Stone & Webster, Inc. v. Georgia Power Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STONE & WEBSTER, INC. et al.,

Plaintiffs,

v. Civil Action No. 12-1783 (CKK)

GEORGIA POWER COMPANY et al.,

Defendants.

MEMORANDUM OPINION
(August 30, 2013)

This contract action comes before the Court following a highly choreographed “race-to-

the-courthouse” in which the counterparties to an agreement concerning the design and

construction of nuclear electrical generating units in Waynesboro, Georgia sought to file their

mirror-image complaints first in the forum of their choice. On November 1, 2012, Plaintiffs

Stone & Webster, Inc. and Westinghouse Electric Company LLC (together “Plaintiffs”) filed the

instant [1] Complaint against Defendants Georgia Power Company, Oglethorpe Power

Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia

(collectively “Defendants”), asserting claims for breach of contract and violation of the Georgia

Prompt Payment Act, O.C.G.A. §§ 13-11-1 et. seq, arising from Defendants’ alleged refusal to

agree to adjustments to the contract price and project schedule to which Plaintiffs claim they are

entitled. That same date, November 1, 2012, Defendants filed their own action in Augusta,

Georgia, in the United States District Court for the Southern District of Georgia, seeking a

declaratory judgment that Plaintiffs are not entitled to the price and schedule adjustments for

which Plaintiffs previously submitted change orders, as well as refunds of amounts paid by
Defendants to Plaintiffs pursuant to the parties’ provisional payment agreement governing those

change orders. See generally Georgia Power Co. et al. v. Westinghouse Electric Company LLC

et al., Civ. A. No. 112-167 (S.D. Ga.)(JRH-WLB).

Presently before the Court are Plaintiffs’ [11] Motion to Enjoin the Prosecution of

Defendants’ Duplicative Georgia Action and Defendants’ [13] Motion to Dismiss the Complaint,

or in the Alternative, Stay this Action. Upon consideration of the parties’ submissions, 1 the

applicable authorities, and the entire record, the Court shall DENY Plaintiffs’ motion to enjoin

and GRANT Defendants’ motion to dismiss. Accordingly, this action is hereby dismissed,

without prejudice, in its entirety. 2

I. BACKGROUND

The disputes between the parties arise out of the design and construction of two nuclear

electrical generating units at an electric generating plant in Waynesboro, Georgia (the “Project”).

Defendants, who are the owners of the Project, and Plaintiffs, who collectively are the contractor

on the Project, entered into an Engineering, Procurement and Construction Agreement (“EPC

Agreement”), pursuant to which Plaintiffs allegedly agreed to design, engineer, procure,

construct, and test the nuclear electrical generating units and related facilities and structures at

the plant. Compl. ¶ 10.

1
While the Court renders its decision on the record as a whole, its consideration has focused on the following
documents: Pls’ Compl. (“Compl.”), ECF No. [1]; Pls’ Mot. to Enjoin the Prosecution of Defs’ Duplicative Georgia
Action and Mem. of P. & A. in Supp. Thereof (“Pls’ Mem”), ECF No. [11]; Defs’ Mot. to Dismiss the Compl., or in
the Alternative, Stay this Action, and Supporting Stmt. of P. & A. (“Defs’ Mem.”), ECF No. [13]; Defs’ Response in
Opp’n to Pls’ Mot. to Enjoin the Prosecution of Defs’ Duplicative Georgia Action (“Defs’ Opp’n”), ECF No. [23];
Pls’ Reply in Supp. of Mot. to Enjoin the Prosecution of Defs’ Duplicative Georgia Action and Pls’ Opp’n to Defs’
Mot. to Dismiss the Compl., or in the Alternative, Stay this Action and Mem. of P. & A. in Supp. Thereof (“Pls’
Reply/Opp’n”), ECF No. [26]; Defs’ Reply in Supp. of Defs’ Mot. to Dismiss the Compl., or in the Alternative, Stay
this Action (“Defs’ Reply”), ECF No. [28]. In an exercise of its discretion, the Court finds that holding oral
argument on the instant motions would not be of assistance in rendering a decision. See LCvR 7(f).
2
Also pending before the Court is a motion to dismiss in a separate but related action involving the same parties,
Civil Action Number 12-1226. That motion, which raises questions entirely distinct from those at issue here, will be
addressed by separate order.
 The instant Complaint asserts claims for breach of contract and violation of the Georgia

