MEMORANDUM RULING

REBECCA F. DOHERTY, District Judge.

Pending before this Court are two motions filed by defendant Sea Robin Pipeline Co., L.L.C. ("Sea Robin"), as follows: (1) Motion for Summary Judgment on State Law Grounds [Doc. 80], and (2) Motion for Summary Judgment on Federal Preemption [Doc. 81]. Both motions are opposed by plaintiff Medco Energi US, L.L.C. ("Medco") [Docs. 84 & 85], and Sea Robin has filed Motions for Leave to File Reply briefs in connection with both motions for summary judgment [Docs. 86 & 87], which are hereby GRANTED.

In its motion for summary judgment on preemption grounds, Sea Robin argues Medco's state law claims for negligence, negligent misrepresentation, detrimental reliance, fraud, and violations of the Louisiana Unfair Trade Practices Act are preempted by the Supremacy Clause of the United States Constitution under the doctrine of field preemption and the filed rate doctrine, and, specifically with respect to Medco's negligence claims, preemption by FERC proceedings.

Because this Court agrees Medco's claims are barred by one or all of the foregoing preemption doctrines, this Court need not consider Sea Robin's motion for summary judgment on state law grounds. Accordingly, Sea Robin's motion for summary judgment on federal preemption is GRANTED, and Medco's claims against Sea Robin are DENIED AND DISMISSED WITH PREJUDICE as preempted by federal law. Sea Robin's motion for summary judgment on state law grounds is DENIED as moot.

I. Factual and Procedural History

The following facts are undisputed:1

In its motion for summary judgment, Sea Robin argues it transports natural gas produced by companies such as Medco via Sea Robin's pipeline from points on the outer continental shelf to transportation facilities onshore. The gas is then transported throughout the United States. Sea Robin argues it sustained losses in excess of $118,000,000.00 as a result of damage to its facilities during Hurricane Ike, which crossed the Gulf of Mexico in mid-September 2008. Facilities owned by Sea Robin in the "West Leg" are the focus of the instant litigation. Sea Robin acknowledges all producers on the West Leg, including Medco, were shut in while Sea Robin repaired its pipeline damage.

On May 19, 2009, Medco filed suit against Sea Robin in the Fifteenth Judicial District Court for the Parish of Lafayette, Louisiana. In its petition, Medco asserts claims against Sea Robin for negligence, detrimental reliance, negligent misrepresentation, fraud, and violations of Louisiana's Unfair Trade Practices Act ("LUTPA"), La.Rev.Stat. § 51:1401, et seq. The gist of Medco's claims against Sea Robin is that Sea Robin misrepresented when Sea Robin would be ready to resume transportation to its pipeline. Therefore, Medco's alleged damages arise from reliance on that representation and thus the alleged resultant delayed access to pipelines operated by Sea Robin following Hurricane Ike in September 2008. Medco argues Sea Robin had a regulatory duty to provide "open and nondiscriminatory access to its pipelines;" "a duty to ensure that its representations concerning repairs to the pipeline system were accurate;" and "a duty to repair its pipelines in a reasonable manner once it had undertaken a duty to do so and committed to that duty with its public and private representations." Medco alleges Sea Robin's repairs to its pipelines were grossly inadequate; its representations concerning those repairs either negligently or intentionally inaccurate; and its return to service so delayed as to cause great economic harm to Medco. Medco avers it would not have sustained the economic damages it did had Sea Robin accurately represented its inspection and repair efforts, including the date the lines could reasonably have been returned to service as Medco argues but for the misrepresentation, it would have undertaken substantial expense to tie into a competitor's line much earlier than the date Sea Robin finally returned to service.4

Despite pleading several different theories of liability, Medco seeks damages under each theory which are virtually identical, i.e., for damages related to its inability to "market its production;" to "get its production to market in a timely manner;" and a reduction in the "marketable value" of its properties. Medco also seeks exemplary damages under LUTPA. In essence, Medco asserts Sea Robin owes lost revenue and/or business interruption damages due to the damage sustained to Sea Robin's pipeline.

Sea Robin removed the case on June 12, 2009, invoking both this Court's diversity jurisdiction and jurisdiction under 43 U.S.C. § 1349(b)(1) and 28 U.S.C. § 1331, arguing the claims asserted by Medco assert "a case or controversy arising out of, or in connection with, an operation on the Outer Continental Shelf which involves exploration, development or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves right to such minerals......" 43 U.S.C. § 1349(b)(1).

