Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 1 of 26
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
`
`
`MICHAEL F. SHORT, as TRUSTEE
`of the MICHAEL F. SHORT LIVING
`TRUST, and SHORT FR, LTD., a
`Texas limited partnership,
`
`
`Plaintiffs,
`
`
`vs.
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`PARK ELECTRIC COOPERATIVE
`INC., and ARTHUN RANCH INC.,
`
`
`Defendants.
`
`
`CV 19-31-BLG-TJC
`
`
`
`ORDER
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`
`
`
`
`
`
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`Plaintiffs Michael F. Short, as Trustee of the Michael F. Short Living Trust,
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`
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`and Short FR, LTD., a Texas limited partnership, (collectively, “Short”), filed this
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`action against Defendants Park Electric Cooperative, Inc. (“PEC”), and Arthun
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`Ranch, Inc. (“Arthun”), alleging various causes of action related to the provision of
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`electrical service on Short’s property and easements for electrical distribution lines.
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`(See generally Doc. 1.)
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`Short’s Complaint asserts claims for declaratory judgment on easement
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`rights (Counts 1 and 2); obstruction of, interference with, and breach of easement
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`(Count 3); injunctive relief (Count 4); unjust enrichment as to PEC (Count 5);
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`unjust enrichment as to Arthun Ranch (Count 6); and violation of the Montana
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`Consumer Protection Act as to PEC (Count 7). (Id. at 10-19.)
`1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`BILLINGS DIVISION
`
`
`MICHAEL F. SHORT, as TRUSTEE
`of the MICHAEL F. SHORT LIVING
`TRUST, and SHORT FR, LTD., a
`Texas limited partnership,
`
`
`Plaintiffs,
`
`
`vs.
`
`PARK ELECTRIC COOPERATIVE
`INC., and ARTHUN RANCH INC.,
`
`
`Defendants.
`
`
`CV 19-31-BLG-TJC
`
`
`
`ORDER
`
`
`
`
`
`
`
`
`Plaintiffs Michael F. Short, as Trustee of the Michael F. Short Living Trust,
`
`
`
`and Short FR, LTD., a Texas limited partnership, (collectively, “Short”), filed this
`
`action against Defendants Park Electric Cooperative, Inc. (“PEC”), and Arthun
`
`Ranch, Inc. (“Arthun”), alleging various causes of action related to the provision of
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`electrical service on Short’s property and easements for electrical distribution lines.
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`(See generally Doc. 1.)
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`Short’s Complaint asserts claims for declaratory judgment on easement
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`rights (Counts 1 and 2); obstruction of, interference with, and breach of easement
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`(Count 3); injunctive relief (Count 4); unjust enrichment as to PEC (Count 5);
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`unjust enrichment as to Arthun Ranch (Count 6); and violation of the Montana
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`Consumer Protection Act as to PEC (Count 7). (Id. at 10-19.)
`1
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 2 of 26
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`Pending before the Court are Arthun’s Motion to Dismiss under Fed. R. Civ.
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`P. 12(b)(1) and (6) (Doc. 6), and PEC’s Motion for Judgment on the Pleadings
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`under Fed. R. Civ. P. 12(c) (Doc. 11). The motions are fully briefed and for the
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`following reasons, the Court orders (1) that Arthun’s motion is GRANTED in part
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`and DENIED in part; and (2) PEC’s motion is GRANTED in part and DENIED
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`in part.
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`I.
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`Factual Background
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`The following pertinent facts are taken from Short’s Complaint, which are
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`accepted as true for purposes of Defendants’ motions.1
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`Short owns two sections of real estate which are situated immediately north
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`of a section of land owned by the State of Montana (“state section”). (Doc. 1 at ¶¶
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`7-8.) Arthun Ranch owns two sections of real estate stacked due south of the state
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`section. (Id. at ¶ 9.) Short is building a residence on their property and wish to
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`establish electrical service. (Id. at ¶ 10.)