Prompt Payment Act, O.C.G.A. §§ 13-11-1 et. seq, arising from Defendants’ alleged failure to

agree to adjustments to the contract price and project schedule to which Plaintiffs claim they are

entitled. In essence, Plaintiffs claim that, subsequent to the effective date of the EPC Agreement,

the United States Nuclear Regulatory Commission (“NRC”) imposed various unforeseen

directives, requirements, and regulatory changes that required Plaintiffs to make substantial

design changes (hereinafter “Regulatory Changes”), thereby incurring considerable cost and

delay. Plaintiffs contend that the NRC-imposed Regulatory Changes they made constitute

compensable changes under the terms of the EPC Agreement, entitling them to adjustments to

the contract price and project schedule. See generally Compl. For their part, Defendants contend

that the EPC Agreement requires them to pay Plaintiffs a fixed price for designing, building, and

making the Project operational within a guaranteed time limit and that Plaintiffs’ invoices for

amounts greatly exceeding the contractual fixed price are “unjustified.” Defs’ Reply at 3-4.

Defendants further argue that Plaintiffs’ prayer for adjustments to the project schedule and

contract price is simply a request for judicial modification of the EPC Agreement so that

Plaintiffs will be relieved of liability for their delay on the Project and permitted to submit

otherwise unjustified invoices associated with such delay. Id.

Prior to commencement of the instant action, Plaintiffs submitted written notices of the

Regulatory Changes. Subsequently, the parties undertook mediation pursuant to the EPC

Agreement, which requires the parties to first mediate all disputes under the contract and

prohibits the commencement of a civil action until such mediation concludes. As both Plaintiffs

and Defendants represent in their pleadings and supporting declarations, the parties were aware

of the “first-to-file” race to the courthouse that would likely result upon conclusion of an
unsuccessful mediation. See Pls’ Mem. at 8; Defs’ Mem. at 1. For this reason, the parties agreed

that mediation would conclude at a date and time certain – specifically on November 1, 2012, at

8:00 p.m. – and that no lawsuit could be initiated before that time. Id. The events that ensued

are of the kind scarcely encountered outside of the pages of a law school exam.

Plaintiffs filed the instant Complaint by way of this Court’s electronic filing system.

Plaintiffs contend that they, through counsel, clicked the “submit” button at precisely 8:00:00

p.m. on November 1, 2012, according to the United States Naval Observatory Master Clock.

Pls’ Mem. at 8-9; id, Ex. 9 (Decl. of Shawn Chick), ¶ 4; id., Ex. 10 (Decl. of David C. Smith), ¶

4. The transaction log generated by the electronic filing system, a copy of which Plaintiffs have

submitted with their motion to enjoin, lists “11/01/2012 20:00:01” as the “date” corresponding to

the Complaint. Id., Ex. 11.

Defendants, to the contrary, opted to file their own complaint – which both parties

describe as a “mirror image” of Plaintiffs’ Complaint in this Court, see Pls’ Mem. at 1; Defs’

Mem. at 1 – in person and manually in the United States District Court for the Southern District

of Georgia (the “Georgia action”). According to the declaration of Defendants’ counsel, when

both the minute hand and second hand on an iPhone clock indicated the time to be 8:00:00 p.m.,

counsel filed the Georgia action by simultaneously transferring possession of the original

complaint and all requisite accompanying filings to the deputy clerk, whom noted the date

(“November 1, 2012”) and filing time (“8:00 p.m.”) on the documents. Defs’ Mem., Ex B.

