pennzoil) to recover damages in the sum of $160 million for United’s breach of a long-term gas sales contract entered into on Decémber 28, 1967. MP&L alleged that United represented that it would be able to — perform its obligations under the contract; that the repre- sentation was false, and that MP&L, believing it to be true, expended large sums of money in constructing and maintaining power plant facilities designed to burn natural gas as a primary fuel. MP&L also alleged that Pennzoil, the former parent of United, directed and induced United to breach the gas sales contract (App. G, infra, pp. A32- A90). The State of Mississippi’s motion to intervene as a party plaintiff was granted (App. H, infra, p. A100), and it filed its complaint in intervention, adopting MP&L’s com- plaint in its entirety (App. I, infra, pp. A101-A102). Jurisdiction of the district court was invoked on the ground of diversity of citizenship, 28 U.S.C. 1332(a)(1). United and Pennzoil filed separate motions to dismiss MP&L’s complaint, or alternatively to stay the action (App. J, infra, pp. A103-A106; App. K infra, pp. AiO7- A111). They gave as grounds for their motions that the 4 complaint raised numerous issues within the competency and primary jurisdiction of the Federal Power Commis- sion. Following oral argument on the motions, the District Court ordered United and Pennzoil to file answers, which they filed on March 24, 1975 (App. L, infra. pp. A112- Al41; App. M, infra, pp. Al42-A153). The District Court thereafter in a memorandum opinion delivered on April 2, 1975 denied the motions to dismiss, but granted the motions to stay (App. F, infra, pp. A29-A31). It accordingly entered an order to that effect on April 4, 1976 (App. E, infra, pp. A27-A28). In the memorandum opinion the District Court stated that MP&L’s common law action for damages was oc- casioned and necessitated, according to MP&L’s conten- tions, by the misfeasance of United and Pennzoil, in that United knowingly and deliberately oversold its supply of natural gas well knowing that the ultimate effect would be an insufficient supply of gas to discharge its contrac- tual obligations to MP&L. It concluded, though, that the Federal Power Commission probably had jurisdiction of MP&L’s action, and that for that reason the District Court should defer to the Commission a decision of the controversy. It stayed the action to await a decision of the Commission as to its primary jurisdiction. While the Court of Appeals held that the District Court “acted properly in staying the procedures and in referring the case to the Federal Power Commission so that that agency might exercise primary jurisdiction” it also held that on remand “the District Court should prepare an order which outlines with some specificity both the pro- ceedings before the Commission that should be con- 5 cluded before the damage litigation should continue and the issues upon which the Commission’s opinion is sought” (App. A, infra, p. A21; p. Al9). Consequently it re- manded with direction the case to the District Court for the limited purpose of that Court modifying its stay order (id, p. A21). Even so, though, the Court said “For a court to attempt to determine whether it or the FPC had final authority over all aspects of the damage action on the record before the District Court would be singularly unwise”; (id. p. Al7) and that “By requiring the Dis- trict Court to prepare an order in which certain issues are referred to the FPC, we do not intend to unduly restrict that agency’s ability to assist the District Court. The agency is free to make all findings that it believes will aid the prompt resolution of the dispute”. (id, p. A19, n.14). The Court of Appeals, however, in attempting to deter- mine the aspects of the damage action which it believed an informed opinion of the Commission would be of ma- terial aid to the District Court, discussed what it con- sidered were five components of the dispute. (id, pp. A16-Al7). It held that the Commission could determine whether a tariff provision, such as Section 12.3 proposed by United, would immunize United from liability and provide it with a defense to the action by MP&L. (id, p. A 16). It pointed to its opinion in State of Louisana v. Federal Power Commission, 503 F.2d 844, 865-868 (1974) where it, in reversing a curtailment order of the Commission, also reversed a holding of the Commission that the cur- tailment order would provide an absolute defense to the damage actions against United, rendering unnecessary an exculpatory tarit, such as Section 12.3 proposed by United. (id, p. A7). 6 The Court of Appeals referred to a petition for declara- tory order filed by United with the Commission a day or two before oral argument in the District Court on the motions to dismiss or alternatively to stay. It concluded that the Commission had not clearly articulated what, if any, its action would be on United’s petition. (id, p. A8). The Commission’s order clearly shows it will not determine whether United’s shortage was caused by negligent or willful misconduct on United’s part (App. N infra, pp. A154-A160). Other determinations which the Court of Appeals ex- pressed the belief might be of aid to the District Court will be discussed under reasons for granting the writ. Suffice it to say the Court said that “referral encompasses the major part of the litigation”. (App. A, infra, p. A20). REASONS FOR GRANTING THE WRIT 1. The Court of ‘Appeals decided in a way in conflict with the decision of this Court in Nader v. Allegheny Airlines, Inc., U.S. ___. (1976), 96 S.Ct. 1978, 48 L.Ed.2d 643' an important federal question regarding the primary jurisdiction of the Federal Power Commission of a common-law action for fraudulent misrepresentations which induced the plaintiff to enter into a long-term natu- ral gas sales contract with the defendant. Even if the Commission’s informed opinion might “be of material aid in the resolution of the damage action”, as the Court of Appeals opined, that is not adequate grounds for referring this action to the Commission for 1. Although Nader was decided after the Court of Appeals de- livered its opinion on May 27, 1976, MP&L in its motion for rehear- ing, urged the Court to follow federal law laid down in Nader. 7 trial and decision. In Ricci v. Chicago Mercantile Ex- change, 409 U.S. 289, 304 (1973) the majority of a 5-4 divided court said that although it need not finally define the administrative jurisdictional issue, nevertheless in order for a governmental agency to exercise primary jurisdiction, there must be sufficient statutory support for it to decide the issues referred to it. And in Meat Cutters Union v. Jewel Tea Co., 381 U.S. 676, 684 (1965) it said that the primary jurisdiction doctrine comes into play only when enforcement of the claim in a court “requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” The Natural Gas Act has not placed within the special competence of the Federal Power Commission a common- law action involving the question whether a jurisdictional pipeline falsely misrepresented its gas supplies in order to induce an electric utility to enter into a long-term gas sales contract. Indeed the Act does not even confer juris- diction of the direct sale on the Federal Power Commis- sion, Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U.S. 507, 516-517 (1947). Nor does the Act abrogate state law claims, such as the claims of MP&L. MP&L’s claims, as were those in Nader, and the statute (here the Natural Gas Act) are not “absolutely inconsistent.” They, too, may coexist. MP&L has not sought to restrain the Commission or United from curtailing deliveries of gas to it, nor has it interfered with the Commission in the exercise of its curtailment jurisdiction. The curtailment orders are not the gravamen of MP&L’s claim. They were issued because United could no longer meet its contractual obligations. MP&L’s claim is for United’s false misrepresentations of the adequacy of its gas supplies. Whether United falsely misrepresented the adequacy of its gas supplies is not an issue in the curtailment proceedings. The power of the Commission to issue curtailment orders stems from its transportation jurisdiction under Section 1(b). This limited jurisdiction does not vest the Commission with authority to determine whether false misrepresentations were made in a nonjurisdictional sale of natural gas. 2. The Court of Appeals, in holding that the Com- mission’s resolution of five specific components of the dispute, will materially aid the District Court has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s power of supervision. First, the Court of Appeals has incorrectly held that a component of the dispute is the cause of United’s short- age. Even if it were necessary to determine the facts and circumstances giving rise to United’s gas shortage, a determination could be made only on the basis of evidence received at a public hearing; and this would be true whether the determination was made by the Commission or a District Court.* The Commission’s expertise would not be a deciding factor. Courts have greater expertise than the Commission in weighing conflicting testimony, and in resolving common-law actions involving applica- 2. The Court of Appeals says that the Commission is reviewing the facts and circumstances that resulted in the shortage in order to determine what is a fair, equitable, permanent curtailment plan (App. A, infra, pp. Al5-A16). The Court is mistaken. The Commis- sion is engaged in determining, in context of a curtailment plan, whether a curtailment plan is unduly discriminatory which does not place in the lowest priority new and enlarged service initiated at a time when United knew it would soon be curtailing (App. N, injra, p. A158). 9 tion of state law. Moreover, courts are unbiased in actions against regulated industries.° The cause of United’s gas shortage in the context of the damage suit is a matter for the courts, and in the end must be determined by the courts, Gordon v. New York Stock Exchange, 422 U.S. 659 (1975). The Court of Appeals was mistaken when it said that the Commission had not clearly articulated what, if any, its action would be on United’s petition for declartory order. The petition was filed in an effort to persuade the Commission to decide MP&L’s claims (App. A, infra, p. A8). The Commission declined to issue a declartory order on three of the four issues, One of the issues it refused to include in its order was whether United’s shortage was caused by its willful misconduct. This is unmistakably shown by the following concluding para- graph: “Good cause has not been shown for granting United’s petition for declaratory order and motion to consolidate, except as to the consolidation of the issue of the effect of United’s tariff Section 12.1 on its general liability to curtail direct sales customers.” (App. N, infra, p. A160). The Court of Appeals gives as a reason for referral, “no federal policy or statute entrusts the decision to courts in the first instance”, (App. A, infra p. Al7). The action, in the constitutional sense, is a case or controversy within the jurisdiction of the courts, Art. III Sec. 2 Cl. 1 Con- 3. In International Paper Co. v. Federal Power Commission, 476 F.2d 121, 125-126 (Sth Cir. 1973) and State of Louisiana v. Federal Power Commission, 503 F.2d 844, 865-866 (Sth Cir. 1974) the court reversed decisions of the Commission exonerating United from liability on the ground of no record support, and further on the ground that United might be liable for creating the need to curtail. 10 stitution of the United States. Courts have traditionally exercised jurisdiction of actions for false representations. It is not a question of whether a statute has entrusted a decision to the courts in the first instance, but whether a Statute has entrusted a decision to the Federal Power Commission. Second, the Commission cannot accept a tariff exculpat- ing United from past liability for false misrepresentations. The Natural Gas Act does not abrogate state-law or common-law claims, nor does it authorize the Commission to immunize a jurisdictional pipeline from claims arising after, or even before the wrong was committed. No power to immunize can be derived from the Commission’s au- thority to curtail under its transportation jurisdiction. The power to curtail is not coextensive with the right to vindicate a wrong under state law. As was pointed out in Nader, where Congress has sought to confer the power to immunize “it was done so expressly.” It was there said: The Court [Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426] conceded that a common-law right, even absent a saving clause, is not to be abrogated “unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent Statute of its efficacy; in order words, render its provisions nugatory.” Whether the Natural Gas Act authorizes the Com- mission to approve, as a part of a curtailment plan, a tariff provision, such as proposed Section 12.3, which would exculpate United from liability for state-law or common-law claims is a question of law for the courts and not the Commission. 