On March 22, 2012, Sea Robin filed two motions for summary judgment. In one motion, Sea Robin seeks dismissal of Medco's claims on grounds all of the claims are preempted by the Natural Gas Act, 15 U.S.C. § 717, et seq., or, alternatively, by the Filed Rate Doctrine. In the second motion, Sea Robin seeks dismissal of Medco's claims on grounds they are barred by start law doctrines.

II. Law and Analysis

A. Applicable Law

Sea Robin argues, and Medco does not appear to dispute, that federal jurisdiction in this matter is found. Although argument is made jurisdiction couches under the Outer Continental Shelf Lands Act (OCSLA),5 43 U.S.C. § 1331 et seq, "OCSLA" adopts the law of the adjacent state (Louisiana) as surrogate federal law, to the extent that it is not inconsistent with other federal laws and regulations. "Thus the law applicable is `federal law, supplemented by state law of the adjacent state.'" Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003) (citations omitted); see also 43 U.S.C. § 1333(a)(2)(A).

Pursuant to the language of OCSLA, Sea Robin argues OCSLA typically applies the law of an adjacent state as surrogate federal law where there is no otherwise applicable federal law with which state law would be inconsistent. Sea Robin alleges all of Medco's claims sound in tort under the laws of the state of Louisiana; however, "each of Medco's claims cannot survive since the civil law of Louisiana is not applicable or Louisiana law is otherwise inconsistent with federal law and regulations...." Sea Robin goes on to argue:

Neither party disputes that preemption by way of federal law is the gravamen of the substantive issue at hand; otherwise applicable federal law would apply, and neither disputes, jurisdiction would still exist. However, if preemption does not operate, neither disputes plaintiffs claims are couched pursuant to Louisiana law by way of OCSLA, and jurisdiction would again exist. Although this matter presents in a less than ideal manner for jurisdictional purposes as preemption is argued in a manner as to suggest an affirmative defense, neither disputes jurisdiction rests with this Court under OCSLA and/or diversity in order to decide the threshold question presented, and this Court agrees, as OCSLA would provide a jurisdictional base in either instance.

B. Summary Judgment Standard

"A party against whom a claim, counterclaim, or cross-claim is asserted or declaratory judgment is sought may, at any time, move with or without supporting affidavits for summary judgment in the parties favor as to all or any part thereof." Fed. R. Civ. Pro. 56(b). Summary judgement is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Pro. 56(c).

Fed. R. Civ. Pro. 56(e)

As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994):

The Supreme Court has instructed:

Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (emphasis added)).

The Fifth Circuit has further elaborated:

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citations and internal quotations omitted).

Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Id. To the contrary, "in reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party, as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th Cir.2001).

Because, if granted, the motion addressing federal preemption would dispose of the entire case, the Court will address that motion first.6

1. Sea Robin's Motion for Summary Judgment on Federal Preemption [Doc. 81]

A. Field preemption

Sea Robin is a natural gas company engaged in the interstate transportation of natural gas within the meaning of the Natural Gas Act of 1938 ("NGA"), 15 U.S.C. § 717, et seq. The NGA states in relevant part:

15 U.S.C. § 717(a) & (b) (emphasis added).

It is undisputed Sea Robin is subject to the jurisdiction of the Federal Regulatory Energy Commission ("FERC"), the regulatory body charged with implementation of the NGA.8 See 15 U.S.C. § 717b. FERC regulates, inter alia, the rates charged, and services provided by, natural gas companies. The question in the instant case is whether Medco's state law claims are preempted by the NGA.

Questions of federal preemption require an examination of congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988). The Supreme Court has noted preemption of state law by federal statute or regulation is not favored "in the absence of persuasive reasons-either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981), citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963).9

Federal preemption generally takes one of three forms: (1) express preemption; (2) implied preemption, which includes the concept of field preemption; and (3) conflict preemption. Within the concept of implied preemption, "field preemption" can be inferred where federal law "is sufficiently comprehensive to make reasonable the inference that Congress `left no room' for supplementary state regulation," or "the federal interest [in the field] is so dominant" that it "preclude[s] enforcement of state laws on the same subject."10 Castro v. Collecto, Inc., 634 F.3d 779, 785 (5th Cir.2011). See also Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988) (courts may infer field preemption "where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where the object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose.")