(Decl. of Benjamin H. Brewton); see also Pls’ Mem., Ex. 1 (copy of original complaint in

Georgia action).

In view of this duplicative litigation, Plaintiffs have filed a [11] motion requesting that

the Court enjoin Defendants from prosecuting the Georgia action. In brief, Plaintiffs argue that
this Court is the proper Court to hear the parties’ disputes regarding the Regulatory Changes

because it is the court of the first-filed action and because, in any event, equitable considerations

weigh in favor of this Court’s retaining jurisdiction over the dispute. Defendants, on the other

hand, have filed a [13] motion to dismiss, arguing the inverse: that the Georgia action was filed

first and that equitable considerations call for resolution of the dispute in the Southern District of

Georgia. Alternatively, Defendants request that the Court stay the present action to permit the

Southern District of Georgia to determine which court should hear the parties’ dispute.

II. LEGAL STANDARD

District courts have the discretion to dismiss a pending action when faced with parallel

litigation of factually related actions filed in two separate forums. Handy v. Shaw, 325 F.3d 346,

349 (D.C. Cir. 2003). Indeed, as the Supreme Court has observed, “though no precise rule has

evolved, the general principle is to avoid duplicative litigation” between federal district courts.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (citations

omitted). “The usual rule in this circuit has been that where two cases between the same parties

on the same cause of action are commenced in two different Federal courts, the one which is

commenced first is to be allowed to proceed to its conclusion first.” UtahAmerican Energy, Inc.

v. Dep’t of Labor, 685 F.3d 1118, 1124 (D.C. Cir. 2012) (internal editing and citations omitted).

However, the Court of Appeals has also warned against rigid application of the first-filed rule in

cases where the second-filed action deserves priority. See Columbia Plaza Corp. v. Sec. Nat’l

Bank, 525 F.2d 620, 627 (D.C. Cir. 1975). Stated differently, “the decisions recognizing the

first-in-time rule note that ‘equitable considerations’ may weigh against applying it in particular

cases.” UtahAmerican Energy, Inc., 685 F.3d at 1124 (citations omitted); see also Handy, 325

F.3d at 350 (“Although some courts make the determination [as to which district court should
adjudicate the case] by using the so-called ‘first-to-file’ rule, we have emphasized that the

district court must balance equitable considerations rather than using ‘a mechanical rule of

thumb.’”).

One factor weighing against mechanical operation of the first-to-file rule and in favor of

consideration of the equities of a particular case is where, as here, “the two suits were filed

closely together in time.” Int’l Painters & Allied Trades Indus. Pension Fund v. Painting Co.,

569 F. Supp. 2d 113, 116 (D.D.C. 2008) (quoting Fed’n Internationale de Football Ass’n v.

Nike, Inc., 285 F. Supp. 2d 64, 67-68 (D.D.C. 2003)). Another important consideration in this

balancing analysis is whether “the first-filing plaintiff has launched a ‘preemptive strike’ or

declaratory judgment action in the face of an impending ... suit.” Nike, 285 F. Supp. 2d at 67;

accord Thayer/Patricolf Educ. Funding, LLC v. Pryor Res. Inc., 196 F. Supp. 2d 21, 30 (D.D.C.

2002). Other equitable considerations may include whether “the first action was filed in the

midst of good faith settlement discussions”; “whether the cases have progressed very far”; and

“whether full, fair, and complete adjudication of all issues may be had before the present

court[.]” Int’l Painters, 569 F. Supp. 2d at 116 (internal citations and marks omitted). Courts

also tend to consider the convenience and efficiency of proceeding in each forum. See e.g.,

Columbia Plaza, 525 F.3d at 627 (considering whether all parties are present in both cases; the

location of witnesses; and the stage of the respective proceedings); Furniture Brands Int’l, Inc. v.

