United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
the Court is Defendants' motion to certify question to
the Arizona Supreme Court, which is fully briefed. (Docs.
127, 130, 133.) For the following reasons, the Court will
deny Defendants' motion.
November 15, 2018, George Johnson, Johnson Utilities LLC
(“Johnson Utilities”), Johnson International Inc.
(“Johnson International”), and James Norton
(collectively the “Bribery Defendants”) moved to
dismiss Plaintiffs' complaint as barred by the filed rate
doctrine. (Doc. 78.) On September 5, 2019, the Court denied
Bribery Defendants' motion to dismiss. (Doc. 120.) In its
decision, the Court noted a lack of Arizona precedent
adopting or rejecting the filed rate doctrine, but declined
to certify the question whether Arizona had, indeed, adopted
a version of the filed rate doctrine to the Arizona Supreme
Court, concluding that it could resolve Bribery
Defendants' motion without answering the question.
(Id. at 6-9.) The Court explained that, even if
Arizona had adopted a filed rate doctrine, it would not apply
here because the Commission repudiated the doctrine when it
disclaimed authority to regulate conduct identical to that
challenged in Plaintiffs' complaint in Delton Munday,
et al., ACC Docket No. WD-02987A-17-0192. (Id.
at 9-11.) On September 26, 2019, Defendants filed their
motion to certify question to the Arizona Supreme Court,
asking the Court to reconsider its decision not to certify
the filed rate question. (Doc. 127.) Particularly, Defendants
request the Court to certify the following question to the
Arizona Supreme Court: “Whether Arizona law precludes a
Court from hearing a claim by a rate payor that a
utility's rates were set too high because of the utility
bribing a Commissioner.” (Id.) Defendants'
motion is ripe.
for reconsideration should be granted only in rare
circumstances. Defenders of Wildlife v. Browner, 909
F.Supp. 1342, 1351 (D. Ariz. 1995). Mere disagreement with a
previous order is an insufficient basis for reconsideration.
See Leong v. Hilton Hotels Corp., 689 F.Supp. 1572,
1573 (D. Haw. 1988). A motion for reconsideration ordinarily
will be denied “absent a showing of manifest error or a
showing of new facts or legal authority that could not have
been brought to its attention earlier with reasonable
diligence.” LRCiv 7.2(g). Further, the motion must
“point out with specificity the matters that the movant
believes were overlooked or misapprehended by the Court, any
new matters being brought to the Court's attention for
the first time and the reasons they were not presented
earlier, and any specific modifications being sought in the
Court's Order.” Id. Finally, “[n]o
motion for reconsideration . . . may repeat any oral or
written argument made by the movant in support of or in
opposition to the motion that resulted in the Order.”
Id. The court may deny a motion for reconsideration
if it fails to comply with these rules. Id.
motion, Defendants urge that the Court “could”
and “should” certify their proposed question to
the Arizona Supreme Court. (Doc. 127.) The Court thoroughly
considered the appropriateness of certifying a filed rate
doctrine question to the Arizona Supreme Court when ruling on
the Bribery Defendants' motion to dismiss. (Doc. 120 at
6-11.) It determined in its discretion that certification was
not proper. See Smith v. Allstate Ins. Co., 202
F.Supp.2d 1061, 1064 (D. Ariz. 2002). Defendants have made no
showing that the Court's determination was manifestly
erroneous, have presented no new facts, and have produced no
new legal authority that could not have been brought to its
attention earlier with reasonable diligence to justify its
request. The Court stands by its prior determination.
the Court concluded that it need not determine whether
Arizona had adopted a version of the filed rate doctrine
because, even had it done so, the doctrine would not bar
jurisdiction here considering the Commission disclaimed
jurisdiction over all issues raised in Plaintiffs'
complaint in its Munday decision, thereby
repudiating application of any filed rate doctrine to this
case. (Id. at 9-11 (citing Doc.
96-1).) Defendants now assert that the Court's
conclusion would be sound had the Commission also disclaimed
its jurisdiction to determine the reasonableness of the
utility's rate. (Doc. 127 at 5.) However, as the Court
explained in its order denying Bribery Defendants' motion
to dismiss (Doc. 120 at 11), the reasonableness of Johnson
Utility's rate is not at issue in this case. Rather,
Plaintiffs are challenging the Bribery Defendants'
conduct in inducing the setting of a higher rate
base. Thus, the Commission disclaimed
jurisdiction over the claims asserted by Plaintiffs, despite
maintaining jurisdiction over the issue of whether the
utility's rate was reasonable in Munday.
Consequently, any potential filed rate doctrine would be
inapplicable here, and certification of a file rate doctrine
question to the Arizona Supreme Court would be inappropriate.
IS ORDERED that Defendants' motion to certify
question to the Arizona Supreme Court (Doc. 127) is
 Defendants' request for oral
argument is denied because the issues are adequately briefed
and oral argument will not help the Court resolve the motion.
See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f); Lake
at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev.,
933 F.2d 724, 729 (9th Cir. 1991).
 Defendants assert, without authority
and in the face of contrary Ninth Circuit authority,
Carlin v. DairyAm., Inc., 705 F.3d 856, 868 (9th
Cir. 2013) (citing Verizon Del., Inc. v. Convad
Commc'ns Co., 377 F.3d 1081, 1089 (9th Cir. 2004)),
that the Commission cannot repudiate the filed ...