Boston Edison Co. v. United States

67 Fed. Cl. 63, 2005 U.S. Claims LEXIS 227, 2005 WL 1793410
CourtUnited States Court of Federal Claims
DecidedJuly 29, 2005
DocketNos. 99-447C, 03-2626C
StatusPublished
Cited by9 cases

This text of 67 Fed. Cl. 63 (Boston Edison Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boston Edison Co. v. United States, 67 Fed. Cl. 63, 2005 U.S. Claims LEXIS 227, 2005 WL 1793410 (uscfc 2005).

Opinion

ORDER

LETTOW, Judge.

Pending before the court in these spent nuclear fuel cases is Defendant’s Motion to Consolidate or, in the Alternative, for Issuance of a Summons Pursuant to RCFC 14(a) and Notice Pursuant to RCFC 14(b) (“Def.’s Mot.”), filed April 11, 2005. The government seeks to consolidate Boston Edison Co. v. United States, No. 99-447C, with Entergy Nuclear Generation Co. v. United States, No. 03-2626C, which cases were brought by the seller and buyer, respectively, of Pilgrim Nuclear Power Station (“Pilgrim”). Both plaintiffs oppose consolidation. A joint hearing was held on June 14, 2005 to address the pending motion.

For the reasons set forth below, the government’s motion to consolidate is granted in part and denied in part. Consolidation of the cases is ordered for the limited purpose of addressing certain issues that arise in both cases, which issues are identified and delineated in the analysis that follows.

BACKGROUND

Boston Edison Company (“Boston Edison”) entered into a Standard Contract under the Nuclear Waste Policy Act of 1982 (“NWPA”), Pub.L. No. 97-425, § 302, 96 Stat. 2201, 2257-2261 (1983) (codified as amended at 42 U.S.C. § 10222), obligating the Department of Energy (“DOE”) to dispose of spent nuclear fuel (“SNF”) and high-level radioactive waste generated at Pilgrim. Under the Standard Contract, disposal was to begin no later than January 31, 1998. See Boston Edison Co. v. United States, 64 Fed.Cl. 167, 170 (2005). To date, DOE has yet to dispose of any SNF from Pilgrim or from any other nuclear power facility, and disposal is not expected to commence within the foreseeable future. Id. Boston Edison sold the Pilgrim facility to Entergy Nuclear Generation Company (“Entergy”) on July 13, 1999, assigning its Standard Contract to Entergy as part of the purchase agreement. See Entergy Nuclear Generation Co. v. United States, 64 Fed.Cl. 336, 338 (2005).1 As the parties construe the purchase agreement, Boston Edison retained claims that had accrued as of the closing date, while Entergy acquired any later accruing claims. Boston Edison, 64 Fed.Cl. at 170.

Boston Edison and Entergy thus involve the same contract at the same facility. Boston Edison filed its original complaint on July 12, 1999, one day before the sale of the Pilgrim facility. See Boston Edison, 64 Fed.Cl. at 173. In its amended complaint, Boston Edison alleges a partial breach of contract, a breach of the implied duty of good faith and fair dealing, and an uncompensated taking. Id. at 170. Boston Edison alleges damages [65]*65principally measured by the diminution in value of Pilgrim at the time of sale, by expenses incurred in storing SNF prior to the sale, and by the loss attributable to its inability to purchase an earlier disposal time in the SNF queue as allowed under Article V.E. of the Standard Contract. Id. The diminution-in-value claim is succinctly described by Boston Edison’s allegations that “Pilgrim’s value was significantly diminished” by DOE’s breach, and that Boston Edison “realized significantly less value in the sale” because the number of bidders was reduced and because “potential buyers ... reduce[d] their price in order to account for the increased risk” of nuclear power plant ownership resulting from DOE’s breach. Boston Edison Amended Complaint (“Am.Compl.”) K 6. Entergy filed suit on November 5, 2003, also alleging a partial breach of the contract, a breach of the implied covenant of good faith and fair dealing, and an uncompensated taking. Entergy, 64 Fed.Cl. at 338. In its suit, Entergy seeks damages resulting from the ongoing partial breach between July 13,1999 (the date Entergy purchased Pilgrim from Boston Edison) and the end of Entergy’s most recently completed fiscal year prior to trial, retaining the right to bring subsequent actions to collect damages for future periods. Id. at 345-46.

In a notice submitted by Entergy contemporaneously with the filing of its complaint, Entergy advised that Boston Edison’s case was directly related to its suit. This notice complied with Rule 40.2(a) of the Rules of the Court of Federal Claims (“RCFC”). At the time, Entergy’s counsel commented that Boston Edison’s case and Entergy’s newly filed action “may benefit” from consolidation. See Joint Status Report in Entergy at 1 (Feb. 20, 2004) (quoting Notice of Directly-Related Case at 2 (Nov. 5, 2003)). From the outset of Entergy’s case through the present, the two suits have proceeded “in parallel, side by side” before the same judge. Hr’g Tr. at 15 (Mar. 18, 2004) (hearing in Entergy with counsel for Boston Edison also present).2 Thus far, in Boston Edison the court has denied the government’s motions to dismiss and for summary judgment on liability, and it has also denied Boston Edison’s motion for partial summary judgment on liability. See Boston Edison, 64 Fed.Cl. at 170. In Entergy, the court has denied the government’s motion for partial summary judgment on liability and has granted Entergy’s cross-motion. See Entergy, 64 Fed.Cl. at 338. Both plaintiffs as well as the government are beginning pre-trial discovery. See Hr’g Tr. at 13 (June 14, 2005). The parties have represented that Entergy’s ease will require more discovery and will likely take longer to prepare for trial than Boston Edison’s ease. See id. at 27-28.

DISCUSSION

Motions to consolidate are governed by RCFC 42, which provides in part that:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.

RCFC 42(a). “The court has a broad discretion to determine whether consolidation is appropriate.” Cienega Gardens v. United States, 62 Fed.Cl. 28, 32 (2004) (citing Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990); Skirvin v. Mesta, 141 F.2d 668, 672-73 (10th Cir.1944)). In determining whether consolidation is appropriate, the court must weigh the risks of prejudice and possible confusion against “the risk of inconsistent adjudication of common factual and legal issues, the burden on parties, witnesses, and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single [66]*66one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives.” Cienega, 62 Fed.Cl. at 31 (quoting Johnson, 899 F.2d at 1285; Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir.1982)); see also Manhattan Constr. Co. v. United States, 66 Fed.Cl. 299 (2005); Karuk Tribe of California v. United States, 27 Fed.Cl. 429, 433 (1993). “The court should take the positions of the parties into account in its analysis but need not accord the parties’ views dispositive weight.”

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Bluebook (online)
67 Fed. Cl. 63, 2005 U.S. Claims LEXIS 227, 2005 WL 1793410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boston-edison-co-v-united-states-uscfc-2005.