United States Int’l Trade Comm’n, 804 F. Supp. 2d 1, 7 (D.D.C. 2011) (deferring to parallel

litigation in the Court of International Trade (“CIT”) because, inter alia, the CIT was far more

familiar with the statutes at issue); Thayer, 196 F. Supp. 2d at 32 (considering statement from the

plaintiff that a third party witness willingly volunteered to participate in the inconvenient forum);

Nike, 285 F. Supp. 2d at 68 (“[T]he fact that a motion requiring expedited consideration has been
filed only in the infringement action, and that precious time would be lost if that motion had to

be refiled in the other court, argues in favor of allowing the second-filed action to proceed.”).

Finally, at least one other court in this district has also considered as part of its balancing of the

equities of parallel suits the “local interest in having localized controversies decided at home.”

Villa v. Salazar, --- F. Supp. 2d ---, 2013 WL 1245759, *5 (D.D.C. 2013) (transferring action by

California Indian tribe leader to enjoin Department of Interior’s acquisition in trust of a parcel of

land in California for Indian gaming purposes to Eastern District of California) (quoting MBI

Grp., Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568, 576 (D.C. Cir. 2010)).

III. DISCUSSION

Preliminarily, the Court observes that both Plaintiffs and Defendants readily

acknowledge that the instant action and the Georgia action are “mirror-image” suits regarding

the invoices submitted by Plaintiffs in connection with the Regulatory Changes. Accordingly,

there is no question that the parties’ claims arise out of the same transaction such that they

should – for judicial economy – be resolved in a single forum. See Handy, 325 F.3d at 350.

The parties have submitted extensive briefing and supporting declarations on the issue of

whether the instant Complaint (which Plaintiffs contend was filed “between 8:00:00 p.m. and

8:00:01 p.m.,” Pls’ Mem. at 4) or Defendants’ complaint in the Georgia action (which bears a

hand-written note from the deputy clerk of court indicating a filing time of “8:00 p.m.,” see Pls’

Mem., Ex. 1 (copy of original complaint in Georgia action)) was filed first. The Court need not,

and in the interest of judicial economy, shall not reach this issue. This is because the Court

finds, in an exercise of its discretion, that even if Plaintiffs were the first to file suit, equitable

considerations weigh overwhelmingly in support of resolution of the parties’ dispute by the

Southern District of Georgia.
 Most evident, one factor counseling against mechanical application of the first-to-file rule

in this case is the fact that the “two suits were filed closely in time,” Int’l Painters, 569 F. Supp.

2d at 116 – here, within, at most, seconds. As aforementioned, courts also tend to consider

whether either of the cases has “progressed very far” and “whether full, fair, and complete

adjudication of all issues may be had” before the courts. Id. Here, these two factors are in

equipoise, as neither court has proceeded to making any merits determinations; nor does the

Court have any reason to believe that either forum would not be capable of providing full, fair,

and complete adjudication of the parties’ dispute.

While, based on the foregoing factors, neither court stands apart as the clearly superior

forum, the Court must consider whether there are other “equitable considerations genuinely

relevant to the ends of justice” weighing in favor of either court. Columbia Plaza, 525 F.3d at

628. For reasons explained below, the Court finds that proceeding in the Southern District of

Georgia would be significantly more convenient and efficient for both the federal judiciary and

the parties and would additionally promote the “local interest in having localized controversies

decided at home.” Villa, --- F. Supp. 2d ---, 2013 WL 1245759, *5 (quoting MBI Grp, 616 F.3d

at 576). Accordingly, and because Plaintiffs fail to convince the Court that any other equitable

considerations weigh in favor of proceeding with the instant suit, the Court shall dismiss

Plaintiffs’ Complaint, without prejudice, in favor of the Georgia action.