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`1 Like a motion under Fed. R. Civ. P. 12(b)(6), when considering a motion for
`judgment on the pleadings under Rule 12(c), the Court accepts all factual
`allegations in the complaint as true and construes them in the non-movants favor.
`Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The same standard is
`applied to a motion to dismiss for lack of standing. Chandler v. State Farm Mut.
`Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010).
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`2
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 3 of 26
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`Short has an easement over the state section which allows for the placement
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`of electrical distribution lines from the state section/Arthun border to Short’s
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`property. (Id. at ¶ 14.) The Arthun property is also encumbered by several
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`easements in favor of Short’s property and PEC, described below. (Id. at ¶15.)
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`In 1956, Arthun’s predecessor in interest granted an easement across the
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`Arthun property to PEC (“1956 Easement”). (Id. at ¶ 16.) The 1956 Easement
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`gave PEC “the right to enter upon [lands including the Arthun Property] . . . and to
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`place, construct, operate, repair, maintain, relocate and replace thereon and in or
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`upon all streets, roads or highways abutting said lands an electric transmission or
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`distribution line or system . . . .” (Id. at ¶ 18.)
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`In 1989, Arthun also granted an easement over the north end of the Arthun
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`property to Short’s predecessor “for purposes ordinarily and reasonably associated
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`with the ownership and use of the servient lands including . . . the installation of
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`utility lines and cables . . . .” (Id. at ¶¶ 20, 21.) The easement runs north from the
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`termination of the “Anderson Road” for a distance of approximately 175 feet to
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`connect with the Short’s easement on the state section. (Id. at ¶ 23.)
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`Then, in 2008, Arthun granted an additional easement across the Arthun
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`property to Short’s predecessor. (Id. at ¶ 24.) The 2008 Easement was “granted
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`for purposes ordinarily and reasonably associated with the ownership and use of
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`the dominant lands including . . . the existence of a residence which may be built
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`3
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 4 of 26
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`upon the dominant lands . . . [and] the installation of utility lines and cables . . . .”
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`(Id. at ¶ 26.) The boundaries of the 2008 Easement are identical to the boundaries
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`of the 1989 Easement. (Id. at ¶ 27.)
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`There is an existing electrical distribution line on Arthun’s property that runs
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`north along PEC’s easement for approximately three miles, which provides
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`electrical service to the Arthun Ranch. (Id. at ¶ 11.) The line terminates at the
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`Arthun Ranch buildings, approximately 700 feet south of the state section. (Id. at
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`¶¶ 12.) The distance between the termination of the existing distribution line and
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`Short’s easement at the end of Anderson Road is unquantified, but relatively close.
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`(See Doc. 1-1.)
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`Seeking to establish electrical service to their property, Short informed
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`Arthun of their intention to connect the existing distribution line to the state section
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`easement. (Id. at ¶ 28.) Arthun declined access to the existing line. (Id. at ¶ 29.)
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`Thereafter, Short submitted a written service request to PEC in December 2017 to
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`establish electrical service from the existing distribution line. (Id. at ¶ 30.) But
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`PEC represented to Short that PEC does not have an easement to cross Arthun’s
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`property for that purpose, and advised Short that the only feasible option was to
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`establish another underground line along the Anderson Road to connect with
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`Short’s 1989 and 2008 easements. (Id. at ¶¶ 32, 78, 79.) The proposed line would
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`roughly parallel the Arthun’s existing distribution line. (Id. at ¶ 33.)
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`4
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 5 of 26
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`PEC estimated the cost of the new distribution line would be $83,000, while
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`connecting from Arthun’s existing line to the same end point would only cost
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`$3,750. (Id. at ¶ 38; see Doc. 1-1.) Short also alleges they have expended
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`approximately $100,000 to supply temporary power to their property for the past
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`three years pending the resolution of its request. (Id. at ¶ 39.)
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`When electrical access via the existing distribution line was ultimately
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`denied, this action ensued.