Sea Robin does not argue express or conflict preemption applies in this case, but rather that Medco's claims are barred by the doctrine of field preemption. To determine whether field preemption applies in this case, this Court must examine the federal regulatory regime relating to the transportation of natural gas to determine whether it leaves room for state negligence, fraud, and unfair trade practices claims giving rise to a pipeline's alleged misrepresentations in informing its customers when its pipeline will be repaired and when the transportation of natural gas will resume.

The federal regulatory scheme at issue in this case — the NGA — is a "comprehensive scheme of federal regulation of `all wholesales of natural gas in interstate commerce.'" Schneidewind, 485 U.S. at 300, 108 S.Ct. 1145, citing Northern Natural Gas Co. v. State Corporation Comm'n. of Kansas, 372 U.S. 84, 91, 83 S.Ct. 646, 650-51, 9 L.Ed.2d 601 (1963), quoting Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682, 74 S.Ct. 794, 799, 98 L.Ed. 1035 (1954). As the Court explained in Schneidewind:

In Schneidewind, natural gas companies brought a declaratory judgment action challenging the assertion of jurisdiction over the issuance of securities by the Michigan State Public Service Commission. The Supreme Court affirmed the decision of the Sixth Circuit, holding the state statute seeking to regulate the issuance of securities was preempted by the NGA. Schneidewind, 485 U.S. at 309-11, 108 S.Ct. at 1156. In so concluding, the Court explained the statute in question was "designed to protect investors in the gas company's securities and to protect ratepayers." The Court concluded when applied to natural gas companies, the statute amounted to "a regulation of rates and facilities, a field occupied by federal regulation."12 Id. at 1154.

In Panhandle Eastern Pipe Line Co. v. Public Service Comm'n. of Indiana, 332 U.S. 507, 68 S.Ct. 190, 92 L.Ed. 128 (1947), the Court was called on to determine whether Indiana had the power to regulate sales of natural gas made by an interstate pipeline carrier directly to industrial consumers in Indiana. Concluding the NGA specifically permits states to regulate direct sales of natural gas to consumers but does not permit states to regulate sales for resale (usually to local distributing companies), the Court concluded Indiana had the power to regulate direct sales, as the foregoing activity was not preempted by the NGA. 332 U.S. at 514, 68 S.Ct. 190.

In so holding, the Court noted the express language of the NGA, reasoning Congress had specifically not included direct consumer sales in the field preempted by the federal statute, to wit:

Panhandle, 332 U.S. at 519, 68 S.Ct. 190 (emphasis added).

Medco relies heavily on the case of Pacificorp v. Northwest Pipeline GP, 2010 WL 3199950 (D.Or. June 23, 2010), a district court case that is not binding on this Court. In Pacificorp, Pacificorp was a utility company providing electricity to retail customers; it also owned a power plant in Oregon. Defendant Gas Transmission owned pipeline that delivered gas to the plant pursuant to a transportation agreement, and defendant Northwest Pipeline owned pipeline that interconnected with Gas Transmission's line. Pacific alleged Northwest Pipeline introduced lubricating oil into its pipeline system, which then flowed into Gas Transmissions's pipeline and caused damage to the power plant. It was alleged that Gas Transmissions controlled the gas pipeline that supplied gas to the power plant.

Pacificorp filed suit against, among others, Gas Transmission, alleging Gas Transmission breached both its duty and its contract, which required it to deliver gas that was commercially free from crude oil and other impurities. Although the contract in question did not specify a gas quality standard, it stated the agreement was subject to the applicable tariff filed with FERC. The tariff itself contained a section on gas quality, which required that the gas shipped and transported by Gas Transmission "shall be merchantable at all times complying with quality requirements" set forth in the tariffs, which required the gas to be commercially free from impurities. 2010 WL 3199950, *2.

In the lawsuit, Gas Transmission asserted complete federal preemption, arguing Pacificorp's claims were predicated on the FERC-filed tariff and on subject matter committed exclusively to federal jurisdiction. Pacificorp, however, contended it merely sought to enforce its private, state law contractual rights and the right to be free from negligence. After analyzing the NGA and its purpose,13 the court concluded the following:

Pacificorp, 2010 WL 3199950 at *10 (emphasis added).

Thus, in Pacificorp, the court concluded even though FERC has the authority to ensure the reasonableness of gas quality specifications contained in a FERC-filed tariff, where the parties agree to include those specifications in a contract, a gas company can assert a state law claims for breach of contract against a pipeline company on issues related to the quality of the natural gas.14 As expected, Medco relies heavily on the Pacificorp decision.