A. Equitable considerations favor resolution of the parties’ dispute through the
Georgia action.

First, the Court notes that trying this case in the Southern District of Georgia would

increase judicial efficiency for the simple reason that the Southern District of Georgia possesses

greater familiarity with the laws applicable to the instant dispute, as the EPC Agreement is

governed by Georgia law. See Defs’ Mem., Ex. A (EPC Agreement excerpts), § 34.1 (“The
validity, construction, and performance of this Agreement shall be governed by and interpreted

in accordance with the laws of the State of Georgia, without giving effect to the principles

thereof relating to conflicts of laws.”). Additionally, Plaintiffs’ Complaint also raises claims

under the Georgia Prompt Payment Act, O.C.G.A. §§ 13-11-1 et. seq. Although there is no

question of this Court’s competency to decide questions of statutes or contract interpretation

under the law of any state, the Southern District of Georgia has, for obvious reasons, far more

familiarity in applying principles of Georgia contract and statutory law to the cases before it. See

Furniture Brands Int’l, 804 F. Supp. 2d at 7 (D.D.C. 2011) (deferring to parallel litigation in

another court, noting that that court was far more familiar with the statutes at issue).

Second, the Court agrees with Defendants that trying the merits of the parties’ causes of

action in the Southern District of Georgia would permit easier access to relevant evidence. Most

obviously, the construction site itself is in Waynesboro, Georgia, which lies within the

geographic boundaries of the Southern District of Georgia. Additionally, Defendants have

proffered a declaration from David McKinney, Vice President of Construction Support for

Southern Nuclear Operating Company Nuclear Development, cataloging – with impressive

specificity – several potential witnesses with knowledge of the claims, all of whom are primarily

located in Georgia (with most residing and working in or near Augusta). See Defs’ Mem. Ex B

(Decl. of David L. McKinney), ECF No. [13-2] at 38 (hereinafter “McKinney Decl.”), ¶ 9.

Plaintiffs argue that many potential witnesses are located in Pennsylvania, North

Carolina, Indiana, California, and Maryland, and that this Court is the more convenient forum for

these witnesses and the parties alike, given the easier air access to and from the two international

airports in Washington, D.C., as opposed to the single regional airport in Augusta, Georgia.

However, air travel would be required for almost all of these witnesses in either venue. When
weighed against the significant number of witnesses based in Augusta, Georgia, the mere fact

that certain flights may be less frequent or of longer duration is of little moment. Furthermore,

as many of the witnesses identified by Plaintiffs are Plaintiffs’ own employees, the Court would

be hard-pressed to find that Plaintiffs would be inconvenienced by sending their own employees

to the site of the very Project that they have contracted to design and construct. There mere fact

that certain non-party NRC witnesses are located in Washington, D.C., similarly carries little

weight in the face of the significantly greater number of witnesses located in the Augusta area.

Finally, the Court agrees with Defendants that the ties between the parties’ dispute and

the Southern District of Georgia are numerous and undeniable. The nuclear generating units that

are the subject of the EPC Agreement are being constructed for the purpose of meeting the future

energy demands of Georgia residents, see McKinney Decl., ¶¶ 2, 5, and the power plant is the

largest employer in Burke County, Georgia, as the construction and operation of the two units at

issue in this case are expected to create a total of 4,000 to 5,000 jobs at the site, including

approximately 800 permanent jobs and 3,500 construction jobs, id. ¶ 5. Furthermore, as

Defendants contend and Plaintiffs nowhere dispute, much of the cost related to the construction

of the Project or changes in the Project schedule will occur primarily at the project site in

Georgia, and the cost of the Project potentially will impact the cost of electricity in the state of

Georgia. See id. ¶ 7.

Clearly, the Project is a local project with significant local effects – a consideration

counseling strongly in favor of resolution of the instant dispute by the Southern District of

Georgia. To be sure, the Court does not disagree with Plaintiffs that the viability of nuclear

power is a national, not simply a local, concern. However, the mere fact that the development of

nuclear electrical generating units generally bears national import does not detract from the
undoubtedly significant impact of this particular Project on Georgia and its citizens. By

contrast, other than the fact that the parties submitted to the non-exclusive jurisdiction of this

Court, the District of Columbia has no material ties to the present dispute. Neither party is

located in the District of Columbia; nor have Plaintiffs made any showing that the Project will

have any impact whatsoever on the District or its citizens.