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`II. Legal Standards
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`A.
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`Fed. R. Civ. P. 12(b)(6) and (c)
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`A Rule 12(c) motion for judgment on the pleadings is “functionally
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`identical” to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon
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`which relief can be granted. Cafasso, United States ex rel. v. General Dynamics
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`C4 Systems, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Thus, the same legal
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`standard “applies to motions brought under either rule.” Id.
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`
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`“Dismissal under Rule 12(b)(6) is proper only when the complaint either (1)
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`lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a
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`cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013)
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`(quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
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`2008)). The Court’s standard of review under Rule 12(b)(6) is informed by Rule
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`8(a)(2), which requires that a pleading contain “a short and plain statement of the
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`5
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 6 of 26
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`claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677–678
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`(quoting Fed. R. Civ. P 8(a)).
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`
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`To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
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`contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Id. at 678. “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. A
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`plausibility determination is context specific, and courts must draw on judicial
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`experience and common sense in evaluating a complaint. Levitt v. Yelp! Inc., 2014
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`WL 4290615, *10 (9th Cir. 2014).
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`
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`B.
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`Fed. R. Civ. P. 12(b)(1)
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`A Rule 12(b)(1) motion to dismiss is the proper vehicle to challenge
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`standing because it relates to a federal court’s subject matter jurisdiction.
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`Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
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`In considering such a motion, a court must accept all material allegations in the
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`complaint as true and construe the complaint in the nonmovant’s favor. Id. (citing
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`Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir. 2002)). “General
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`factual allegations of injury resulting from the defendant’s conduct may suffice, as
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`we ‘presum[e] that general allegations embrace those specific facts that are
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`6
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 7 of 26
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`necessary to support the claim.’” Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 907
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`(9th Cir. 2011) (quoting Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 889 (1990)).
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`II. DISCUSSION
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`A. Motions to Dismiss Counts 2 & 3 - Standing.
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`In Count 2 of the Complaint, Short seeks a declaratory judgment under Fed.
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`R. Civ. P. 57 and 28 U.S.C. § 2201 that PEC has a right to access the Arthun
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`property to install utility lines from the existing distribution line to the border of
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`the state section for the purpose of providing Short with electrical service. (Doc. 1
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`at ¶ 48.) In Count 3, Short alleges that PEC and Arthun have wrongfully prevented
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`Short from connecting to the existing line, as permitted under the 1956, 1989, and
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`2008 easements. Both Defendants move to dismiss Count 2 and the portion of
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`Count 3 which is based on the 1956 easement. The Defendants maintain that Short
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`lacks standing to assert the claim because Short is not a party to or intended
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`beneficiary of the agreement. (Doc. 7 at 2-3; Doc. 12 at 5-6.)
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`
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`Short concedes that they are not a direct party to the 1956 Easement, but
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`argue that their ownership of property within PEC’s exclusive service area entitles
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`them to a judgment determining whether they have the right to access electrical
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`services via the existing distribution line. (Doc. 19 at 18.)
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`In an action for declaratory judgment, an actual case or controversy must
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`exist so that “the judgment does not become an unconstitutional advisory opinion.”
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`7
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 8 of 26
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`Rhoades v. Avon Prod., Inc., 504 F.3d 1151, 1157 (9th Cir. 2007). This
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`requirement stems from Article III of the U.S. Constitution, which limits judicial
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`power to resolving actual cases and controversies. U.S. CONST. art. III, § 2, cl. 1.
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`Standing determines whether the plaintiff is the proper party to bring the matter to
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`the court for adjudication. Chandler, 598 F.3d at 1122. “In essence the question
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`of standing is whether the litigant is entitled to have the court decide the merits of
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`the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To
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`establish standing, the party asserting federal subject matter jurisdiction has the
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`burden of proof. Chandler, 598 F.3d at 1121-22.