11 The decision of the Court of Appeals is in conflict with the principle announced in Gordon v. New York Stock Exchange, 422 U.S. 659, 686-690 (1975). There the Court held that in a treble damage antitrust suit the question whether the system of fixed Commission rates, over which the Securities and Exchange Commission had active supervision under the Securities Exchange Act, was beyond the reach of the antitrust laws, was a question of law for the courts to decide, and in particular for the court in which the antitrust claim was raised. The decision of the Court of Appeals is also in conflict with the principle enunciated in Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F.2d 767 (2nd Cir. 1972) cert. den. 411 U.S. 932 in which it was held that in a treble damage antitrust suit where the issue was whether agree- ments approved by the Civil Aeronautics Board (CAB), immunized an air carrier from antitrust violations, the courts would determine in the treble damage action whether the agreements approved by the CAB met the requirements of 49 U.S.C. Section 1384, which relieves air carriers from antitrust laws on agreements between air carriers approved by the CAB. It was there said at p. 774 “Finally, we see no need to direct the district court to stay, in its discretion, the proceedings in court pending administrative action by the CAB. The issues are not technical in nature, and there is no need to seek uniformity. Compare Trans World Airlines, Inc. v. Hughes, supra, with Pan American World Airways, Inc. v. United States, supra. Furthermore, the CAB cannot award damages, the only relief which the plaintiffs request. Apgar Travel Agency v. International Air Trans. Association, 107 F. Supp. 760, 711 (SDNY 1952); Slick Airways, Inc. v. 12 American Airlines, Inc., 107 F. Supp. 199, 211 (D.N.J. 1952). Whenever possible courts shoul avoid duplicated or drawnout proceedings. The ef- ficient administration of justice demands it. See Allied Air Freight, Inc. v. Pan American World Airways, Inc., supra, 393 F.2d at 445; Japan Line, Ltd. v. Sabre Shipping Corporation, 407 F.2d 173 (2 Cir.), cert. denied, 395 U.S. 922, 89 S.Ct. 1774, 23 L.Ed.2d 239 (1969). Likewise, whether the Commission can approve a tariff provision exculpating United from past liability for false misrepresentations is a question of law for the courts and not the Commission. Public utilities cannot by tariff or contract escape liability for their own negligence, false misrepresentations or past wrongs. Bisso v. Inland Water- ways Corp., 349 U.S. 85, 91-94 (1955); Fairfax Gas & Supply Co. v. Hadary, 151 F.2d 939, 941 (4th Cir. 1945); 175 A.L.R. 38-74. Nothing, therefore, would be gained by awaiting a decision of the Commission on the proposed Section 12.3 tariff provision. Approval or disapproval of an exculpa- tory tariff provision is not a matter within the discretion of the Commission.* Nor would anything be gained by awaiting a decision of the Commission as to whether Section 12.1 of United’s tariff exculpates United from liability for false misrepre- 4. In Pan American P. Corp. v. Superior Court, 366 US. 655, 665-66 the Court held that a pipeline company could recover an overcharge under a gas purchase contract in an action filed in a state court, even though the contract had been filed as the producer’s sate schedule. It said that the rights under the contract were “traditional common law claims” and they did not “iose their character because it is common knowledge that there exists a scheme of federal regula- tion of interstate transmission of natural gas.” 13 sentations. United must not believe that Section 12.1 exculpates it, otherwise it would not have urged the approval of proposed Section 12.3. Mr. Justice Brandeis, speaking for a unanimous court in Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 290 (1922), said: “Every question of the construction of a tariff is deemed a question of law; and where the question concerns an interstate tariff it is one of federal law” (Emphasis added). He went on to say at p. 294, that “The task to be performed is to determine the meaning of words of the tariff which were used in their ordinary sense and to apply that meaning to the undisputed facts. That operation was solely one of construction; and preliminary resort to the Commission was, therefore, unnecessary.” The rule laid down in Great Northern was reaflirmed in United States v. Western P. R. Co., 352 U.S. 59, 69 (1956) and Brown & Sons Lumber Co. v. Louisville & N. R. Co., 299 U.S. 393, 397 (1937). It was said in Civil Aeronautics Board v. Modern Air Transport, 179 F.2d 622, 624 (2nd Cir. 1950), that “it has been con- tinuously asserted that courts have original jurisdiction to interpret tariffs, rules, and practices where the issue is one of violation, rather than reasonableness.” The reasonable- ness of Sections 12.1 and 12.3 is not an issue in MP&L’s action. Third, the gas sales contract, if it need be construed, should not be referred to the Commission for construction, but should be construed by the courts. It is a Mississippi contract, and must be construed under the laws of that State and in accordance with the canons of contract con- struction. A construction of the contract by the Commis- 14 sion would not be binding on the courts.’ Moreover in Merle E. Rowan vy. Allied Chemical Corp., 39 FPC 64 (1968) the Commission declined to decide contract ques- tions referred to it by a federal district court on the ground that it was not the policy of the Commission to decide contract questions involved in a lawsuit being tried by a court. The Court of Appeals clearly departed from the accepted and usual course of judicial proceedings when it held that questions regarding the interpretation of a Mississippi contract for the nonjurisdictional sale of nat- ural gas should be referred to the Commission. Fourth, the Court of Appeals concluded that a fourth component of the dispute which should be referred to the Commission is MP&L’s request for compensation from the customers of United who receive higher priorities. The Court had reference to its opinion in Mississippi Public Service Commission v. Federal Power Commission, 522 F.2d 1345 (Sth Cir. 1975) cert. den. 50 L.Ed. 149 (1976) where it held that the imposition of compen- sation payments as a condition for the receipt of higher priority gas is within the statutory power of the Commis- sion over the movement of such gas in interstate com- merce. MP&L and the Mississippi Public Service Commission have not asked that the compensation plan be made retro- active. If a plan were adopted, as a part of a curtailment program, it could not apply retroactively to curtailments 5. Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 270 (1960); World Airways, Inc. v. Northeast Airlines, Inc., 349 F.2d 1007, 1011-1012 (1st Cir. 1965), cert. den. 382 U.S, 984; Skelly Oil Co. v. FPC, 532 F.2d 177 (10th Cir. 1976); Gulf Oil Corp. v. American Louisiana Pipe Line Co., 282 F.2d 401 (6th Cir. 1960); Warren Petroleum Corp. v. FPC, 282 F.2d 312 (10th Cir, 1960). 15 under prior plans because reparations are impermissible under the Natural Gas Act.* A plan, if included in a permanent curtailment program for United’s system, would not immunize United from liability for accrued damages suffered by MP&L. It might, at the most, reduce future damages by the increased amounts paid by high priority customers to United for the credit of MP&L and other low priority customers. Consequently the trial of this action for damages already suffered should not be stayed until all of the issues in a permanent curtailment program are tried and decided by the Commission and the courts on petitions for review. Fifth, the Court of Appeals would refer to the Com- mission for determination whether the payment of dam- ages for false misrepresentations might “significantly affect the allocation decision.” There is no nexus between claims for false misrepresentations and the Commission’s power to curtail, or its power to determine the order of priority of service. MP&L’s common-law claims should not be extinguished on some theory that if United were held liable it might violate the Commission’s curtailment orders in an effort to mitigate the damages by delivering MP&L greater volumes of gas than it was entitled to under the curtailment orders. A reduction in liability to one customer would expose United to liability to customers who were excessively or unlawfully curtailed. Moreover, a violation of the curtailment orders would expose United to heavy criminal penalties under Sections 21 and 22, of the Natural Gas Act, 15 U.S.C. 717t, 717u. 6. In F.P.C. v. Louisiana Power & Lighi Co., supra, the Court, in upholding the curtailment jurisdiction of the Commission said in 406 U.S. at p. 644; “In addition a prescribed remedial order can have only prospective application.” 16 3. The stay has not been kept within the bounds of moderation. As was said in Landis v. North American Company, 299 U.S. 248, 265 (1936) “The limits of a fair discretion are exceeded.” The stay also, as was said in County of Allegheny v. Frank Mashuda Company, 360 U.S. 185, 196-197 (1959) denies “that promptness of decision which in all judicial actions is one of the elements of justice”. In Ricci v. Chicago Mercantile Exchange, supra Justices Marshall, Douglas, Stewart and Powell, in their dissents, said in 409 U.S. at pp. 320-321 “And surely the right to a ‘meaningful opportunity to be heard’ comprehends within it the right to be heard without un- reasonable delay”. It is self-evident that a referral of this action to the Commission for it to determine “a major part of the liti- gation” and make all findings “that it believes will aid the prompt resolution of the dispute” will unduly delay a trial in the District Court. First, the District Court, under the opinion of the Court of Appeals, must prepare an order which outlines with some specificity both the proceedings before the Commission that should be concluded before the litigation can continue, and the issues upon which the Commission’s opinion is sought. Such an order could be prepared only after an evidentiary hearing for the Court of Appeals said that it would be singularly unwise for a court to attempt to determine whether it or the FPC had final authority over all aspects of the damage action on the record before the District Court. Second, the Commission would need to determine, after notice and hearing, which of the issues referred to it by the District Court it had an adequate staff and the ex- pertise to make the determinations. It also would have to determine whether there were other issues it could try ¥ one ainrenhCndll 17 where its findings might in its opinion aid the court in resolving the dispute. Of even greater importance it needs to decide whether the new issues could be determined without unduly delaying a resolution of the issues for which the proceedings were instituted. Third, the Commission would have to find a time when it could try the damage suit issues without interferring with its statutory duties. Fourth, the Commission would then have to try and determine the damage suit issues. Fifth, then there would be the delay incident to an appeal to the court of appeals of the Commission’s find- ings and order. With all of this delay, still the Commission would not have jurisdiction to right the wrongs done MP&L and its customers. Moreover the District Court held in its memo- randum (App. F, infra, p. A30) that the findings and determination of the Commission would not be binding on the courts in the damage suit actions.’ However the Court of Appeals cautioned “We have been careful not to articulate the exact effect of the findings of the Com- mission upon the subsequent litigation. . . . We believe that it is singularly inappropriate to determine at this point in this complex litigation what the effect of the Commission’s decision will be before the nature and extent of the Commission’s action is ascertainable”, App. A, infra, p. A20. Trial of the damage suit issues before the Commission may, therefore, be an exercise in futility. 7. In Monsanto Company v. Federal Power Commission, 463 F.2d 799, 807 (D.C. Cir. 1972) it was held that the FPC’s determination would only be “advisory”. 18 The Fifth Circuit in Louisiana Power & Light Com- pany, supra, said in 526 F.2d at p. 910: “The Commis- sion’s delay in acting on a permanent plan for the United system is, of course, discouraging.” It also said in State of Louisiana, supra, 503 F.2d at p. 864: FPC should bear in mind that the question is not whether United should ‘bear responsibility for the shortage on its system’; rather it is who would get the gas that is now available. FPC seems to have been concerned with deciding the issue of United's culpability. It would seem to us that that question should be resolved in a damage suit. The Federal Power Commission has not yet concluded hearing commenced on December 21, 1970 for the pur- pose of delineating a permanent curtailment plan for United. Its curtailment orders have been reviewed and reversed in International Paper Company v. Federal Power Commission, 476 F.2d 121 (Sth Cir. 1973); State of Louisiana v. Federal Power Commission, 503 F.2d 844 (Sth Cir. 1974); Mississippi Public Service Commission v. Federal Power Commission, 522 F.2d 1345 (Sth Cir. 1975); and Louisiana Power & Light Company v. Federal Power Commission, 526 F.2d 898 (Sth Cir. 1976). The failure of the Commission to obey the mandate of the Fifth Circuit in Louisiana Power & Light Company v. Federal Power Commission, supra, resulted in the Court entering an order on November 13, 1976 modifying an interim curtailment plan for United’s system, and directing obeyance of the Court’s mandate. (App. O, infra, pp. A161-A168). The Commission by order issued November 24, 1976 has taken steps to deter- mine, as the Court had mandated, whether to continue in RMS Eee ue io we oa? en ee 19 force the four-priority plan, which the Fifth Circuit held had not been lawfully vacated, or to vacate the plan (App. P, infra, pp. A169-A171). Referral to the Com- mission of common-law damage action issues to be tried and decided in the curtailment proceedings will further delay the delineation of a permanent curtailment’ plan for United’s system. The Commission is understaffed and overworked.” The need to expeditiously resolve the issues in this lawsuit greatly outweighs any aid the FPC may be able to give the District Court.’ This case has now been pending for more than two years, and the curtailment proceedings for more than six years, but the Commission is still attempting to deline- ate a permanent curtailment plan for United. The evi- dentiary record in the curtailment proceedings (RP71-29 et al Phase II) was recently closed on December 2, 1976. The record contains 24,621 pages of testimony and 852 exhibits. Relatively short briefing schedules have been set by the Presiding Administrative Law Judge. Obviously 8. The Chairman of the Commission in testifying before the Senate Committee on Government Operations on May 27, 1976 said that in January 1976 10,480 cases were pending before the Com- mission; that the number had grown to 11,426 cases at the end of February and to 14,454 cases at the end of March 1976. He testified that the Commission was able to decide about 62 cases per week or about 3,224 per year. He said the Commission was on a treadmill and rapidly going backward; that the “system is in serious danger of breaking down.” Obviously, the Commission is already four or five years behind with its docket and getting further behind each month. 9. The Courts must always balance the benefits of seeking agency’s aid with the need to resolve disputes fairly yet as expeditiously as possible. Meat Cutters Union v. Jewel Tea Co., 381 US. 676, 686 (1965). 20 the damage suit issues cannot be tried in that proceeding. Trial of United’s petition for a declaratory order (Phase III) has not commenced, but as pointed out earlier, supra, p. 6, p. 9 the Commission has declined to issue a declara- tory order on three of the four issues raised by United (App. N, infra, pp. A154-A160), leaving only the ex- culpatory tariff questions for determination. The stay has not been kept within the bounds of moderation, and MP&L has been denied promptness of decision which in all judicial actions is one of the elements of justice. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, SHERWOOD W. WISE JosEPH P. WISE WIsE, CARTER, CHILD, STEEN & CARAWAY Post Office Box 651 925 Electric Building Jackson, Mississippi 39206 CLAYTON L. ORN ANDERSON, BROWN, ORN & JONES 1122 Southwest Tower Houston, Texas 77002 Attorneys for Petitioner Mississippi Power & Light Company Al APPENDIX A MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff-Appellant v. UNITED GAS PIPELINE COMPANY et al., Defendants-Appellees, STATE OF MISSISSIPPI, Plaintiff-Intervenor. No. 75-2316. UNITED STATES COURT OF APPEALS Fifth Circuit. May 27, 1976 Utility brought action against pipeline company and its former parent for breach of contract. The United States District Court for the Southern District of Mississippi at Jackson, William Harold Cox, J., granted stay of all pro- ceedings to await response of the Federal Power Commis- sion as to its primary jurisdiction of curtailment question and utility appealed. The Court of Appeals, Lewis R. Morgan, Circuit Judge, held that referral was appropriate inasmuch as FPC was presently resolving issues related to curtailment plans, FPC assistant would be of material aid to the District Court and the resolution of damage action and none of the factors mitigating applicability of the primary jurisdiction doctrine were preseat; and that District Court should have been more precise in its stay order by outlining with some specificity both the proceed- ings before the FPC that should be concluded before the damage litigation should continue and the issues upon which the FPC’s opinion was sought. Remanded with directions. A2 Appeal from the United States District Court for the Southern District of Mississippi. Before THORNBERRY, COLEMAN and MORGAN, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: This appeal involves another facet of the problems created by the nationl energy shortage. Specifically, this litigation was commenced by Mississippi Power and Light Co. (MP&L) for breach of contract against one of the major natural gas pipeline companies, United Gas Pipe- line (United) and its former parent, Pennzoil Co. Al- leging failure to supply the amounts of gas provided by the contract and basing its action solely on state law, MP&L brought a diversity action against United and Pennzoil in the United States District Court for the Southern District of Mississippi. After filing their answers, United and Pennzoil asserted the primary jurisdiction of the Federal Power Commission. The district court granted a stay of all proceedings “to await the response of the Federal Power Commission as to its primary jurisdiction of this curtailment question. . . .”’ MP&L appeals’ the 1. The district court order states in relevant parts: It is the opinion of this Court that under the Natural Gas Act that the Federal Power Commission probably has jurisdiction of this curtailment controversy, and that the Court at this time should defer to its decision as to the authority of the Commission in this controversy, which is in the process of being handled by that agency; and while the agency’s decision is not final and binding on the court, it must be sought at this time.* The motion of the defendants to dismiss will be denied. The motion to stay proceedings here to await response of the Fed- eral Power Commission as to its primary jurisdiction of this curtailment question will be granted. In the meantime, all other and further processes of this Court will be stayed to await the ultimate answer of the Commission as to this paramount and controlling question of law. * Federal Power Commission v. Louisiana Power & Light A3 district court’s order basically arguing that the Federal Power Commission does not have primary jurisdiction over any of the issues raised in this action. MP&L argues, moreover, that even if the FPC does have primary juris- diction, the district court erred in not making its order more specific by stating which issues should be referred to the FPC. Finally, MP&L objects to the district court’s stay of discovery. While we agree that the district court order should be more specific, we hold that the court was correct in staying the proceedings in order that the Federal Power Commission may exercise primary jurisdiction in this matter. I. THE CURTAILMENT CONTROVERSY: In order to more clearly understand the issues presented by this complex litigation, a review of the natural gas shortage controversy and the litigation accompanying it is helpful.’ Company, et al, 406 U.S. 621, 92 S.Ct. 1827, 1842, [32 L.Ed. 2d 369] the Court among other things held: “In that circum- stance, the District Court and the Court of Appeals were obliged to defer to the FPC for the initial determination of its jurisdic- tion. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The need to protect the primary authority of an agency to determine its own jurisdiction ‘is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the [agency]. While the [agency’s] decision is not the last word, it must assuredly be the first.’ ” 2. This court granted leave to appeal from an interlocutory order on May 28, 1975. 3. See, e. g., FPC v. Louisiana Power and Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972); Louisiana Power and Light Co. v. FPC, 526 F.2d 898 (Sth Cir. 1976); Fort Pierce Utility Authority of City of Fort Pierce v. FPC, 526 F.2d 993 (Sth Cir. 1976); Mississippi Public Service Commission v. FPC, 522 F.2d 1345 (Sth Cir. 1975); State of Louisiana v. FPC, 503 F.2d 844 (Sth A4 By the spring of 1971, several pipeline companies, in- cluding United, had notified the Federal Power Commis- sion that their supplies were inadequate to meet commit- ments to their customers. United, as well as other pipeline companies, proposed to meet this shortage situation by instituting curtailment plans that would allocate the avail- able gas among their customers. Most of these plans had been adopted by the pipelines during a temporary short- age created by the Korean war. Needless to say, these plans were often unsuitable as a method of curtailing supplies during the present period of continual and severe shortage. The FPC, in Order No. 431,* Statement of Gen- eral Policy, ordered the pipelines to institute all necessary steps to alleviate the shortage and to submit new tariffs which would incorporate revised curtailment plans. Under United’s temporary curtailment plan filed pursuant to Order 431, MP&L, a utility who used natural gas as a fuel to generate electricity, was placed in the category to be curtailed first.’ Therefore, MP&L has been receiving substantially less natural gas than it had before curtail- ment. The necessity for curtailment gave rise to two distinct problems. The first question was how much of the avail- able supply of natural gas each of the pipeline’s customers Cir. 1974); Atlanta Gas and Light Co. v. FPC, 476 F.2d 142 (Sth Cir. 1973); International Paper Co. v. FPC, 476 F.2d 121 (Sth Cir. 1973). 4. 49 FPC 85 (1973). 5. Originally, MP&L was given a preference over other customers. The Commission, however, ordered that utilities like MP&L be placed in the lowest priority for gas supplies. While this court has remanded to the Commission for further evidence on this point, the court has allowed United to operate through the present heating season under a plan that denied MP&L any priority. See Louisiana Power and Light Co. v. FPC, 526 F.2d 898 (Sth Cir, 1976). AS would receive. The second question was who would bear the economic consequences of the shortage. Those cus- tomers who were curtailed in whole or in part would have to seek alternative sources of energy which would gene- rally be available at significantly increased cost, and some- how this additional cost would have to be allocated. The various parties, therefore, sought to insure that others bore the financial burden of curtailment. United feared liability on two separate theories. First, a curtailed customer might bring a general breach of con- tract action alleging failure to deliver the amounts of gas stated in the contract. Second, a customer could bring an action under a specific clause—the substitute fuel clause— contained in many of United’s contracts, including its agreement with MP&L. That provision arguably requires United to compensate a customer for the additional cost of obtaining other types of fuel to meet the customer’s energy needs. While United contended that the substitute fuel clause did not apply in a general curtailment situation and if it did the language of the clause limited liability to the amount of fuel purchased by the customer for only a few days, should these contentions fail, United faced a possibility of over a billion dollars in liability. Even before suit was instituted, United sought by means of proceedings before the Federal Power Commission to insure that it would not bear the financial cost of curtail- ment. In 1970, United sought a declaratory order from the Commission which would hold that § 12.1 of its tariff on file with the Commission immunized United from liability. That section provided that curtailment could 6. See United Gas Pipe Line Company, FPC Docket No. RP71- 29. MP&L has contended from the beginning that no tariff provision can affect its agreements with United, A6 be instituted “without liability.” United also sought to file with the Commission proposed § 12.3 of the tariff that stated in relevant part, . nor shall seller (United) be obligated to pay or credit such customers any sums with respect to substitute fuels burned by such customers during such a period of proration or interruption. The Commission rejected United’s proposal in Opinion 606’ and stated that, implementation of the curtailment plan itself, pur- suant to our procedures, would be an absolute de- fense for United against all claim for specific per- formance, damages, or other requests for relief under these contracts affected by curtailment that may be initiated in the courts. In /nternational Paper Co. v. Federal Power Commission, 476 F.2d 121 (Sth Cir. 1973), however, this court vacated that statement in Opinion 606 as “mere dicta” totally lacking evidentiary support. /d. at p. 125. Subsequently, United resubmitted § 12.3, but in Opin- ion 647-A* the Commission again rejected United’s pro- posed exculpatory language. This time, the Commission reasoned that United would only be vulnerable under a general breach of contract theory if the curtailment had resulted from its own negligence, bad faith, or other wrongful conduct. The Commission had found, however, that United had not acted “improvidently” and that it would not therefore be held liable for damages. Next, the 7. 46 FPC 786 (1971); See also, Opinion Nos. 606-A, 46 FPC 1290 (1971). 8. 49 FPC 1211 (1973). See also, 49 FPC 179 (1973). A7 Commission stated that substitute fuel clauses required United at most to reimburse its customers the extra costs of substitute fuels for only “a maximum of seven days.” Then, the Commission opined that if a court found that the clause created “open ended” liability, the FPC would be “compelled to find such clauses are unduly preferential.” The Commission reasoned that the prospect of open ended liability might cause United to disobey FPC orders and in some way favor customers who had substitute fuel clauses in their contracts. Once again, in State of Louisiana v. Federal Power Commission, 503 F.2d 844 (Sth Cir. 1974), this court vacated the FPC’s findings. The court pointed out that the proper determination of whether United was liable for breach of contract absent an exculpatory tariff such as § 12.3 would be decided by a court in the contract actions. Then, the court found the FPC’s interpretation of the substitute fuel clauses to be an “assertion (which) cannot stand without supporting reasons.” Jd. at 868. Furthermore, the court instructed the FPC not to assume that United was not liable for breach of contract but to evaluate the proposed § 12.3 in light of possible con- tract liability. The court stated at page 867: We think the Commission should have determined what would happen with the proposed change in effect. Can a tariff provision remove general con- tractual liability? If the provision would remove liability, would the unavailability of damages subject United’s curtailed customers to ‘any undue prejudice or disadvantage?’ In short, since the Commission cannot adjudicate contract liability, it should evalu- ate section 12.3 on the assumption that United faces possible liability—not on the assumption it is immune, A8 In State of Louisiana, the court also reversed the Com- mission’s decision on various other aspects of United’s curtailment plan. On remand, the FPC established pro- cedures to meet the objections of this court.’ Part of these procedures, delineated Phase III by the Commission, were specifically designed to determine the advisability of adopting § 12.3 as a part of United’s tariff. At present, hearings are being conducted as a part of these Phase III proceedings. United also filed with the Commission on March 3, 1975, a petition requesting a declaratory order. Under United’s request, the Commission would determine, inter alia, (1) whether the availability of damages to some of United’s curtailed customers would create an undue prefer- ence in violation of the Natural Gas Act, (2) whether § 12.1 of United’s tariff would preclude liability to certain customers such as MP&L and (3) whether the shortage was caused by the negligence or willful misconduct of United. The Commission has not clearly articulated what, if any, its action will be on United’s petition.’ On August 5, 1974, Mississippi Public Service Com- mission (MPSC) filed a petition for extraordinary relief before the Commission on behalf of MP&L and other Mississippi utilities. In this petition, the utilities sought 9. Order on Remand Denying Motion for Immediate Modification of Curtailment Plan, United Gas Pipe Line Company, FPC Docket Nos. RP71-29 and RP71-120, March 7, 1975 on rehearing May 2, 1975. 10. See Order partially granting petition for declaratory order and motion to consolidate, United Gas Pipe Line Company, (Phase Ill) FPC Docket Nos. RP71-29, RP75-71, RP75-69, August 20, 1975; Supplemental Order modifying order issued December 9, 1975 and referring ruling to Commission for review, United Gas Pipe Line Company, (Phase III) FPC Docket Nos. RP71-29, RP75-69 and RP75-71, December 16, 1975. A9 compensation from those customers of United who re- ceived a higher preference for gas. Under their proposal, a customer who received full gas supplies would have to make payments to customers of United who had been curtailed. In this way, the utilities sought to allocate among all the customers of United the burden of cur- tailment. The Commission denied MPSC’s petition on the ground that it was without jurisdiction to require such compensation. This court in Mississippi Public Service Commission v. Federal Power Commission, 522 F.2d 1345 (Sth Cir. 1975), rejected the Commission’s jur- isdictional argument and remanded for determination of whether compensation payments should be a condition for receipt of a higher priority in a gas curtailment plan. On August 30, 1974, MP&L brought this present action against United and its former parent Pennzoil. As has been outlined above, MP&L sought damages of approxi- mately $160,000,000 from United for breach of contract. The district court stayed these proceedings pending the exercise of primary jurisdiction by the Federal Power Commission, and MP&L objects to that stay. Il. PRIMARY JURISDICTION: [1] The doctrine of primary jurisdiction has evolved as a means of reconciling the functions of administrative agencies with the judicial function of the courts.'' When 11. See generally, Travis, Primary Jurisdiction, A General Theory and Its Application to the Securities Exchange Act, 63 Calif. L. Rev. 926 (1975); Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037 (1964); Handler Regulation v. Competition, 44 U. Conn. L. Rev. 191 (1975); King, The “Arguably Lawful” Test of Primary Jurisdic- tion in Antitrust Litigation Involving Regulated Industries, 40 Tenn. L. Rev. 617 (1973); Robinson, Antitrust Developments: 1973, 74 Colum. L. Rev. 163 (1974); Note, Primary Jurisdiction in Antitrust Cases. Three recent decisions, 42 U. Cinn. L. Rev. 725 (1973). Al0 legal disputes develop that directly affect an industry sub- ject to regulation, the need arises to integrate the regula- tory agency into the judicial decision making process. One method to accomplish integration is to have the agency pass in the first instance on those issues that are within its competence. In short, the agency should have the first word. Marine Engineers Beneficial Assn. v. Inter- lake Steamship Co., 370 U.S. 173, 185, 82 S.Ct. 1237, 1243, 8 L.Ed.2d 418, 426 (1962). Reference to administrative agencies was first estab- lished in those cases where Congress by statutory pro- vision had allocated to the agency the power to con- clusively decide the contested issue. For example, the In- terstate Commerce Commission is the exclusive agency for determining the reasonableness of rates; therefore, a court must defer to that agency when a party challenges a rate in a legal proceeding. Texas and P. R. Co. v. Abi- lene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). Under this methodology, before in- voking the doctrine of primary jurisdiction it was impera- tive that the court determine whether the agency’s deci- sion would be definitive. There was the implication that if the agency’s conclusion did not finally resolve the issue, reference would not be warranted. Public Utilities Com- mission v. United States, 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 L.Ed.2d 470, 475 (1958); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 254, 71 S.Ct. 692, 696, 95 L.Ed. 912, 920 (1951). Applying the doctrine of primary jurisdiction only in those situations where the issue was solely within the agency's competence created difficulties in integrating the administrative agency’s position with the judicial process. First, the court would have to determine, often on the Al} barest of pleadings and in the most complicated litigation, to which decision making body—the court or the agency —Congress had allocated the resolution of the issue. Ad- ministrative jurisdiction, however, is difficult to determine without some factual underpinnings and often depends upon the particular context in which the issue arises. Cf. Federal Power Commission v. Louisiana Power and Light, 406 U.S. 621, 647, 92 S.Ct. 1827, 1841, 32 L.Ed.2d 369, 388 (1972). This difficulty in determining jurisdiction is particularly acute where the agency, such as the Federal Power Commission, has only a limited grant of jurisdic- tion from Congress. Compare Federal Power Commission v. Panhandle Eastern Pipeline Co., 337 U.S. 498, 69 S.Ct. 1251, 93 L.Ed. 1499 (1949), with United Gas Improve- ynent Co. v. Continental Oil Co., 381 U.S. 392, 85 S.Ct. 1517, 14 L.Ed.2d 466 (1965). Secondly, such limited invocation of the doctrine of primary jurisdiction would emasculate the agency’s ability to participate in those cases where a final decision was left to the courts even though the litigation had a profound impact on the regu- latory process. Therefore, the courts have often required the prior resort to an administrative agency before allow- ing the litigation to proceed.”* Recently, the Supreme Court has required reference to the relevant regulatory agency without even deciding whether that agency has jurisdiction to finally determine the basic dispute in the case. In Ricci v. Chicago Mercan- tile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973), the Court dealt with an antitrust complaint attacking a commodity exchange’s decision to transfer a membership of the exchange. The defendant had sought 12. Robinson, Antitrust Developments: 1973, 74 Colum. L. Rev. 163, 174-179 (1974). Al2 reference to the Commodity Exchange Commission, but there was considerable dispute over whether the Com- mission had jurisdiction to resolve the contested issues. The Supreme Court stated at page 304, 93 S.Ct. at page 582, 34 L.Ed.2d at page 537: We need not finally decide the jurisdictional issue for present purposes, but there is sufficient statutory support for administrative authority in this area that the agency should at least be requested to institute proceedings. The Court then went on to state that it was “very likely that a prior agency adjudication of this dispute will be a material aid in ultimately deciding” the issue. Jd. at 305, 93 S.Ct. at 582, 34 L.Ed.2d at 537. Even before Ricci, this court had mandated referral to the Federal Communication Commission even though that agency decision might not have been “the end to the matter.” Carter v. American Tel. & Tel. Co., 365 F.2d 486, 499 (Sth Cir. 1966). In Carter, we required that the doctrine of primary jurisdiction be invoked where there was only a “strong possibility” that the FCC decision would resolve the dispute. Jd at 497. See also, Southern Railway Co. v. Combs, 484 F.2d 145 (6th Cir. 1973). Also, this court had referred to the very agency involved in this litigation, the Federal Power Commission, the issue of whether a particular dispute was encompassed by that agency’s jurisdictional grant. J. M. Huber Corp. v. Den- man, 367 F.2d 104 (Sth Cir.. 1966); see also, Agri- cultural Trans. Assoc. of Texas v. King, 349 F.2d 873 (Sth Cir. 1965); Louisville and Nashville Railroad v. Knox Home, 343 F.2d 887 (Sth Cir. 1965). See also, A13 Monsanto Co. v. Federal Power Commission, 146 U.S. App.D.C. 396, 463 F.2d 799 (1972). [2] A court’s discretion to seek the administrative agency’s input in those cases where the agency will be a “material aid” to the ultimate decision is not unlimited. In this period of expanding federal regulation, there are few disputes in which reference to some federal or state agency might not conceivably be of material aid to the court."* As the Supreme Court stated in United States vy. Western Pacific Railroad Co., 352 U.S. 49, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litiga- tion. See also, Watts v. Missouri-Kansas-Texas Railroad Co., 383 F.2d 571, 581 (Sth Cir. 1967); CAB v. Modern Air Transp. Inc., 179 F.2d 622, 625 (2d Cir. 1950). [3-10] The courts should be reluctant to invoke the doctrine of primary jurisdiction, which often, but not al- ways, results in added expense and delay to the litigants where the nature of the action deems the application of the doctrine inappropriate. While one cannot easily recon- cile all the cases wherein referral was denied, there was a few general situations in which referral is often unwar- ranted. If, under no conceivable set of facts, the agency could immunize what would be a clear violation of fed- 13. King, The “Arguably Lawful” Test of Primary Jurisdiction in Antitrust Litigation Involving Regulated Industries, 40 Tenn. L. Rev. 617, 657 (1974). Al4 eral law, referral would be inappropriate. Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 78 S. Ct. 851, 2 L.Ed.2d 926 (1958). In implementing the na- tional policy of free competition as embodied in the anti- trust laws, the court normally should not defer where the issue is not dissimilar from that encountered in nonregu- lated industries. See United States v. Philadelphia National Bank, 374 U.S. 321, 339, 83 S.Ct. 1715, 1728, 10 L.Ed. 2d 915, 930 (1963); California v. Federal Power Com- mission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962). Deference is particularly inappropriate where the litigation deals with a single event which requires no con- tinuing supervision by the regulatory agency. Cf. Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). The nature of relief sought, moreover, is also relevant consideration in deciding whether to refer to the agency. The court in instituting injunctive relief may be able to provide ade- quate flexibility to coordinate its decision with subsequent regulatory action. Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). In addition, in those cases where Congress has determined by statute that the courts should decide the issue in the first instance, primary jurisdiction should not be invoked. Mercury Motor Express v. Brinke, 475 F.2d 1086 (Sth Cir. 1973). Likewise, when the agency’s position is suf- ficiently clear or nontechnical or when the issue is peri- pheral to the main litigation, courts should be very reluc- tant to refer. Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 941 (1922); Shew v. Southland Co., 370 F.2d 376 (Sth Cir. 1966); Strickland Transportation Co. v. United States, 334 F.2d 172 (Sth Cir. 1964). Finally, the court must Al5 always balance the benefits of seeking the agency’s aid with the uced to resolve disputes fairly yet as expedi- tiously as possible. Cf. Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 686, 85 S.Ct. 1596, 1600, 14 L.Ed.2d 640, 647 (1965); Foremost In- ternational Tours v. Quantas Airways Ltd., 525 F.2d 281 (9th Cir. 1975), petition for cert. filed, 44 L.W. 3533 (March 23, 1976). Ill. THE PRESENT LITIGATION: {11, 12] In this litigation, referral is particularly ap- propriate. While the Federal Power Commission’s juris- diction is somewhat limited, the Natural Gas Act, as in- terpreted by the Courts, has provided the Commission with the statutory basis for pervasive regulation of the curtailment question. See Louisiana Power and Light v. Federal Power Commission, supra; see also Fort Pierce Utility Authority v. Federal Power Commission, 526 F. 2d 993 (Sth Cir. 1976); Consolidated Edison Co. v. Fed- eral Power Commission, 168 U.S.App.D.C. 92, 512 F.2d 1332, modified, 171 U.S.App.D.C. 55, 518 F.2d 448 (1975). The Commission is presently involved in resolv- ing issues which have a direct impact on civil litigation in- volving curtailment plans. The advisability of invoking primary jurisdiction is greatest when the issue is already before the agency. Louisiana Power and Light v. Federal Power Commission, supra, at 910; Industrial Communica- tions System Inc. v. Pacific Tel. & Tel. Co., 505 F.2d 152, 157 (9th Cir. 1974); MCI Communications Corp. v. American Tel. & Tel. Co., 496 F.2d 214, 223-24 (3rd Cir. 1974). The Commission, moreover, is reviewing in some detail the facts and circumstances that resulted in the present shortage in order to determine what is a fair, Al6 equitable, permanent curtailment plan. Indeed, this court has already stated in a similar action that referral to the FPC is preferred. Atlanta Gas and Light Co. v. Federal Power Commission, 476 F.2d 142, 151 (Sth Cir. 1973). [13, 14] There also can be no doubt that the Com- mission’s informed opinion will be of material aid to the district court in the resolution of the damage action. In five specific components of the dispute the Commission’s assistance would be significant. First, the Commission can determine in detail the facts and circumstances that resulted in the severe shortage United is experiencing. Development of the factual context by those expert in the area, is an established basis for primary jurisdiction. Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). Second, the Commission could determine whether to accept an exculpatory tariff from United such as proposed § 12.3. In reaching this de- cision, the Commission could also determine whether a tariff provision can immunize United from liability and particularly whether such a tariff would provide United with a defense in this suit by MP&L. Certainly, the in- terpretation and implementation of a tariff is a question properly passed upon in the first instance by the Commis- sion, and reference by a court to a regulatory agency may not even be discretionary on such an issue. /nterstate Commerce Commission v. Atlantic C.L.R. Co., 323 U.S. 576, 600-601, 86 S.Ct. 1000, 1014-1015, 16 L.Ed.2d 109, 126 (1966); United States v. Western P. R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Watts v. Missouri-Kansas-Texas Railroad Co., supra. Third, the Commission’s interpretation of the United- MP&L contract provisions that might possibly limit dam- ages would aid a court in the ultimate decision. See, J. M. Al7 Huber Co. v. Denman, supra. Fourth, the Commission is presently reviewing a request by MP&L for compensa- tion from the customers of United who receive higher priorities. In that proceeding, MP&L seeks payment for some of the very damages which it claims in this damage action. Finally, the Commission could clearly articulate whether in its view the presence or absence of damages significantly affects the allocation decision. While the Commission has at times stated that it believes such an impact is evident, see, State of Louisiana v. Federal Power Commission, supra, referral of this damage action would give the Commission an opportunity to articulate its rationale and support it with relevant findings of fact. In short, there are several aspects of the damage action that the Commission decisions may either resolve for or, at a minimum, be of material assistance to the trial court. See, Ricci v. Chicago Mercantile Exchange, supra; Carter v. American Tel. & Tel. Co., supra. None of the factors mitigating the applicability of the primary jurisdiction doctrine are present. First, the cur- tailment question is extremely complicated, affecting energy policy throughout the entire nation. For a court to attempt to determine whether it or the FPC has final authority over all aspects of the damage action on the record, before the district court would be singularly un- wise. Second, here there are circumstances such as the addition of § 12.3 to United’s tariff that might immunize United from liability. Third, no federal policy or statute entrusts the decision to courts in the first instance. Cer- tainly, these curtailment damage actions are vastly dis- similar to the bulk of federal diversity contract litigation. Finally, the FPC has stated that damage actions could dis- rupt its resolution of the curtailment problem—a problem A18 which all parties agree is likely to be a continual difficulty for quite some time. In balance, we believe that the Com- mission’s assistance will be of “sufficient aid to the court that the action should not go forward without making reasonable efforts” to obtain the FPC’s assistance. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 115, 94 S.Ct. 466, 467, 38 L.Ed.2d 344, 347 (1973). MP&L’s reliance on our opinions in /nternational Paper, supra, and State of Louisiana, supra, for the propo- sition that no issue in this case is subject to the primary jurisdiction of the FPC is misplaced. There the court dealt with the Commission’s refusal to institute United’s proposed exculpatory tariff. The Commission, acting upon an inadequate evidentiary basis, had concluded that such a tariff was unnecessary because United was immune from damages. We vacated such statements by the Commission because they lacked evidentiary support. We also stated that the contractural liability of United, absent an excul- patory tariff, should be finally determined in a court of law. Nothing we said in either case, however, implied that although a court will make the final determination, that court could not and should not seek the Commission’s assistance pursuant to the doctrine of primary jurisdiction before resolving the litigation. [15] While we agree that the district court properly stayed proceedings pending the decision of the Federal Power Commission, we believe the district court should have been more precise in its order. The district court simply stayed all proceedings pending future action by the Federal Power Commission. In its present posture, the United proceedings before the Commission could ter- minate with several of the issues that might be relevant to the damage action still unresolved. For example, the Al19 Commission might determine that an exculpatory pro- vision such as proposed § 12.3 could not immunize United from liability and terminate all proceedings con- cerning the damage question. In such a situation, it would be even more important for the Commission to state its interpretation of United’s contract provisions. In addi- tion, the Commission is presently resolving the issues concerning the facts underlying United’s shortage in pro- ceedings intended to develop a permanent curtailment plan. We believe it would be beneficial for the Commission to address the issue of contract liability in a proceeding where the damage action was clearly before it. Reference by the district court of an order to the Commission which specifically outlines those issues in which the courts seeks assistance would provide the Commission with a context to focus on the damage action. Part of the difficulty that has resulted in the United litigation has been the tendency of the Commission, in almost an aside, to resolve the question of United contract liability while its focus has been primarily on developing a curtailment plan. On remand, the district court should prepare an order which outlines with some specificity both the proceedings before the Commission that should be concluded before the dam- age litigation should continue and the issues upon which the Commission’s opinion is sought.** See, International Ass'n, Etc. v. United Contractors, Etc., 483 F.2d 384, 400-401, 404, modified 494 F.2d 1353 (3rd Cir. 1974). [16] In its final contention, MP&L argues that the district court erred in not allowing discovery to continue 14. By requiring the district court to prepare an order in which certain issues are referred to the FPC, we do not intend to unduly restrict that agency’s ability to assist the district court. The agency is free to make all findings that it believes will aid the prompt resolution of the dispute. A20 and proceeding to trial on those issues which were not referred to the Commission. While the district court has an affirmative obligation to resolve those issues in the litigation which, if they are sufficiently distinct, are not referred to the Commission, Louisville and Nashville Railroad Co. v. Knox Homes Corp., supra at 895 (Sth Cir. 1965), in a suit such as this one where referral encompasses the major part of the litigation the district court has discretion to stay all proceedings.’® Chronicle Publishing Co. v. NBC, 294 F.2d 744, 749 (9th Cir. 1961). Finally, we add a note of caution. We have been care- ful not to articulate the exact effect of the findings of the Commission upon the subsequent litigation. The dis- trict court stated in its order that the Commission’s de- cision would not be binding upon the court. We believe that it is singularly inappropriate to determine at this point in this complex litigation what the effect of the Commis- sion’s decisions will be before the nature and extent of the Commission’s action is ascertainable. While, as we have stated before, the court will finally determine United's liability in the damage action, we express no opinion as to the degree to which the trial court in reaching its decision will be bound by prior agency determination. Once the Commission decides the issues referred to it by the district court, there will be adequate time to determine the proper procedures for reviewing such findings and their 15. According to United’s brief, discovery is proceeding in various other similar actions brought against United in federal and state courts. Nothing we say here is meant to deny the district court the power to allow discovery if after preparing a new order the court believes that allowing discovery will aid in the resolution of the dispute. A21 effect on the subsequent litigation. Cf. Carter v. American Tel. & Tel. Co., supra at 499-500. In conclusion, we believe the district court acted prop- erly in staying the procedures and in referring the case to the Federal Power Commission so that that agency might exercise primary jurisdiction. We also believe that the district court should have been more precise in its order staying the litigation. We therefore remand to the district court for the limited purpose of modifying its order. Remanded with directions. A22 APPENDIX B IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 75-8134 (Filed May 28, 1975) MISSISSIPPI POWER & LIGHT COMPANY, and STATE OF MISSISSIPPI, Petitioners, versus UNITED GAS PIPE LINE COMPANY and PENNZOIL COMPANY, Respondents. On Application for Leave to Appeal from an Interlocutory Order Before THORNBERRY, MORGAN and RONEY Cir- cuit Judges. BY THE COURT: IT IS ORDERED that leave to appeal from the inter- locutory order of the United States District Court for the Southern District of Mississippi entered on April 4, 1975, is GRANTED. A23 APPENDIX C UNITED STATES COURT OF APPEALS For The Fifth Circuit October Term, 1975 No. 75-2316 D. C. Docket No. CA-J74-185(C) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff-Appellant, versus UNITED GAS PIPE LINE COMPANY, ET AL., Defendants-Appellees, STATE OF MISSISSIPPI, Plaintiff-Intervenor. Appeal from the United States District Court for the Southern District of Mississippi Before THORNBERRY, COLEMAN and MORGAN, Circuit Judges. JUDGMENT This cause came on to be heard on the transcript of the record from the United States District Court for the Southern District of Mississippi, and was argued by counsel; A24 ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the order of the District Court appealed from, in this cause be, and the same is hereby, remanded to the said District Court with directions in accordance with the opinion of this Court; It is further ordered that plaintiff-appellant pay to defendants-appellees, the costs on appeal to be taxed by the Clerk of this Court. May 27, 1976 Issued as Mandate: A25 APPENDIX D ‘UNITED STATES COURT OF APPEALS Fifth Circuit Office of the Clerk Edward W. Wadsworth Tel. 504-589-6514 Clerk 600 Camp Street New Orleans, La. 70130 September 27, 1976 (Received October 1, 1976) TO ALL COUNSEL OF RECORD No. 75-2316—NMississippi Power & Light Co. vs. United Gas Pipe Line Co., et al.; State of Mississippi Dear Counsel: This is to advise that an order has this day been entered denying the petition( ) for rehearing, and no member of the panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition( ) for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. Very truly yours, EDWARD W. WADSWORTH, Clerk By /s/ CLARE S. SACHS Deputy Clerk A26 cc: Messrs. Sherwood W. Wise Joseph P. Wise Mr. Clayton L. Orn Messrs. W. DeVier Pierson Peter J. Levin Mr. E. L. Brunini Mr. Alvin M. Owsley, Jr. Mr. Joe H. Daniel Messrs. Giles W. Bryant Marshall G. Bennett A27 APPENDIX E UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO. J74-185(C) (Filed April 4, 1975) (Received April 8, 1975) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff and ) STATE OF MISSISSIPPI, Plaintiff-Intervenor vs. UNITED GAS PIPE LINE COMPANY and PENNZOIL COMPANY, Defendants ORDER This cause having come on for hearing on the separate