For all of the foregoing reasons, the Court finds that the balance of equitable factors

unquestionably favors resolution of the instant dispute by the Southern District of Georgia

instead of by this Court.

B. Plaintiffs’ arguments against dismissal of the instant action are unavailing.

As a threshold matter, Plaintiffs argue that the Court should decline to consider

Defendants’ equitable arguments because the parties’ expressly named this Court as a proper

forum in their contract and Defendants in fact contractually waived their challenges to venue in

this Court. Specifically, Plaintiffs rely upon Section 34.3 of the EPC Agreement, which

provides:

34.3 Venue. The Parties agree to the non-exclusive jurisdiction of the United
States District Court for the District of Columbia for any legal proceedings that
may be brought by a Party arising out of or in connection with this Agreement
or for recognition or enforcement of any judgment. Each party accepts,
generally and unconditionally, the jurisdiction of the aforesaid court for legal
proceedings arising out of or in connection with this Agreement. Each party
hereby waives any right to stay or dismiss any action or proceeding under or in
connection with this Agreement brought before the foregoing court on the basis
of forum non-conveniens or improper venue. For the avoidance of doubt, the
Parties do not, by this Section 34.3, waive any first-to-file challenges to venue.

Pls’ Mem., Ex. 7 (EPC Agreement excerpts), § 34.3.

Plaintiffs’ reliance on this provision is flawed. Preliminarily, while this section contains

a permissive forum selection clause establishing this district as a proper forum, this is in no way

dispositive of the first-to-file analysis, as it is by its terms non-exclusive. Furthermore,
Defendants are not arguing that venue is improper under 28 U.S.C. § 1390 or §1391; nor have

they sought a transfer on forum non-conveniens grounds pursuant to 28 U.S.C. § 1404. Rather,

Defendants have raised a first-to-file challenge to venue, which the above-excerpted provision of

the EPC Agreement expressly authorizes. Defendants’ reference to (and the Court’s

consideration of) convenience and other such equitable factors are simply part-and-parcel of the

first-to-file analysis under binding Circuit authority. See, e.g., Handy, 325 F.3d at 350 (“[T]he

district court must balance equitable considerations rather than using ‘a mechanical [first-to-file]

rule of thumb.’”) (emphasis added).

Plaintiffs also attempt to characterize the Georgia action as an anticipatory and

preemptive declaratory judgment action, arguing that Defendants’ complaint in that action

contains nothing more than defenses dressed up as claims, designed solely to deprive Plaintiffs’

of their right as the “true plaintiffs” to have their claims heard in the court of their choosing. The

argument lacks merit. To be sure, Plaintiffs are correct that one key consideration in the first-to-

file balancing of the equities analysis is whether the first-filing plaintiff has launched a so-called

preemptive strike or declaratory judgment action in the face of an impending suit. See supra Part

II; cf. Int’l Painters, 569 F. Supp. 2d at 117 (“[A] preemptive filing is not dispositive.”).

However, for the below reasons, this is clearly not what happened here.

As all parties acknowledge, the two cases are “mirror-image” actions. Plaintiffs seek

price adjustments totaling over $900 million resulting from Defendants’ alleged failure to bear

the costs of the Regulatory Changes that have and will be incurred by Plaintiffs, see generally

Compl. Defendants, on the other hand, seek a declaratory judgment that Plaintiffs are not entitled

to certain price and schedule adjustments as well as recovery over $100 million in alleged out-

of-pocket losses resulting from Plaintiffs’ alleged breach of the provisional payment provision of
the EPC Agreement by, inter alia, ignoring the contractual fixed price and presenting invoices to

Defendants that are not justified under the agreement, see generally Pls’ Mem., Ex. 1 (copy of

original complaint in Georgia action). More specifically, Defendants contend that they paid 50%

of the invoice amounts, provisionally and under protest. See Defs’ Reply at 4. Defendants made

these payments pursuant to Section 8.5(b) of the EPC Agreement, which requires such

provisional payment of half of all disputed invoices pending resolution of the parties’ dispute.