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`The U.S. Supreme Court has determined the “irreducible constitutional
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`minimum of standing” consists of three elements: injury-in-fact, causal connection,
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`and redressability. Chandler, 598 F.3d at 1122 (citing Lujan v. Defenders of
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`Wildlife, 504 U.S. 555, 560-61 (1992); see also Lexmark Int’l, Inc. v. Static
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`Control Components, Inc., 572 U.S. 118, 125 (2014). Each element will be
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`discussed in turn.
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`1.
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`Injury-in-Fact
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`The first element, injury-in-fact, requires a showing of an “invasion of a
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`legally protected interest which is (a) concrete and particularized, and (b) actual or
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`imminent, not conjectural or hypothetical.” Chandler, 598 F.3d at 1122 (quoting
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`Lujan, 504 U.S. at 560). To establish a legally protected interest here, Short
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`8
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 9 of 26
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`invokes obligations created under Mont. Code Ann. Title 69, Chapter 3 relating to
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`the regulation of public utilities in the state of Montana. Specifically, Short relies
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`heavily on Mont. Code Ann. § 69-3-201, which reads:
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`Every public utility is required to furnish reasonably adequate service
`and facilities. The charge made by any public utility for any heat,
`light, power, water, or regulated telecommunications service
`produced, transmitted, delivered, or furnished or for any service to be
`rendered as or in connection with any public utility shall be
`reasonable and just, and every unjust and unreasonable charge is
`prohibited and declared unlawful.
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`Mont. Code Ann. § 69-3-201. Short argues that § 69-3-201 creates a duty in PEC
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`to furnish reasonably adequate electrical service to Short in exchange for a
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`reasonable and just charge, and argues PEC has violated that duty by requiring
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`Short to pay for three miles of new, redundant line as a condition of obtaining
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`electrical service. (Doc. 19 at 10-11.)
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`Upon closer analysis, however, it appears that § 69-3-201 may not apply
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`here. Title 69, Chapter 3 of the Montana Code pertains to the regulation of public
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`utilities by the Montana Public Service Commission. It provides for the “full
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`power of supervision, regulation, and control of public utilities, subject to the
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`provisions of [Chapter 3].” The chapter further provides for statutory guidance for
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`the Public Service Commission, and imposes certain requirements for public
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`utilities within the chapter.
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`9
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 10 of 26
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`As Short acknowledges, however, PEC is a rural electrical cooperative.
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`(Doc. 19 at 14.) As such, it is governed by the provisions of Mont. Code Ann.
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`Title 35, Chapter 18, pertaining to “Rural Cooperative Utilities.” That chapter
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`makes clear that “[c]ooperatives . . . transacting business in this state pursuant to
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`this chapter are exempt in all respects from the jurisdiction and control of the
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`public service commission.” Mont. Code Ann. § 35-18-104. Therefore, PEC is
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`exempt from regulation of the public service commission, and does not appear to
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`be within the purview of Title 69, Chapter 3, including § 69-3-201.
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`Even if this section does not apply to PEC, however, the Montana Supreme
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`Court has also recognized that electric cooperatives must conduct themselves in a
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`reasonable manner in dealing with their members and prospective members. In
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`Howe v. Big Horn Elec. Co-op., Inc., 670 P.2d 936, 938 (Mont. 1983), for
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`example, an electrical cooperative required residential customers to pay any
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`outstanding balance of the previous occupant’s account before it would supply
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`electricity. The plaintiff brought suit, alleging that the requirement “amounted to
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`extortion and an unfair trade practice in violation of Sections 30-14-103 and 45-6-
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`317, MCA.” Id. at 937.
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`On appeal, the Montana Supreme Court acknowledged that the relationship
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`between the co-op and each member is contractual in nature, and members are
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`bound by their contractual agreements. But the Court also found that cooperatives
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`10
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 11 of 26
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`“hold a favored position in the law,” and “cooperative members are often in a
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`disadvantageous position with respect to the cooperative, as they are in rural areas
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`which are less likely to be served by a public utility and must rely on the
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`cooperative for power.” Id. at 938. The Court found “[t]his disparity between the
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`relative positions gives rise to an obligation on the part of the Cooperative to deal
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`in a reasonable manner with its members.” Id.