For its part, Sea Robin relies heavily on the Supreme Court's recent decision in Kurns v. Railroad Friction Products Corp., ___ U.S. ___, 132 S.Ct. 1261, ___ L.Ed.2d ___ (2012). Although not a case involving the NGA, the Kurns case is one of the Supreme Court's most recent — if not the most recent — detailed discussions of the concept of field preemption vis-a-vis a federal regulatory scheme.

In Kurns, a former railroad employee and his wife brought a products liability action in state court against the manufacturer of asbestos brake pads and the successor in interest to the manufacturer of engine valves containing asbestos, alleging the employee's exposure to the manufacturers' products caused the employee to contract mesothelioma. The employee brought two state law claims: (1) defective design of certain locomotive parts, and (2) failure to warn the employee of the dangers associated with those parts. The issue before the Court was whether the plaintiffs' state law claims were preempted by the Locomotive Inspection Act ("LIA"), which requires, inter alia, that a "railroad carrier ... use ... a locomotive ... when the locomotive ... and its parts ... are in proper condition and safe to operate without unnecessary danger of personal injury...." 132 S.Ct. at 1265.

The Court noted the question before it was not presented in a vacuum. Indeed, the Supreme Court had earlier considered the preemptive effects of the LIA in the case entitled Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926), in which the Court considered the railroad's challenge to two state laws that "prohibited the use within the State of locomotives not equipped" with certain prescribed devices, on grounds the Interstate Commerce Commissions (the agency then vested with the authority to carry out the LIA's requirements) had not required the devices in question, In Napier, the states had argued the requirements under the state laws were not preempted because they were directed at different objectives than the LIA, arguing while the state regulations were intended to protect railroad workers from sickness and diseases, the federal regulation was intended to prevent accidental injury in the operation of trains. 132 S.Ct. at 1267-68.

In rejecting the state's arguments, the Court noted:

Kurns, 132 S.Ct. at 1266, citing Napier, 272 U.S. at 611-13, 47 S.Ct. 207 (internal citations omitted) (emphasis added).

Applying the principles of Napier to the facts in Kurns, the Kurns Court noted:

Kurns, 132 S.Ct at 1267, citing Napier, 272 U.S. at 611-12, 47 S.Ct. 207 (internal citations omitted) (emphasis added).

In Kurns, the petitioners argued the failure to warn claims were not preempted because "the basis for liability for failure to warn ... is not the `design' or `manufacture' of a product, but is instead the failure to provide adequate warnings regarding the products' risks." Id. at 1268. The Court rejected this argument, reasoning:

Id. (internal citations omitted) (emphasis added).

The Court also rejected the petitioner's argument that field preemption extends only to regulations and statutes, and not tort law duties and standards of care:

Kurns, 132 S.Ct. at 1269 (internal citations omitted) (emphasis added).

In the instant case, Medco urges this Court to disregard the Kurns case, calling it "inapposite" on grounds any discussion of field preemption relies heavily on the intent of Congress with respect to a particular federal statutory scheme. Because Kurns involved the LIA and not the NGA, Medco argues the case provides little assistance when determining whether the state law claims in this case asserted are subsumed within the field of the NGA. While this Court agrees the analysis in the instant matter requires a careful analysis of the congressional intent behind the NGA, this Court is not persuaded the Kurns decision provides no guidance whatsoever simply because it involves a different federal regulatory scheme.

This Court's interpretation of the field preempted by the NGA is quite broad. The Supreme Court recognizes the NGA long has been recognized as a "comprehensive scheme of federal regulation of `all wholesales of natural gas in interstate commerce.'" Schneidewind, 485 U.S. at 300, 108 S.Ct. 1145, citing Northern Natural Gas Co. v. State Corporation Comm'n. of Kansas, 372 U.S. 84, 91, 83 S.Ct. 646, 650-51, 9 L.Ed.2d 601 (1963), quoting Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682, 74 S.Ct. 794, 799, 98 L.Ed. 1035 (1954). The Supreme Court has noted in enacting the NGA, Congress drew "within its own regulatory power," the following areas: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.