See Pls’ Mem., Ex. 12 (EPC Agreement excerpts), § 8.5(b). Notably, Section 8.5(b) expressly

provides that such “[p]ayment shall not waive [Defendants’] right to dispute an invoice.” Id.

This language plainly suggests that Defendants have an affirmative right to seek a declaration

from the Court that Plaintiffs are responsible for the costs associated with the Regulatory

Changes and, resultantly, a ruling ordering Plaintiffs to reimburse Defendants for the over $100

million already paid on the disputed change order invoices. Furthermore, as Defendants contend

and Plaintiffs nowhere dispute, the total dollar amount of the change orders alleged by Plaintiffs

in the instant suit is not currently due and owing, but rather, is calculated based on the forecasted

value of “additional” services Plaintiffs claim they will perform over the course of the next

several years. See Defs’ Opp’n at 4, 22. See also generally Compl. Accordingly, large portions

of Plaintiffs’ claims may themselves be fairly characterized as claims for prospective,

declaratory relief. At bottom, both parties claims are mixed claims for coercive and declaratory

relief, as both parties seek a judicial determination that under the terms of the EPC Agreement,

the other party bears all past and future costs resulting from the Regulatory Changes.

Plaintiffs’ argument that Defendants are not “true plaintiffs” is further discredited by the

dispute resolution provisions of the EPC Agreement, which require the parties to mediate

disputes regarding invoices and unambiguously provide that, if mediation fails, “with respect to a
Claim 3 that exceeds the Claim Threshold Amount, either Party shall have the right to proceed to

litigation of such Claim in a court of competent jurisdiction.” See Defs’ Mem., Ex. A (EPC

Agreement excerpts), § 27.4(a)(i) (emphasis added). Accordingly, the plain language of the EPC

Agreement supports the position that Defendants were equally entitled to pursue claims for

breach of the schedule and payment provisions of the EPC agreement and to seek refund of the

$100 million they already contributed toward the allegedly unjustified change orders invoices as

Plaintiffs were to seek adjustments to the contract price and schedule terms relating to the

Regulatory Changes.

Basic logic, too, supports this interpretation of the parties’ dispute. As Defendants

astutely observe, Plaintiffs’ position that Defendants are not “true plaintiffs” would require this

Court to find that Defendants have no claim for breach of the provisional payment, schedule, and

invoicing provisions of the EPC Agreement – or at least not unless and until Plaintiffs first

decide to litigate the validity of the change orders. This, however, leads to the untenable

conclusion that Plaintiffs would be free to submit invoices for an unlimited amount of charges,

whether justified or not, and then demand that Defendants pay 50% of those invoices under

Section 8.5(b) of the EPC Agreement – effectively an interest-free loan – and that Defendants

would be without recourse to recoup those payments until and unless Plaintiffs filed suit.

Finally, while not dispositive on the issue, it bears mention that Plaintiffs’ contention that

Defendants disingenuously raced to the courthouse merely to preempt Plaintiffs’ filing in this

Court is belied by the record. As evidenced by the Parties’ agreement as to the date and time

mediation would “conclude” for purposes of filing suit, and the carefully orchestrated race to the

court house that ensued, Plaintiffs – at least impliedly – acknowledged the possibility of a suit by

3
The EPC Agreement also clearly defines a claim for the purposes of this contract: “[a] “Claim” is any claim,
dispute, or other controversy arising out of or relating to this Agreement, including Change Disputes.” Defs’ Mem.,
Ex. A (EPC Agreement excerpts), § 27.1.
Defendants. As Defendants convincingly argue, this is simply “not a case where the putative

first-filed plaintiff ‘misled [the other party], or engaged in stall tactics to lull him into a false

sense of security as they finalized [and filed] their [c]omplaint while his gaze was averted’ in

order to achieve ‘some actual or perceived forum shopping advantage.’” Defs’ Reply at 7-8

(quoting Chambers v. Cooney, Civ. A. No. 07-0373-WS-B, 2007 WL 2493682, at *5 (S.D. Ala.