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`The Montana Supreme Court later reaffirmed this obligation when dealing
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`with a prospective member. In Granbois v. Big Horn Cty. Elec. Co-op., Inc., 986
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`P.2d 1097, 1102 (Mont. 1999), the Court again considered a cooperative’s
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`requirement that a utility customer pay any outstanding charges on the previous
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`customer’s account before a membership could be transferred. Relying on Howe,
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`the Court found that “a disparity in the relative positions of the consumer and the
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`cooperative necessarily requires the cooperative to deal with its members
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`reasonably.” Id. In light of this duty, the Court found “requiring potential
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`customers to pay a previous member’s delinquent bill in full is an unreasonable
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`restriction of the electric consumer’s access to electric service.” Id. Accordingly,
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`the Court ordered that partial summary judgment be entered in favor of the
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`plaintiff.
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` Therefore, even in absence of § 69-3-201’s applicability, the Montana
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`Supreme Court has recognized an electrical cooperative’s obligation to deal with
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`11
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 12 of 26
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`its members and potential members in a reasonable manner. The fact that the
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`Montana Supreme Court ordered partial summary judgment in Granbois based on
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`that obligation - and the potential member’s corresponding right - demonstrates
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`that it is legally enforceable. While the contours of this right have not been well
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`defined, it provides a sufficient basis to state a plausible claim here.
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`Short also sufficiently alleges an injury based on this duty. Short alleges
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`that PEC owns the existing line; the line is located on a right-of-way in favor of
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`PEC granted under the 1956 Easement; new electrical service was sought through
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`contact with Arthun and a written request to PEC; access and service was
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`unreasonably denied; an alternative new line was proposed at an unreasonable cost
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`($83,000) compared to using the existing line ($3,750); and such denial also
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`resulted in additional costs of approximately $100,000 to provide temporary power
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`and loss of enjoyment of Short’s property for more than three years. (Doc. 1 at ¶¶
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`11-13, 16, 18, 20-35, 37-39, 46-47; see also Doc. 1-1.) These allegations
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`sufficiently state an injury-in-fact.
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`2.
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`Causation
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`Under the second standing requirement, a causal connection must exist
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`between the injury and the defendant’s conduct. That is, the injury must be “fairly
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`traceable to the challenged action of the defendant.” Chandler, 598 F.3d at 1122;
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`Lujan, 504 U.S. at 560; Lexmark, 572 U.S. at 125. Short alleges that access to the
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`12
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 13 of 26
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`existing line was wrongfully denied, and that the denial caused monetary damages
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`and loss of full use and enjoyment of their property. (Doc. 1 at ¶¶ 29-39, 46-47,
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`54-57.) Thus, but for the Defendants’ denial of access and new electrical service,
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`Short would not have suffered the costs of temporary electrical service and loss of
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`full use and enjoyment of their property.
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`These factual allegations, presumed to be true for purposes of the current
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`motions, satisfy that denial of access to and service from existing distribution lines
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`caused Short’s injury.
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`3.
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`Redressability
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`Short also satisfies the third element of redressability by asserting plausible
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`allegations that the injury may be redressed through this litigation. To show
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`redressability, it must be shown that the “injury that a plaintiff alleges is likely to
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`be redressed through the litigation. . . .” Sprint Communications Co, L.P. v. APCC
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`Services, Inc., 554 U.S. 269, 287 (2008) (emphasis in original). A plaintiff’s
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`burden to establish redressability is “relatively modest.” M.S. v. Brown, 902 F.3d
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`1076, 1083 (9th Cir. 2018). “[A] plaintiff need only show a substantial likelihood
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`that the relief sought would redress the injury.” Id. (internal citations and
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`quotations omitted.)