In the instant case, plaintiff's claims for negligence, negligent misrepresentation, detrimental reliance, fraud, and violations of the LUTPA are all premised on the same facts, i.e., that Sea Robin undertook certain duties to provide transportation service to Medco and that Medco sustained damages to its inability to transport gas through Sea Robin's pipeline system to its customers. Medco characterizes its claims as extra-contractual claims that seek to hold Sea Robin responsible for its own misrepresentations and negligence; Medco argues its claims do not seek to modify the tariff or other contracts between the parties in any way and do not implicate the NGA's anti-monopolization and anti-exploitation policies in any way.

Sea Robin, however, argues by permitting Medco to bring state law claims for negligence — which would seek to impose upon Sea Robin, a regulated carrier, certain state-created duties — imposes upon Sea Robin' the state's version of reasonable service requirements. Sea Robin argues the foregoing is precisely what Congress sought to foreclose by granting regulatory authority over Sea Robin to a federal agency (FERC). Sea Robin avers FERC regulates all matters related to the source of Medco's alleged injuries — i.e., Medco's use of Sea Robin's transportation services — because Sea Robin is a natural gas company engaged in the transportation of natural gas subject to FERC jurisdiction. Sea Robin argues in making claims for damages against Sea Robin, Medco seeks to impose state regulations through state law duties and standards of care, in an area exclusively regulated by FERC.

Pursuant to the jurisprudence, this Court must look to the physical elements affected by the legislation in determining whether the state laws at issue are preempted by the federal regulatory scheme. Indeed, in Kurns, the Court rejected the States' contention that the scope of the preempted field was to "be determined by the object sought through the legislation, rather than the physical elements affected by it." Kurns, 132 S.Ct. at 1266, citing Napier, 272 U.S. at 611-13, 47 S.Ct. 207 (internal citations omitted). The Court noted:

Kurns, 132 S.Ct. at 1268.

Thus, the court found it dispositive that "[t]he federal and the state statutes are directed to the same subject — the equipment of locomotives." Id. Because the States' requirements operated upon the same physical elements as the LIA, the Court held the state laws, "however commendable or however different their purpose," fell within the LIA's pre-empted field. Id. at 1269.

In the instant case, Medco's state law claims seek damages for interruption to gas transportation services. Although Medco couches its claims in terms of negligence — i.e., negligence, negligent misrepresentation, and detrimental reliance, which is premised upon a duty — the gravamen of Medco's claims is that Sea Robin breached its contract to provide gas transmission services and failed to timely repair its pipeline in the wake of a hurricane so that gas transmission services were timely returned. Indeed, the damages Medco seeks are damages related to its inability to "market its production;" to "get its production to market in a timely manner;" and a reduction in the "marketable value" of its properties. In essence, Medco asserts Sea Robin owes lost revenue and/or business interruption damages due to the damage sustained to Sea Robin's pipeline. However, within the NGA, Congress drew within its regulatory power (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale. Therefore, despite couching its claims in terms of negligent conduct in the part of Sea Robin, the gravamen of the claims asserted by Medco are for business damages associated with Medco's inability to sell production, which is the subject of the tariff and such inability allegedly was occasioned by Sea Robin's failure to timely provide gas transportation. Although the purposes of Louisiana negligence laws and standards of care might serve a purpose other than that articulated by the NGA — i.e., the regulation of all wholesales of natural gas in interstate commerce, a zone Congress has determined is "in the public interest" — this Court concludes because the state law tort claims alleged by Medco against Sea Robin operate upon the same physical elements as the NGA — i.e., the transmission of gas by a pipeline company, whether timely or not — Medco's state law tort claims fall within the NGA's pre-empted field. This Court notes, however, the question at issue as well as the jurisprudence is not as clear as one might desire, and this Court recognizes the opposing argument is not without merit. However, considering existing jurisprudence, this Court finds the stronger argument supports the finding that the field is pre-empted.

B. Filed Rate Doctrine

Out of an abundance of caution and given the uncertainty within the area of law, and as an alternative grounds for dismissing Medco's claims as preempted, this Court will, also, address Sea Robin's argument that Medco's claims are preempted by the filed rate doctrine. Concluding that Medco's claims are so preempted, this Court finds as follows.

The filed rate doctrine applies by virtue of the Supremacy Clause and bars claims that conflict with a tariff, or would vary or enlarge a party's rights as defined by a tariff. The Supreme Court's treatment of the filed rate doctrine in Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) ("AT & T") is instructive, and has been noted by the Fifth Circuit to be "the leading and controlling case in this area." See Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694, 711 (5th Cir.1999), citing Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998).