Aug 29, 2007)). 4

In summary, the parties’ course of conduct, language of both parties’ complaints, the

EPC Agreement, and basic logic compel the Court to conclude that the instant action and the

Georgia action are simply flip-sides of a single coin. At bottom, both parties seek a judicial

determination that, under the terms of the EPC Agreement, the other party should bear the cost of

the Regulatory Changes and accordingly that that other party is in breach of its contractual

obligations and owes the complainant a sum certain to compensate for that breach. This scenario

is a far cry from cases finding declaratory judgments entitled to less deference in a first-to-file

analysis. Compare, e.g., Lewis v. Nat’l Football League, 813 F. Supp. 1, 4 (D.D.C. 1992) (suit

seeking a declaratory judgment that the NFL bore no anti-trust liability for a first

refusal/compensation restriction was a preemptive strike designed solely to obstruct anti-trust

4
Quite to the contrary, Plaintiffs went so far as to try to win the race to the courthouse in advance, by
filing in the Southern District of Georgia an “emergency petition” to have that district court direct the
clerk of the court to refuse to accept Defendants’ manually-filed complaint after business hours – a
motion which the Honorable J. Randall Hall denied as without legal basis. See Defs’ Mem., Ex. C (copy
of Oct. 31, 2013 Order, Stone & Webster et al. v. Georgia Power Company et al., Misc. A. No. 112-013
(S.D. Ga.) (JRH)). Similarly, on October 30, 2012, Plaintiffs filed a motion in a related action before this
Court, Civil Action No. 12-1226, which sought an order declaring that the complaint Plaintiffs would
ultimately file in the instant action be predetermined by this Court to have been filed as of 8:00:00 p.m.
on November 1, 2013. See Stone & Webster, Inc. et al. v. Georgia Power Co. et al., Civ. A. No. 12-1226
(CKK), ECF No. [33]. The undersigned denied that motion by Minute Order on November 6, 2012. See
id., Min. Order (Nov. 6, 2012) (“The Court declines to address a request for preemptive relief relating to a
separate action which, at the time the instant motion was filed, had not even been commenced.
Furthermore, with respect to the subject matter of Plaintiffs’ request, the Court notes that the docket
speaks for itself.”).
suits brought by players in other fora and was therefore not entitled to the protection of the first-

to-file rule); Fed’n Internationale De Football Ass’n v. Nike, Inc., 285 F. Supp. 2d 64, 68

(D.D.C. 2003) (giving trademark infringement suit priority over earlier filed action seeking only

declaratory judgment that use of a particular phrase was not trademark infringement because,

among other equitable considerations, the declaratory judgment action was clearly nothing more

than a preemptive strike).

IV. CONCLUSION

For all of the reasons stated herein, the Court finds that equitable considerations

unequivocally support a conclusion that the instant dispute should be decided by the United

States District Court for the Southern District of Georgia instead of by this Court. Accordingly,

and because all of Plaintiffs’ arguments to the contrary are unavailing, Plaintiffs’ [11] Motion to

Enjoin the Prosecution of Defendants’ Duplicative Georgia Action is DENIED, and Defendants’

[13] Motion to Dismiss the Complaint is GRANTED. This action is hereby dismissed without

prejudice so that Plaintiffs may remain free to assert their claims as counterclaims in the Georgia

action.

An appropriate Order accompanies this Memorandum Opinion.

Dated: August 30, 2013

_________/s/ ______________
COLLEEN KOLLAR-KOTELLY
United States District Judge