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`Here, the relief sought would redress the injury alleged by Short. Short
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`seeks a declaration that PEC has the right to install utility lines from the existing
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`13
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 14 of 26
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`distribution line on Arthun’s property to the state section for the purpose of
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`connecting Short to the existing line, and an order compelling PEC to establish
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`electrical service at a reasonable cost. Thus, the injury alleged by Short – lack of
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`electrical service and the inability to establish service at a reasonable cost – would
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`be redressed by a favorable outcome.
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`Thus, Short has sufficiently alleged all three requirements for constitutional
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`standing.
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` 4. Prudential Standing
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`Arthun Ranch also argues, however, that Short’s claim is not within the
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`bounds of “prudential standing.” (Doc. 21 at 4-5.) Whereas Article III standing
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`poses minimum requirements for constitutional standing, prudential standing is a
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`judicially created doctrine that sets “judicially self-imposed limits on the exercise
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`of federal jurisdiction.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11,
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`(2004), abrogated on other grounds by Lexmark Intern., Inc. v. Static Control
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`Components, Inc., 572 U.S. 118 (2014). One such limitation is the prohibition
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`against third-party standing. That is, “even when the plaintiff has alleged injury
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`sufficient to meet the ‘case or controversy’ requirement . . . the plaintiff generally
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`must assert his own legal rights and interests, and cannot rest his claim to relief on
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`the legal rights of interests of third parties.” Warth, 422 U.S. at 499. The Ninth
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`Circuit has recognized that “[t]his rule ensures that ‘plaintiffs possess such a
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`14
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 15 of 26
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`personal stake in the outcome of the controversy as to assure that concrete
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`adverseness which sharpens the presentation of issues upon which the court so
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`largely depends for illumination of difficult constitutional [or statutory]
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`questions.’” Ray Charles Found. v. Robinson, 795 F.3d 1109, 1119 (9th Cir. 2015)
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`(quoting Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,
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`1057 (9th Cir. 2004)).
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`Arthun argues that Short is seeking to invoke PEC’s rights under the 1956
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`easement, contrary to this prudential standing principle. But Short is not seeking to
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`enforce PEC’s right, or remedy PEC’s injury, it is litigating its own stake in this
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`controversy. While Short is not a party to the 1956 Easement, they are basing their
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`claim on their status as a property owner within PEC’s exclusive service area, and
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`their claim that PEC has an obligation to deal with them in a reasonable manner.
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`They have alleged that PEC has violated this obligation by refusing to provide
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`reasonably priced electrical services to them by means readily available to PEC.
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`Thus, Short is not attempting to invoke PEC’s right; it is seeking to enforce PEC’s
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`obligation to deal with them in a reasonable manner, and its own claimed right to
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`obtain electrical service at a reasonable charge.
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`Short’s position finds some support in Newcal Industries, Inc. v. Ikon Office
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`Solution, 513 F.3d 1038 (9th Cir. 2008). In Newcal, Ikon had threatened to sue
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`Newcal for interfering with its business relationships with third-parties. Id. at
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`15
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 16 of 26
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`1056. Newcal subsequently sought a declaration that Ikon’s contracts with the
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`third-parties were void and unenforceable, thus allowing it to pursue competing
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`contracts without the risk of potential claims of tortious interference with Ikon’s
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`business relationships. Id. The district court dismissed the claim on the basis that
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`Newcal lacked standing to request a declaration of third parties’ contractual rights.
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`But the Ninth Circuit reversed, finding Ikon’s threat of litigation was sufficient to
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`give Newcal a stake in the controversy, even though it was not a party to the
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`relevant contracts. Id.
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`Similarly, in Ray Charles Foundation, the Foundation received royalties
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`under a copyright granted to a third-party during Ray Charles’ lifetime. Ray
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`Charles Foundation, 795 F.3d at 1112. After Charles’ death, several of his heirs
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`attempted to terminate the copyright grants, which were then held by
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`Warner/Chappell Music. The Foundation brought suit to challenge the
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`terminations. The district court dismissed the case for lack of standing, reasoning
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`that the Foundation was “only asserting Warner/Chappell’s interests in the
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`termination notices,” not its own. Id. at 1115.