The AT & T case involved preemption under the Communications Act, 47 U.S.C. § 203, et seq. AT & T, the long-distance telephone company, is a common carrier under the Act and must observe certain requirements imposed by that law. Among other things, the Act requires that common carrier file "schedules," also known as "tariffs," containing all of their charges for interstate service and "all classifications, practices, and regulations affecting such charges." The Federal Communications Commission (FCC), the agency responsible for enforcing the Act, requires carriers to sell long-distance services to resellers such as the respondent, COT, under the same rates, terms, and conditions as apply to other customers. 524 U.S. at 217, 118 S.Ct. 1956.

In the 1980's, AT & T developed a type of long-distance service that COT wished to purchase and resell. In October 1989, COT contacted AT & T about purchasing the service, and discussed the proposed purchase with an AT & T sales representative, who indicated if COT purchased the service, certain installation charges would be waived and COT would receive a discount off the basic rates in exchange for a 4-year commitment to purchase. Id. at 218, 118 S.Ct. 1956. AT & T also sent certain brochures describing the service to COT. AT & T confirmed COT's order would be "pursuant to the rates, terms and conditions in AT & T's tariff, and the provisions of the tariff including limitations on AT & T liabilities, shall govern the parties' obligations and liabilities with respect to the service and options you have selected." Id. at 219, 118 S.Ct. 1956. COT accepted these terms in writing on October 30, 1989.

Thereafter, COT began experiencing problems with the network, including delays in the filling of orders and in billing. In September 1992, COT informed AT & T it was terminating its service with 18 months remaining on its contract. Id. at 220, 118 S.Ct. 1956.

Meanwhile, COT had filed suit against AT & T in federal district court. Although AT & T argued throughout the pendency of the lawsuit that COT's state-law contract and tort claims were pre-empted by the filed tariff requirements of § 203 of the Act, the magistrate judge rejected such argument, and two state law claims went to trial: (1) breach of contract, including breach of an implied covenant of good faith and fair dealing; and (2) tortious interference with contractual relations vis-a-vis COT's contracts with its customers. The court characterized COT's claims in the following manner:

Id. at 220-21, 118 S.Ct. 1956 (emphasis added).

After a full jury trial, the jury found for COT on its state law claims and awarded COT $13 million in lost profits. The magistrate judge reduced the amount and, on appeal, the Ninth Circuit affirmed the underlying judgment, but reversed and remanded to the magistrate judge on an issue related to punitive damages. Id. at 221, 118 S.Ct. 1956. The Supreme Court granted certiorari solely to determine whether the filed rate requirements of the Communications Act preempted COT's state law claims, a contention AT & T had made throughout the case.

On appeal, the Supreme Court noted the Communications Act required AT & T to filed with the FCC its tariff schedules, showing all charges, classifications, practices and regulations affecting such charges. Commenting on the Ninth Circuit's ruling, the Supreme Court noted:

Id. at 223, 118 S.Ct. 1956 (internal citations omitted) (emphasis added).

Concluding COT's claims sought privileges that were not included in AT & T's tariff — despite the fact that COT argued AT & T had intentionally misrepresented the benefits COT would obtain if it purchased the long-distance service — the Supreme Court concluded COT's state law claims were barred by the filed rate doctrine. With respect to COT's tortious interference claim, the Court concluded this claim was wholly derivative of COT's breach of contract claim. Emphasizing the rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier, the Court concluded COT's tort claim "stem[med] from the alleged failure of AT & T to comply with its contractual relationship" with COT. Thus, the Supreme Court concluded COT's tort claim was also barred by the filed rate doctrine. Id. at 227-28, 118 S.Ct. 1956.

The filed rate doctrine applies to natural gas tariffs filed with FERC, Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981),15 and, like the Communications Act, does not apply solely to rates, but also to the "rules and regulations affecting or pertaining to such rates or charges." See 15 U.S.C. 717c.16 In clear cut cases where the plaintiff's state law claims evidence a challenge to the terms of a filed tariff, the result is relatively simple: The filed rate doctrine bars the plaintiff's state law claims. However, as the Eleventh Circuit stated in Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308, 1315 (11th Cir.2004):

(internal citations omitted).