motions of the defendants to dismiss this civil action, or, in the alternative, to stay this civil action until further order of the Court, and the Court with the consent of all parties having retained jurisdiction of said motions for tiie purpose of ruling thereon, and the Court having received oral and documentary evidence, having received the briefs of the parties, having heard the argument of A28 counsel, and being fully advised in the premises, is of the opinion that the motions to dismiss should be denied and that the motions to stay should be granted for the reasons set forth in the Court’s April 2, 1975, opinion. It is, therefore, ordered and adjudged that the separate motions of the defendants to dismiss this civil action should be and the same are hereby denied. It is further ordered and adjudged that the separate motions of the defendants to stay these proceedings should be and the same are hereby granted, and it is further ordered and adjudged that all other and further processes of this Court will be and they are hereby stayed until further order of the Court. IT IS SO ORDERED AND ADJUDGED, this the 4th day of April, 1975. /s/ HAROLD COX United States District Judge A29 APPENDIX F UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION J74-185(C) (Received April 3, 1975) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff v. UNITED GAS PIPE LINE COMPANY and PENNZOIL COMPANY, Defendants The plaintiff instituted this diversity suit to recover damages for the alleged breach of a contract to supply it with natural gas. This is basically an action to recover actual damages for the alleged breach of a contract to sell and deliver to the plaintiff natural gas for its use and consumption. The defendants have answered and both contend in effect that they have no liability for the present allotments of natural gas which are supplied under curtailment orders of the Federal Power Commission, and in strict compliance with its mandate. The plaintiff contends that this action ‘is one at common law for damages and was and is oc- casioned and necessitated by misfeasance of the defend- ants in that the defendants knowingly and deliberately A30 oversold its supply of natural gas well knowing and understanding the ultimate effect to be that it lacked sufficient natural gas to comply with their contract re- quirements and obligations. The defendants first seck a dismissal of this suit for lack of jurisdiction, or alternatively, for a stay of this proceeding to await a decision by the Federal Power Commission as to its primary jurisdiction or not of this controversy. A detailed discussion of the myriad orders and opinions of the Commission in its exercise of primary jurisdiction is not necessary or helpful to a disposition of the motions here. It is the opinion of this Court that under the Natural Gas Act that the Federal Power Commission probably has jurisdiction of this curtailment controversy, and that the Court at this time should defer to its decision as to the authority of the Commission in this controversy, which is in the process of being handled by that agency; and while the agency’s decision is not final and binding on the Court, it must be sought at this time.’ The motion of the defendants to dismiss will be denied. The motion to stay proceedings here to await response of the Federal Power Commission as to its primary juris- 1. Federal Power Commission v. Louisiana Power & Light Com- pany, et al, 406 U.S. 621, 92 S.Ct. 1827, 1842, the Court among other things held: “In that circumstance, the District Court and the Court of Appeals were obliged to defer to the FPC for the initial determination of its jurisdiction. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The need to protect the primary authority of an agency to determine its own jurisdiction ‘is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the [agency]. While the [agency’s] decision is not the last word, it must assuredly be the first.’ ” A3i diction of this curtailment question will be granted. In the meantime, all other and further processes of this #. Court will be stayed to await the ultimate answer of the Commission as to this paramount and controlling question of law. The defendants may present an appropriate order to the Court consistent with such views within five days after this date. April 2, 1975 /s/ HAROLD COX United States District Judge A32 APPENDIX G UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO. J74-185(C) JURY TRIAL REQUESTED (Filed August 30, 1974) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff v. UNITED GAS PIPE LINE COMANY and PENNZOIL COMPANY, Defendants COMPLAINT 1. The Plaintiff, Mississippi Power & Light Company (MP&L), is a corporation incorporated under the laws of the State of Mississippi having its principal place of business in the State of Mississippi; Defendant, United Gas Pipe Line Company (United), is a corporation in- corporated under the laws of the State of Delaware having its principal place of business in a state other than the State of Mississippi; and Defendant, Pennzoil Company (Pennzoil), is a corporation incorporated under the laws of the State of Delaware having its principal place of A33 business in a state other than the State of Mississippi. The matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000.00. 2. MP&L is engaged in generating, transmitting and distributing electricity, principally in the western half of the State of Mississippi where it serves approximately 273,000 retail customers and 62 wholesale customers. The Defendant United is engaged in transporting and selling natural gas. MP&L has purchased natural gas for use as a boiler fuel at its Rex Brown Steam Electric Station in Jackson, Mississippi, and its Baxter Wilson Steam E'ectric Station in Vicksburg, Mississippi, from United as hereinafter appears. The Defendant Pennzoil was, at all relevant times, the parent corporation of United and was in control of United and directed its ac- tivities in United’s dealings with MP&L. 3. On or about December 8, 1967, United and MP&L entered into a contract denominated a “Gas Sales Agree- ment” a copy of which is attached hereto as Exhibit “A” and made a part hereof. The Gas Sales Agreement was subsequently amended by United and MP&L as follows: (a) by a Letter Agreement dated December 8, 1967, a copy of which is attached hereto as Exhibit “B”; (b) by an Amendatory Agreement dated January 15, 1969, a copy of which is attached hereto as Exhibit “C”; (c) by an Amendatory Agreement dated April 29, 1969, a copy of which is attached hereto as Exhibit “D”; A34 (d) by a Letter Agreement dated June 19, 1969, a copy of which is attached hereto as Exhibit “E”; (e) by an Amendatory Agreement dated March 12, 1970, a copy of which is attached hereto as Exhibit “F”; and (f) by a Letter Agreement dated March 12, 1970, a copy of which is attached hereto as Exhibit “G”. The Gas Sales Agreement, as amended, imposes upon United the firm obligation to deliver up to 190,000 Mcf of gas to MP&L each day for use as boiler fuel at its Rex Brown and Baxter Wilson Steam Electric Stations referred to above. MP&L may receive the entire maximum daily delivery obligation of 190,000 Mcf at its Baxter Wilson Steam Electric Station, or it may elect to take up to 80,000 Mcf per day at its Rex Brown Steam Electric Station, so long as the aggregate at both stations does not exceed the maximum daily obligation of 190,000 Mcf. COUNT ONE 4. In negotiating the Gas Sales Agreement of Decem- ber 8, 1967, and the amendments thereto, United repre- sented to MP&L that it had the ability to perform its obli- gations pursuant to such Agreement. As a consequence, MP&L, in reliance upon the Gas Sales Agreement and United’s representations, expended substantial sums in constructing and maintaining power plant facilities de- signed to burn natural gas as a primary boiler fuel. United has breached the Gas Sales Agreement of December 8, 1967, as amended, and failed to furnish MP&L with all of the gas which it is obligated to furnish to MP&L pur- suant to said Agreement. As a result of the breach of Tr _—_—eeX— ery : oo + ———" 1 a be . * \ . _, YaCKSON AREA el eee | A78 EXHIBIT “B” UNITED GAS PIPE LINE COMPANY Shreveport, Louisiana December 8, 1967 Mississippi Power & Light Company Electric Building Jackson, Mississippi 39205 Gentlemen: We have, as of even date herewith, entered into a Gas Sales Contract with you relating to the sale and purchase of gas for the fuel requirements for your Rex Brown plant at Jackson, Mississippi, and the Baxter Wilson plant near Vicksburg, Mississippi. The hereinabove described contract provides for a monthly “step rate” which is computed on the basis of the monthly quantities of gas delivered at each delivery point. The lowest rate available at any delivery point is during months in which the volumes delivered exceed 400,000 Mcf. You have advised that you will have peri- odic shutdowns for inspection and maintenance of your machinery so as to properly maintain all of your equip- ment as well as minimize the possibilities of any break- downs, and you have inquired as to whether such events are covered under the provisions of Article VIII (force majeure) of our contract so as to assure you of the same rates you would have had if such shutdowns had not oc- curred. We are of the opinion that these events do not come within the provisions of Article VIII of our con- tract. However, we are willing, in computing the monthly rate provided for in Article XIV of the contract, to give you credit for the down time occasioned by such inspec- tions and shutdown periods so that when the monthly rate is computed you will pay for gas on the same basis as you would have paid if the plant had been operating during A79 such shutdown periods, provided that you give us proper notice relating to such shutdowns in the same manner as provided in said Article VIII. You will then be assured that such shutdown periods will not in anywise increase the price to be paid by you for gas delivered under the contract. If the above is satisfactory with you, please signify your acceptance on the duplicate originals hereof in the space provided below and return one of the duplicate originals to us, thus constituting this letter an agreement between us. This letter shall be considered a part of the contract between us of even date herewith. Yours very truly, UNITED GAS PIPE LINE COMPANY By SIGNATURE ILLEGIBLE President Accepted and agreed to: MISSISSIPPI POWER & LIGHT COMPANY By /s/ R. B. WILSON President A80 EXHIBIT “C” AMENDATORY AGREEMENT Between UNITED GAS PIPE LINE COMPANY and MISSISSIPPI POWER & LIGHT COMPANY Dated January 15, 1969 THIS AGREEMENT made and entered into this 15th day of January, 1969, by and between UNITED GAS PIPE LINE COMPANY, a Delaware corporation, here- inafter called “Seller”, and MISSISSIPPI POWER & LIGHT COMPANY, a Mississippi corporation, herein- after called “Buyer”; WITNESSETH: WHEREAS, Seller is selling and delivering to Buyer and Buyer is purchasing and receiving from Seller natural gas for all of the fuel requirements of Buyer’s Rex Brown Power Plant located at Jackson, in Hinds County, Mis- sissippi, and Buyer’s Baxter Wilson Power Plant located near Vicksburg, in Warren County, Mississippi, under the terms and conditions of that certain agreement dated December 8, 1967, between Seller and Buyer; WHEREAS, the above mentioned agreement of De- cember 8, 1967, provides that in the event Seller and Buyer have not by July 1, 1970, obtained the necessary governmental authorizations either Seller or Buyer shall have certain cancellation rights; and A81 WHEREAS, Seller and Buyer desire to amend Article XVII, Regulatory Requirement, of the above mentioned agreement to reflect more fully the understanding be- tween Seller and Buyer in connection with the filing and prosecution of the necessary governmental applications; NOW, THEREFORE, in consideration of the mutual covenants and obligations. herein contained and assumed by each party, the parties hereto covenant and agree as follows: 1. From and after the date of execution hereof, Article XVII, Regulatory Requirement, of the above mentioned agreement of December 8, 1967, shall be changed and amended so that said Article shall thereafter, in its en- tirety, read as follows: “XVII. “REGULATORY REQUIREMENT “It is expressly recognized that before Seller may pro- ceed with the construction of any necessary facilities to enable Seller to make deliveries of the additional quanti- ties of gas contemplated to be delivered hereunder to Buyer’s Baxter Wilson Power Plant, Seller must apply to the Federal Power Commission for a Certificate of Public Convenience and Necessity, authorizing the con- struction of said facilities and delivery of natural gas to Buyer. “Seller and Buyer agree to proceed with reasonable diligence with the filing and prosecution of applications for such governmental authorizations as may be respectively required of them for the construction of the facilities A82 which each is required to construct under the provisions hereof and for the sale and purchase of gas hereunder; provided, however, that shouid Seller not have filed with the Federal Power Commission an application for a Cer- tificate of Public Convenience and Necessity on or before May 1, 1969, Buyer shall have the right, upon written notice delivered to Seller before Seller should have filed such an application, to cancel this contract. Each party otherwise reserves the right to pursue its applications in such manner as it deems to be in its best interest, including the right to file whatever pleadings and motions it deems desirable. Neither party shall be obligated to accept any authorization which contains, in the opinion of the party receiving such authorization, unreasonable or onerous terms and conditions. In the event that Seller and Buyer have not by January 1, 1970, obtained such authorizations upon terms and conditions which are not unreasonable or onerous to the party receiving such au- thorization, then Seller or Buyer shall have the right at any time thereafter, but prior to the parties having been issued such authorization, to cancel this agreement by giving the other party written notice of such cancellation. In the event Buyer exercises its option to cancel this contract because Seller has not timely applied to the Federal Power Commission for a Certificate of Public Convenience and Necessity, as provided above, or in the event either party exercises its option to cancel this contract because either party has not timely received acceptable regulatory au- thorization, as provided above, then, and in any such event, both parties and either party shall be relieved of all liability hereunder, including liability for damages, if any, incurred by the other party as a result of the can- cellation.” A83 2. Except as herein specifically changed and amended the above mentioned agreement of December 8, 1967, shall remain in full force and effect as written. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their respective corporate officers thereunto duly authorized and their respective corporate seals to be hereunto affixed in two (2) counterparts, each of which shall constitute an origi- nal, on the day and year first above written. UNITED GAS PIPE ATTEST: LINE COMPANY /s/ Signature Illegible By /s/ Signature Illegible Assistant Secretary President MISSISSIPPI POWER & ATTEST: LIGHT COMPANY /s/ Signature Illegible By /s/ R. B. WILSON Secretary Vice President AB4 EXHIBIT “D” AMENDATORY AGREEMENT Between UNITED GAS PIPE LINE COMPANY And MISSISSIPPI POWER & LIGHT COMPANY Dated April 29, 1969 THIS AGREEMENT made and entered into this 29th day of April, 1969, by and between UNITED GAS PIPE LINE COMPANY, a Delaware corporation, here- inafter called “Seller”, and MISSISSIPPI POWER & LIGHT COMPANY, a Mississippi corporation, herein- after called “Buyer”; WITNESSETH: WHEREBAS, Seller is selling and delivering to Buyer and Buyer is purchasing and receiving from Seller natural gas for all of the fuel requirements of Buyer's Rex Brown Power Plant located at Jackson, in Hinds County, Mis- sissippi, and Buyer's Baxter Wilson Power Plant located near Vicksburg, in Warren County, Mississippi, under the terms and conditions of that certain agreement dated December 8, 1967, as amended, between Seller and Buyer; and WHEREAS, Seller and Buyer desire to amend Article XIV, Rates, of the above mentioned agreement to reflect more fully the understanding between Seller and Buyer; NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained and assumed by each party, the parties hereto covenant and agree as follows: a A lta: A85 From and after the date of execution hereof, Article XIV, Rates, of the above mentioned agreement of De- cember 8, 1967, shall be changed and amended so that said Subsection (A) of Article XIV shall thereafter read as follows: “(A) For the period commencing on the date of exe- cution of this agreement and extending to January 1, 1973, for all gas delivered by Seller to Buyer at Buyer's Rex Brown Power Plant and for gas delivered in quantities each day of 110,000 Mef or less at Buyer's Baxter Wilson Power Plant, the following monthly rate for all gas shall apply: “MONTHLY RATE 76.25¢ per Mc! when total deliveries are between 0 and 150 Mef 35.75¢ per Mcf when total deliveries are between 151 and 300 Mef 32.75¢ per Mcf when total deliveries are between 301 and = 1,500 Mef 27.75¢ per Mcf when total deliveries are between 1,501 and 5,000 Mef 25.75¢ per Mcf when total deliveries are between 5,001 and 10,000 Mef 25.25¢ per Mcf when total deliveries are between 10,001 and 50,000 Mef 24.75¢ per Mcf when total deliveries are between 50,001 and 85,000 Mef 23.75¢ per Mcf when total deliveries are between 85,001 and 125,000 Mef 22.75¢ per Mcf when total deliveries are between 125,001 and 160,000 Mef 21.75¢ per Mcf when total deliveries are between 160,001 and 400,000 Mef 21.25¢ per Mcf when total deliveries are over 400,000 Mef A86 provided, however, that the above prices shall be increased or decreased, by the amount by which Seller's weighted average purchase price of gas for the preceding billing month in the Jackson Area, as outlined in Exhibit B (Drawing UB21566 1-1-69) attached hereto, exceeds or is less than 15¢ per Mef; provided, further, that the maximum amount payable in each of the above steps shall never be more than the minimum amount which would be payable in the step next below, Seller's weighted aver- age purchase price of gas in the Jackson Area, shall be determined by: (1) adding together all the volumes of gas which Seller purchased in the area and transferred into the area during the preceding billing month; (2) adding together the cost payable by Seller for the gas it purchased in the area and the cost assignable to the gas transferred into the area during the preceding billing month, and (3) dividing the total of said costs payable by the total of said volumes purchased in and transferred into the area, The resulting quotient shall be the weighted average purchase price of gas in the area, In computing weighted average purchase price, costs as used in the steps outlined above shall be: “(a) Subject to the provisions of paragraph (b) here- of, the cost of gas purchased by Seller shall be the amount payable by Seller to the producer, pipeline or other seller; except that the cost of gas purchased on the seaward side of the shorelines of Florida, Alabama, Mississippi, Louisiana, and Texas, under contracts executed after January 1, 1968, shall be the amount payable to the producer, pipeline or other seller thereof, plus the amount, if any, payable by Seller to others for delivery of the gas onshore; or, if Seller's facilities are used to deliver such gas onshore, an amount obtained by (i) dividing 1/12th A87 of 25% of the depreciated investment, at the beginning of the preceding billing month, in Seller's facilities used to deliver such gas onshore by the total volume of gas delivered through such facilities during said billing month, und (ii) multiplying the result so obtained by the volume of gas purchased by Seller under contracts executed after January 1, 1968, and delivered through such facilities during said billing month. “(b) The cost of gas purchased by Seller shall include as a part thereof all taxes (as hereinafter defined) which may be levied upon and paid by Seller, or which Seller under contractual or legal obligation pays to or for the person or company on which such taxes are levied, on or with respect to such gas prior to the receipt thereof by Seller in its Main Pipe Line System, but shall not include any deductions for compression of such gas or any payments for special services which may be provided for in Seller's gas purchase contracts. “(c) Cost assignable to gas transferred into the Jack- son Area shall be the result obtained by multiplying the weighted average price paid by Seller for gas purchased in its South Louisiana Area, as outlined in Exhibit B (Drawing UB21566 1-1-69) attached hereto, and in the Gulf of Mexico for delivery onshore in the South Louisi- ana Area, by the volume of gas transferred into the Jackson Area. “(d) In the computation of the weighted average pur- chase price for the Jackson Area neither the cost nor volumes of gas purchased by Seller for Tennessee Gas Pipeline Company for sale in northern Mississippi shall be included in the computation in the computation,” 2. Except as herein specifically changed and amended, the above mentioned agreement of December 8, 1967, as heretofore amended, shall remain in full force and effect as written. iN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their respective corporate officers thereunto duly authorized and their respective corporate seals to be hereunto affixed in two (2) counterparts, each of which shall constitute an origi- nal, on the day and year first above written. UNITED GAS PIPE ATTEST: LINE COMPANY /s/ Signature Illegible By /s/ Signature Illegible Assistant Secretary President MISSISSIPPI POWER & ATTEST: LIGHT COMPANY /8/ Signature Illegible By /s/ R. B. WILSON Assistant Secretary President A88-a . 7 a Se or oe, ARKANSAS 3 a¢t ie x” Os ett P od ag e P \ il : e” y —e LABAMA “7 ¥. ” SB , “tie, UNITED GAS PIPE LINE COMPANY ¢x~eT ‘so v8 2:566 A89 EXHIBIT “E” UNITED GAS PIPE LINE COMPANY Post Office Box 1407 Shreveport, Louisiana 71102 318 422-8631 June 19, 1969 Mr. R. Baxter Wilson, President Mississippi Power & Light Company Electric Building Jackson, Mississippi 39205 Dear Mr. Wilson: By our letter of May 22, 1969, we advised you that certain provisions of Subparagraph (B) of Article XIV of our agreement with you dated December 8, 1967, as amended, would become effective March 1, 1969. While you have taken exception to our position in this matter, we feel that the notification given you in our above mentioned letter of May 22, is correct and expresses the intent of the contract as written. However, in order t to resolve our differences, we are willing to agree with you that, in lieu of our said position, the next time after date of this letter that our deliveries of gas to you at your Baxter Wilson Power Plant exceeds 110,000 Mcf on any day then such happening shall activate the begin- ning of the 365 day period referred to in said Subpara- graph (B) of Article XIV, entitled Rates, of the above mentioned contract between us dated December 8, 1967, as amended. If the foregoing is agreeable to you, kindly acknowledge your agreement by signing in the space provided below and return a copy hereof to us for our file. A90 Yours very truly, UNITED GAS PIPE LINE COMPANY /s/ V. 8. BRENNAN V. S. Brennan Vice President Accepted and Agreed to: MISSISSIPPI POWER & LIGHT COMPANY By /s/ R. B. WILSON President A91 EXHIBIT “F” AMENDATORY AGREEMENT Between UNITED GAS PIPE LINE COMPANY And , MISSISSIPPI POWER & LIGHT COMPANY Dated March 12, 1970 THIS AGREEMENT made and entered into this 13th day of March, 1970, by and between UNITED GAS PIPE LINE COMPANY, a Delaware corporation, here- inafter called “Seller”, and MISSISSIPPI POWER & LIGHT COMPANY, a Mississippi corporation, herein- after called “Buyer”; WITNESSETH: WHEREAS, Seller is selling and delivering to Buyer and Buyer is purchasing and receiving from Seller natural gas for the fuel requirements of Buyer’s Rex Brown Power Plant located at Jackson in Hinds County, Mississippi, and Buyer’s Baxter Wilson Power Plant located near Vicksburg in Warren County, Mississippi, under the terms and conditions of that certain agreement dated Decem- ber 8, 1967, as amended, between Seller and Buyer; and WHEREAS, Seller and Buyer desire to amend Articles XI, XIV and XVII of the above mentioned agreement to reflect an agreement between the parties due to circum- stances now existing. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained and assumed A92 by each party, the parties hereto covenant and agree as follows: 1, From and after the date of execution hereof, the above mentioned agreement of December 8, 1967, shall be changed and amended so that Article XI, Scope and Quantities, shall thereafter in its entirety read as follows: “XI. “SCOPE AND QUANTITIES “Subject to the terms, conditions, and limitations hereof, Seller agrees to sell and deliver or cause to be delivered to Buyer and Buyer agrees to purchase and receive from Seller and pay Seller for, natural gas for use by Buyer as fuel in Buyer’s Rex Brown Power Plant, Hinds County, Mississippi, and Buyer’s Baxter Wilson Power Plant, War- ren County, Mississippi, in an aggregate daily quantity not to exceed 190,000 Mcf for both plants, which quan- tity shall be the Maximum Daily Delivery Obligation hereunder. “During the period commencing with the date of exe- cution hereof, and extending to October 1, 1971, or such earlier date as Buyer places into operation its said new 750,000 KW generating unit now being installed at said Baxter Wilson Power Plant, Seller shall not be required to deliver to Buyer and Buyer shall not be required to purchase and receive from Seller hereunder at said Baxter Wilson Power Plant, more than a total maximum of 110,000 Mcf of gas in any one day. “During the period commencing on October 1, 1971, or such earlier date as Buyer places into operation its A93 said new 750,000 KW unit at said Baxter Wilson Plant, Seller shall not be required to deliver to Buyer at Baxter Wilson Plant, and Buyer shall not be required to purchase and receive from Seller hereunder at such plant more than a total maximum of 190,000 Mcf of gas in any one day. “Seller shall not be required to deliver to Buyer and Buyer shall not be required to purchase and receive from Seller at said Rex Brown Power Plant more than a total maximum of 30,000 Mcf of gas in any one day. “It is understood and agreed that Buyer may, upor reasonable notice to Seller, and subject to the obligation set out in subsection (1) of Article XIV, vary its taking of gas from Seller as between said Rex Brown Power Plant and said Baxter Wilson Power Plant provided that in no event shall the total aggregate take for both plants exceed the Maximum Daily Delivery Obligation of 190,000 Mcf nor shall the total daily take at each of Buyer’s said plants exceed the respective maximum quantities as spe- cifically hereinabove set forth.” 