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`The Ninth Circuit reversed on appeal, and found that the Foundation was
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`plainly asserting its own legal rights and interests, not Warner/Chappell’s. Thus,
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`the issue of third-party standing was immaterial. The Court reasoned that while
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`Warner/Chappell owned the copyrights, the termination of the copyrights also
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`16
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 17 of 26
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`directly affected the Foundation’s receipt of royalties. Thus, while the termination
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`would affect Warner/Chappell’s ownership of the copyrights, it would also deprive
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`the foundation of the right to receive future royalties. Under those circumstances,
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`the Ninth Circuit had “little difficulty concluding the Foundation is litigating its
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`own stake in this controversy.” Id. at 1119.
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`While Newcal and Ray Charles Foundation are not necessarily factually
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`analogous to this case, both cases illustrate that standing can be established in
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`some circumstances where a party is asserting their own stake in a third-party
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`agreement. Short is similarly litigating their own stake in the controversy here.
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`Since they are asserting their own rights and interests, third-party standing is not an
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`issue.
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`Therefore, the Defendants’ motions to dismiss Count 2, and that portion of
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`Count 3 relative to the 1956 easement, will be denied.
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`B. Motion to Dismiss Count 4 – Claim for Injunctive Relief
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`Count 4 of Short’s complaint is captioned as a claim “for injunctive relief.”
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`(Doc. 1 at ¶ 12.) Short alleges that PEC has a duty under Mont. Code Ann. § 69-3-
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`201 to furnish electrical service and facilities to Short and to avoid unjust or
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`unreasonable charges. (Id. at ¶¶ 56-57.) Alternatively, Short alleges PEC may
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`acquire any interest in Arthun’s property necessary to provide electrical service to
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`Short by eminent domain. (Id. at ¶ 58.) Short then alleges that it is “unreasonable,
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`17
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 18 of 26
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`unfair, and unlawful” to require Short to pay for the construction of a different
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`distribution line. (Id. at ¶ 59.)
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`Arthun moves to dismiss Count 4 on the basis that monetary damages are
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`sufficient to remedy any injury Short may sustain, and therefore injunctive relief is
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`not appropriate. (Doc. 7 at 3.) Short responds by clarifying that they are not
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`seeking any form of injunctive relief as to Arthun. (Doc. 19 at 21-22.) Therefore,
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`to the extent Count 4 can be construed as stating a claim against Arthun for
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`injunctive relief, the claim will be dismissed.
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`PEC does not directly address Short’s claim for injunctive relief, but it does
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`contest the foundation of the claim. PEC argues that it is not subject to Mont.
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`Code Ann. § 69-3-201, and that eminent domain cannot be used for purposes
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`suggested by Short. (Doc. 12 at 6, 9.)
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`Short responds that they are not asking the Court to compel PEC to exercise
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`the power of eminent domain, but asking the Court to recognize that PEC could
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`exercise eminent domain powers and that it is unreasonable and wrong for PEC to
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`withhold electric service unless Short pays for a new underground line. (Doc. 19
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`at 19.)
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`Without addressing the merits of PEC and Short’s specific arguments, the
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`Court finds that Count 4 of the Complaint fails to state a cognizable claim for
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`injunctive relief. “An injunction is an order requiring a person to refrain from a
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`18
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 19 of 26
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`particular act.” Mont. Code Ann. § 27-19-101. It can be granted in limited
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`circumstances, including when “pecuniary compensation would not afford
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`adequate relief,” or “it would be extremely difficult to ascertain the amount of
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`compensation which would afford adequate relief.” Mont. Code Ann. § 27-19-
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`102(1) & (2).