Such a question is presented in the instant case. Medco argues it does not challenge the rates, per se, contained within Sea Robin's tariff, as follows:

Despite Medco's arguments, courts in other circuits have concluded a claim for compensatory damages may implicate the filed rate doctrine not only where it expressly challenges a rate, but where it has the effect of challenging the filed rate. For example, in Marcus v. AT & T Corp., 938 F.Supp. 1158 (S.D.N.Y.1996), aff'd, 138 F.3d 46 (2nd Cir.1998), the gravamen of the plaintiffs' claims was that AT & T deceived its customers by failing to disclose residential service customers are billed per minute rounded up to the next higher full minute for long distance service. That billing practice did not appear on AT & T bills or on any other materials sent to customers, but did appear in tariffs filed with the FCC. Plaintiffs filed suit against AT & T alleging claims for deceptive acts and practices, false advertising, fraud and deceit, negligent misrepresentation, breach of warranty, and unjust enrichment, essentially challenging AT & T non-disclosure of the billing policy. AT & T argued the filed rate doctrine barred all claims, and the district court agreed. The Second Circuit affirmed. In ruling for AT & T, the court rejected plaintiffs' argument that their claims did not engage the filed rate doctrine because they attacked AT & T's non-disclosure of its residential long distance rates rather than the reasonableness of those rates, noting the filed rate doctrine "applies as stringently to claims challenging the individual application of the filed rate, as it does to claims challenging the general integrity of that rate." 938 F.Supp. at 1170.

The court also rejected plaintiffs' argument that their claims should proceed because they alleged a fraud on the public, explaining:

Id. at 1170. See also Evanns v. AT & T Corp., 229 F.3d 837 (9th Cir.2000) (where plaintiff challenged AT & T's non-disclosure of its collection of certain pass-through charges which were not required by regulation, court held where AT & T had filed its tariff with the FCC, any claim that AT & T had an obligation to plaintiff "beyond those set out in the filed tariffs, i.e., that [AT & T] had a duty to disclose the fact that the USF assessment was a pass-through charge, is ... barred by the filed-rate doctrine."); Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308, 1315 (11th Cir.2004) (concluding plaintiff's state law claims, which sought monetary damages for certain undisclosed charges, implicated the filed rate doctrine, noting "even if a claim does not directly attack the filed rate, an award of damages to the customer that would, in effect, result in a judicial determination of the reasonableness of that rate is prohibited under the filed rate doctrine.").

The Fifth Circuit touched on the issue in Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694 (5th Cir. 1999). In Access Telecom, an American telephone company, ATI, a telephone company based in Texas, exported U.S. phone services to customers in Mexico. 197 F.3d at 701. "These services allowed Mexican customers to place U.S.-based phone calls directly from Mexico. Customers first called ATI in Texas and then entered the new phone number they wanted to call. ATI dialed that new number from the U.S. and effectively spliced the customer's first call to the new call, enabling the customer to communicate with the new destination. As a result, each call had two legs: the Mexican leg from Mexico to Texas and the U.S. leg from Texas to the final destination. The benefit to ATI's customers from this arrangement was that the cost of the two-legged call was less than the cost of a normal call from Mexico through Telefonos de Mexico (Telmex)." Id.

The Mexican leg of each call was carried on toll free numbers that ATI received from MCI, which leased the numbers for these lines from Telmex. ATI's contracts with MCI incorporated the terms and conditions of MCI's U.S. filed tariffs. Although Mexican law required a permit to be a provider of telecommunications services in Mexico, ATI never obtained one. Consequently, Telmex discontinued ATI's 800 numbers, which ultimately destroyed ATI's business. Id. at 702.

Thereafter, MCI began arbitration proceedings to recover payment of ATI's phone bill. ATI then sued MCI, Telmex and others in Texas state court, alleging claims for breach of contract, tortious interference with contract, negligent misrepresentation, promissory estoppel (detrimental reliance), and federal and state antitrust violations. The case was removed to federal district court, and MCI moved for summary judgment on grounds all of ATI's state law claims were preempted. Id. at 703.

The district court held the filed rate doctrine barred ATI's claims for negligent misrepresentation and breach of contract.18 Id. at 703. On appeal, the Fifth Circuit distinguished the holding of AT & T — which had held the filed rate doctrine barred COT's tortious interference claims against AT & T on grounds the tort claims were derivative of COT's breach of contract claim — as follows:

Id. at 711 (emphasis added).