2. From and after the date of execution hereof, Article XIV, Rates, shall be amended so as to add at the end of said Article ar additional paragraph designated “(I)” which shall read as follows: “(I) It is recognized that upon the completion and placing into operation of Buyer’s said new 750,000 KW Unit at said Baxter Wilson Plant, Buyer will purchase a portion of its fuel requirements from other sources. In recognition thereof. Buyer agrees, effective on the first day of the month following the placing into commercial A94 operation of said new 750,000 KW unit, to take or pay Seller for, whether taken or not, a minimum annual quantity of gas of 34,674,000 Mef during any calendar year, In the event less than a year is involved in calculat- ing the minimum quantity, then such minimum quantity for such portion of a year shall be determined by multiply- ing the number of days in such period by 95,000 Mef. In the event Buyer is so required to make an annual mini- mum payment, Buyer may make up such deficiency dur- ing the following calendar year by promptly notifying Seller of its intention so to do; provided, however, that in making up such deficiency, Buyer may not in any one day take in excess of 190,000 Mef of gas, the Maximum Daily Delivery Obligation as provided for in Article XI hereof.” 3. From and after the date of execution hereof the above mentioned agreement of December 8, 1967, shall be changed and amended so that Article XVII, Regulatory Requirement, shall thereafter, in its entirety, read as fol- lows: “XVI “REGULATORY REQUIREMENT “It is expressly recognized that before Seller may pro- ceed with the construction of facilities, if any, to enable Seller to make deliveries of the additional quantities of gas contemplated to be delivered hereunder to Buyer's Baxter Wilson Power Plant, Seller must apply to the Federal Power Commission for a Certificate of Public Convenience and Necessity, authorizing the construction of any such facilities and delivery of natural gas to Buyer. 5 ; i Hl Hf if 2} FE ett In the event either party exercises its option to cancel this contract because either party has not timely received ac- ceptable regulatory authorization, as provided above, then, and in any such event, both parties and either party shall Except as herein specifically changed and amended, the above mentioned agreement of December 8, 1967, as heretofore amended, shall remain in full force and effect as written, * A96 IN WITNESS WHEREOFP, the parties hereto have caused this agreement to be executed by their respective corporate officers thereunto duly authorized and_ their respective corporate seals to be hereunto affixed in two (2) counterparts, each of which shall constitute an original, on the day and year first above written. UNITED PIPE LINE ATTEST: COMPANY /s/ Signature Illegible By /s/ Signature Illegible Assistant Secretary Vice President MISSISSIPPI POWER & ATTEST: LIGHT COMPANY /s/ Signature Ilegible By /s/ Signature Illegible Assistant Secretary President A9?7 EXHIBIT “G”" UNITED GAS PIPE LINE COMPANY Post Office Box 1407 Shreveport, Louisiana 71102 318 422-8631 March 12, 1970 Mississippi Power & Light Company | : i minimize the possibilities any breakdowns, and you have inquired as to whether you tor gas the calculation of the annual minimum quantity of gas to be taken under the contracts. This Letter Agreement supersedes in all respects the ow mentioned Letter Agreement of December 8, If the above is satisfactory with you, please signify your on the duplicate originals hereof in the space to us, thus constituting this letter an agreement between A99 us. This letter shall be considered a part of the contract between us of even date herewith. Yours very truly, UNITED GAS PIPE LINE COMPANY /s/ V. 8. BRENNAN V. S. Brennan Vice President MISSISSIPPI POWER ! PI POWER & LIGHT COMPANY By /s/ Signature Illegible President A100 APPENDIX H UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO, J74-185(C) (Filed February 20, 1975) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff v. UNITED GAS PIPE LINE COMPANY, ET AL, Defendants ORDER ON MOTIONS TO INTERVENE On timely motions duly filed and presented, the Court being fully advised in the premises: The motion of the City of Jackson and the motion of the Mississippi Public Service Commission to intervene herein under Civil Rule 24 are denied. The motion of the State of Mississippi to intervene under Civil Rule 24 and to participate in all proceedings as a party is well taken and is granted. ORDERED, this February 20, A. D., 1975. /s/ HOWARD COX United States District Judge A101 APPENDIX I (Filed February 20, 1975) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO. J74-185(c) MISSISSIPPI POWER & LIGHT COMPANY and THE STATEOF MISSISSIPPI, Applicant for Intervention, Plaintif® Vv. UNITED GAS PIPE LINE COMPANY and Defendants COMPLAINT IN INTERVENTION 1. This is a civil action by the State of Mississippi as Plaintiff-Intervenor in order to protect its interest as a major customer of the original Plaintiff, Mississippi Power & Light Company (MP&L) and, as parens patriae, to protect the interest of the citizens of the State of Missis- sippi. This Court has ancillary jurisdiction by virtue of the close relationship between Plaintiff-Intervenor’s in- terest and those of the original Plaintiff in the main action. 2. Plaintiff-Intervenor incorporates herein by reference the Complaint of Mississippi Power & Light Company _ A102 (MP&L) in the main action and adopts such Complaint in its entirety as its own, and as if fully set forth herein. WHEREFORE, Plaintiff-Intervenor prays for such re- lief as requested by the original Plaintiff, Mississippi Power & Light Company (MP&L), in Counts Three and Four of its Complaint and for all costs of this action and all other relief to which the Plaintiff-Intervenor is entitled. /s/ A. F. SUMMER A. F. Summer, Attorney General State of Mississippi /s/ WILLIAM A. ALLAIN William A. Allain First Assistant Attorney General /s/ MARSHALL G. BENNETT Marshall G. Bennett Assistant Attorney General /s/. GILES W. BRYANT Giles W. Bryant Special Assistant Attorney General Attorneys for Plaintiff-Intervenor, State of Mississippi et ee + eet ee re ie hierar reer Pe) on ties es te De ear eet A at NB tn om A103 APPENDIX J IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO. J74-185(C) (Filed January 9, 1975) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff vs. UNITED GAS PIPE LINE COMPANY and PENNZOIL COMPANY, Defendants MOTION TO DISMISS OR, ALTERNATIVELY, TO STAY Comes now the defendants, United Gas Pipe Line Company, appearing through its undersigned counsel, and moves the Court to dismiss without prejudice the Com- plaint filed herein against it or, alternatively, to stay all further proceedings herein, on the ground that the Com- plaint presents numerous issues within the competence and primary jurisdiction of the Federal Power Commis- sion for initial determination. Therefore, the Complaint herein should be dismissed without prejudice or, alter- natively, all proceedings herein should be stayed, because primary jurisdiction over the subject matter is vested in and should be exercised by the Federal Power Commis- sion. A104 WHEREFORE, defendant prays that the Complain herein be dismissed without prejudice at plaintiff's cost or, alternatively, the proceedings herein stayed until fur- ther order of the Court. DATED: January 9, 1975. Respectfully submitted, WILLIAM B, CASSIN PHILLIP D. ENDOM United Gas Pipe Line Company 1500 Southwest Tower Houston, Texas 77002 W. DeVIER PIERSON 1054 Thirty-first Street, N.W. Washington, D. C. 20007 E. L. BRUNINI NEWT P. HARRISON JOHN R. HUTCHERSON 1440 First National Bank Bidg. Post Office Drawer 119 Jackson, Mississippi 39205 Telephone: (601) 948-3101 ATTORNEYS FOR DEFENDANT, UNITED GAS PIPE LINE COMPANY By: /s/ E. L. BRUNINI E. L. Brunini A105 OF COUNSEL: BRUNINI, GRANTHAM, GROWER & HEWES i440 First National Bank Bidg. Post Office Drawer 119 Jackson, Mississippi 39205 SHARON, PIERSON, SEMMES, CROLIUS AND FINLEY 1054 Thirty-first Street, N.W. Washington, D. C. 20007 NOTICE OF MOTION TO: HONORABLE SHERWOOD W. WISE HONORABLE THOMAS G. LILLY HONORABLE RICHARD B. WILSON, JR. Post Office Box 651 925 Electric Building Jackson, Mississippi 39205 HONORABLE CLAYTON L. ORN 122 Southwest Tower Houston, Texas 77002 Please take notice that counsel for defendant, United Gas Pipe Line Company, will bring on for hearing the foregoing motion before the Court at the Federal Court- house in Jackson, Mississippi, at 9:00 A.M., Central Time, on Friday, January 24, 1975, or as soon thereafter as counsel may be heard. DATED: January 9, 1975. /s/ EDMUND L. BRUNINI Edmund L. Brunini A106 CERTIFICATE OF SERVICE I hereby certify that I have mailed, by United States Mail first class postage prepaid, to Honorable Sherwood W. Wise, Honorable Thomas G. Lilly and Honorable Richard B. Wilson, Jr., Post Office Box 651, Jackson, Mississippi 39205, and to Honorable Clayton L. Orn, 122 Southwest Tower, Houston, Texas 77002, counsel for plaintiff, a true copy of the above and foregoing motion and notice of motion, this the 9th day of January, 1975. /s/ EDMUND L. BRUNINI Edmund L. Brunini Bile evade Des. ewe no a ee ee A107 APPENDIX K IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTION NO. J74-185(C) (Filed January 9, 1975) MISSISSIPPI POWER AND LIGHT COMPANY, Plaintiff vs. UNITED GAS PIPE LINE COMPANY AND PENNZOIL COMPANY Defendants MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY Comes now Pennzoil Company, defendant herein, by its attorneys, and moves the Court to dismiss this cause, without prejudice, or, in the alternative, to stay all fur- ther proceedings in this cause until further orders of the Court, and in support of said motion, would respectfully show the following, to-wit: 1. As shown by the plaintiff's complaint, the principal issue in this case is a determination of the rights, duties and obligations of plaintiff and United, under the Gas A108 Sales Agreement, Exhibit “A” to the complaint, and Amendments thereto, Exhibits “B-G” to the complaint, in that United, an interstate gas pipeline regulated by the Federal Power Commission (FPC), has complied with FPC orders for the curtailment of deliveries of natural gas to plaintiff. 2. United’s delivery obligations, and plaintiff's entitle- ment to receive deliveries of natural gas, are subject to and controlled by the Natural Gas Act, 15 U.S.C., §717, et seq., and to the control and regulations of the FPC. 3. Primary jurisdiction for consideration of the major issues raised by this case has, by federal law, been vested in the FPC. Further, the FPC has the initial and primary jurisdiction to consider in the first instance said major issues which are relevant in this case. 4. In view of the exclusive and original jurisdiction delegated by the Congress to the FPC to determine the curtailment authority of FPC with respect to deliveries of natural gas by United to its customers, including plain- tiff, and the tariffs under which such deliveries shall be made, this Court lacks present jurisdiction over the sub- ject matter of this action, and the plaintiff's complaint fails to state a claim, at this time, upon which relief may be granted. WHEREFORE, Pennzoil Company, moves the Court to dismiss this cause, without prejudice, or, in the alterna- tive, to stay all further proceedings in this cause until further orders of the Court. A109 Respectfully submitted, PENNZOIL COMPANY /s/ JOE H. DANIEL JOE H. DANIEL THOMAS A. BELL P. O. Box 1084 Jackson Mississippi 39205 OF COUNSEL: DANIEL, COKER, HORTON, BELL AND DUKES ALVIN W. OWSLEY 3000 One Shell Plaza Houston, Texas 77002 BAKER & BOTTS G. BRUCE MALLUM Associate General Counsel Pennzoil Company 900 Southwest Tower Houston, Texas 77002 ATTORNEYS FOR PENNZOIL COMPANY A110 NOTICE OF MOTION TO: SHERWOOD W. WISE;.ESO: THOMAS G. LILLY, ESQ. RICHARD B. WILSON, JR., ESQ. . Post Office Box 651 Jackson, Mississippi 39205 CLAYTON L. ORN 122 Southwest Tower Houston, Texas 77002 Please take notice that ‘counsel for defendant, Pennzoil Company, will bring on for hearing the foregoing Motion to Dismiss, or, in the Alternative, to Stay, before this Honorable Court at the Federal Courthouse in Jackson, Mississippi, at 9 A.M., on the 24th day of January, 1975, or as soon thereafter as counsel may be heard. This, the 9th day of January, 1975. /s/ JOE H. DANIEL Joe H. Daniel ee eee eee ee a Alll CERTIFICATE OF SERVICE I, Joe H. Daniel, attorney for defendant, Pennzoil Com- pany, hereby certify that I have this day caused to be delivered to Sherwood W. Wise, Esq., Thomas G. Lilly, Esq., and Richard B. Wilson, Jr., Esq., counsel for plain- tiff, a true and correct copy of the foregoing Motion to Dismiss, or, in the Alternative, to Stay, and Notice of Motion, and that I have this day mailed, by United States mail, first class postage prepaid, a true and correct copy of said Motion and Notice to Clayton L. Orn, Esq., 122 Southwest Tower, Houston, Texas 77002, and to E. L. Brunini, Esq., Post Office Drawer 119, Jackson, Missis- sippi 39205. This, the 9th day of January, 1975. /s/ JOE H. DANIEL Joe H. Daniel A112 APPENDIX L IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION CIVIL ACTON NO. J74-185(C) (Filed March 24, 1975) MISSISSIPPI POWER & LIGHT COMPANY, Plaintiff vs. UNITED GAS PIPE LINE COMPANY and PENNZOIL COMPANY, Defendants SEPARATE ANSWER OF DEFENDANT UNITED GAS PIPE LINE COMPANY Comes now UNITED GAS PIPE LINE COMPANY (hereinafter referred to as “United”), and for answer to the Complaint filed against it by MISSISSIPPI POWER & LIGHT COMPANY (hereinafter referred to as “MP&L”), responds as follo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0991%3A1. Public record. Not legal advice.