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`Upon reviewing Short’s claim in Count 4, it is unclear what act or action
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`Short is seeking to enjoin. In their response brief, Short appears to distance the
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`claim from one for injunctive relief. (Doc. 19 at 21-24.) Short argues that the
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`parties are confusing their claim for declaratory relief with a claim for an
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`injunction. (Id. at 22.) Short states they are “simply requesting that the Court
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`determine that Short has the right, by virtue of the 2008 Easement, the 1956
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`Easement, or PEC’s eminent domain power, to connect to the existing electrical
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`line.” (Id. at 23.) Indeed, that does not sound like a claim for injunctive relief.
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`But if Short is seeking declaratory relief, as they indicate, it is not evident from the
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`allegations in Count 4. It is also unclear how such a claim for declaratory relief
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`would differ from the declaratory judgment sought in Counts 1 and 2.
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`In any event, PEC’s motion for judgment on the pleadings will be granted as
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`to Count 4 of the Complaint. As currently pled, the allegations of Count 4 fail to
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`allege a cognizable legal theory. But the dismissal will be without prejudice, and
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`19
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 20 of 26
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`Short will be given the opportunity to clarify the basis of their claim and attempt to
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`state a plausible claim for relief, if they chose to do so.
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`C. Counts 5 & 6 – Unjust Enrichment
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`Arthun and PEC both move to dismiss Short’s unjust enrichment claims in
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`Counts 5 and 6 of Complaint on grounds that the claims are not ripe. (Docs. 7 at 9;
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`12 at 10.) Federal courts must dismiss a complaint for lack of subject matter
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`jurisdiction if a claim is not ripe. Richardson v. City & Cty. of Honolulu, 124 F.3d
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`1150, 1160 (9th Cir. 1997). Ripeness depends on the fitness of the issues for
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`judicial consideration and “the hardship to the parties of withholding court
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`consideration.” Id. (quoting Pac. Gas & Elec. Co. v. State Energy Res.
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`Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983)); Chandler, 598 F.3d at
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`1122. The “central concern [of the ripeness inquiry] is whether the case involves
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`uncertain or contingent future events that may not occur as anticipated, or indeed
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`may not occur at all.” Id. (alteration original) (quoting 13A Charles Alan Wright,
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`Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3532 (2d
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`ed. 1984)); Chandler, 598 F. 3d at 1122-23.
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`To establish a claim for unjust enrichment under Montana law, a plaintiff
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`must establish (1) a benefit conferred on one party by another; (2) the other’s
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`appreciation or knowledge of the benefit; and (3) the other’s acceptance or
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`retention of the benefit under circumstances that would render it inequitable for the
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`20
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`Case 1:19-cv-00031-TJC Document 22 Filed 03/16/20 Page 21 of 26
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`other to retain the benefit without compensating the first party for the value of the
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`benefit. Associated Mgmt. Servs., Inc. v. Ruff, 424 P.3d 571, 595 (Mont. 2018),
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`reh’g denied (Sept. 5, 2018); N. Cheyenne Tribe v. Roman Catholic Church ex rel.
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`Dioceses of Great Falls/Billings, 296 P.3d 450, 457 (Mont. 2013).
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`With respect to Short’s unjust enrichment claim against Arthun in Count 6,
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`no benefit has been conferred upon Arthun, and Arthun Ranch has not accepted
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`nor retained such benefit. Short’s unjust enrichment claim is thus unripe. The
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`claim is contingent upon Short constructing a new line, and then Arthun Ranch
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`actually seeking to connect to it.
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`Short’s additional argument that Arthun Ranch will benefit by way of
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`increased agricultural productivity when the existing overhead line is removed
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`from Arthun’s agricultural fields, is similarly uncertain. (Doc. 19 at 25.) It is
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`contingent upon Short constructing a new underground line; Arthun seeking to
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`connect to that underground line; PEC allowing Arthun to connect to that line; the
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`existing line being taken down; and then Arthun Ranch experienc
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