Like the plaintiff in AT & T, Medco's state law claims rest on allegations that its relationship with Sea Robin is not limited by Sea Robin's tariff, but also includes extra-contractual obligations or duties arising because of certain representations Sea Robin made after Hurricane Ike, namely, that Sea Robin was undertaking repairs to its pipeline, was repairing the damaged pipeline within a certain time frame, and would return the pipeline to service within a certain time frame. Medco argues once Sea Robin made those representations, the representations created new duties and obligations on the part of Sea Robin with respect to the provision of gas transmission services. Although Medco attempts to skirt the issue of the existence of the filed tariff in this case by couching its claims in terms of torts — and not breach of contract — the tort claims for negligence, negligent misrepresentation, detrimental reliance, fraud and violations of LUTPA are actually derivative of the obligations imposed on Sea Robin by its tariff, which governs the relationship between the parties.

The Supreme Court in AT & T, however, did not allow such claims, noting the rights as defined by [a] tariff cannot be varied or enlarged by either contract or tort of the carrier, and concluding where the plaintiff's tort claim "stem[med] from the alleged failure of AT & T to comply with its contractual relationship," such claim was barred by the filed rate doctrine. Id. at 227-28, 118 S.Ct. 1956. AT & T, 524 U.S. at 227-28, 118 S.Ct. 1956.

Again, Medco has not alleged a breach of contract claim. However, this Court notes the strong argument that Medco should not be allowed to skirt the issue by not alleging a breach of contract claim, but rather alleging claims that would be derivative of a breach of contract claim, had one been pled. Medco's tort claims stem from Sea Robin's alleged failure to comply with certain extra-contractual duties and obligations Medco argues existed because of certain representations made by Sea Robin. Similarly, in Marcus, the plaintiffs did not allege a breach of contract claim, but rather, couched all of their claims in tort, arguing AT & T deceived its customers by failing to disclose certain billing practices.19 The Marcus court barred plaintiffs' claims, explaining:

Id. at 1170 (emphasis added).

In the instant case, Medco seeks damages related to its inability to "market its production;" to "get its production to market in a timely manner;" and a reduction in the "marketable value" of its properties. The nature of Medco's claimed damages are, that it wishes to be made whole, which would essentially alter the rate charged by Sea Robin under its tariff; any damages awarded to Medco would result in a refund of a portion of the filed rate. It would seem, such damage awards are barred by well-settled jurisprudence.

The Court is mindful of the Fifth Circuit's ruling in Access Telecom; however, this Court believes the instant case is distinguishable from Access Telecom. In Access Telecom, the Fifth Circuit determined the plaintiff's state law claims for tortious interference were not derivative of a breach of contract claim because the claim did not implicate the service provided by MCI. As the court stated: "[Plaintiff's tort claim] does not concern the provision of services which are covered by the filed tariff, but rather it concerns illegal actions outside the scope of the tariff and not derivative of any phone services. Therefore, the filed rate doctrine does not preempt ATI's tortious interference claims." 197 F.3d at 711.

In the instant case, however, Medco's claims implicate the service of Sea Robin and is clearly derivative of those services. Indeed, Medco seeks to be made whole for its inability to sell any production from EC317 and 318 since Hurricane Ike and its inability to sell production from EC316 since its purchase in February 2009. Thus, the remedy sought by Medco is its lost profits during that time period, occasioned by Sea Robin's alleged failure to provide gas transmission services, and those services are the subject of "tariff" in this matter. The fact that Medco couches its claims in terms of what Sea Robin promised or did not promise about the services, which are the subject of the "tariff, does not inactivate the bar of the filed rate doctrine, so to speak. Because the remedy sought herein would effectively refund a portion of the filed rate, and thus, would have clear impact on the amounts paid under the "tariff," Medco's tort claims seeking such remedy are barred.

Considering the foregoing, this Court concludes Medco's state law claims for negligence, negligent misrepresentation, detrimental reliance, fraud and violations of the LUTPA are barred by the filed rate doctrine.20

III. Conclusion

For the foregoing reasons, IT IS ORDERED that Sea Robin's Motion for Summary Judgment on Preemption Grounds [Doc. 81] is GRANTED, and Medco's claims against Sea Robin are DENIED AND DISMISSED WITH PREJUDICE as preempted by federal law. Sea Robin's Motion for Summary Judgment on State Law Grounds [Doc. 80] is DENIED as moot.

This Court believes the foregoing ruling is dispositive of all claims brought in the instant case. Therefore, the parties shall submit a final judgment, approved as to form, within ten days of the date of this Ruling.