and that it will determine any damages arising from any breach of contract or violation of the antitrust laws.
Although United acknowledges that the FPC cannot set the rate which Monsanto has to pay United for its gas, FPC v. Louisiana Power & Light Co., 406 U.S. 621, 640-41, 32 L. Ed. 2d 369, 92 S. Ct. 1827 (1972), it argues that a stay should be granted because the FPC will consider the price of service in deciding whether to allow abandonment of service to Monsanto. United Gas Pipe Line Co., Docket No. CP 73-117, et al., at 2-3 (Feb. 12, 1973). Moreover, United points out that the Monsanto abandonment proceeding is being expedited before the FPC, and the FPC may soon reach an abandonment decision.
This Court recognizes that the FPC has no special contract expertise, and that courts should not defer to it in that area. Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 4 L. Ed. 2d 1208, 80 S. Ct. 1122 (1960). In granting a stay, however, the Court is not deferring to any price decision which the FPC may reach. Rather it is staying its hand to allow the FPC to make the abandonment decision which both parties acknowledge that only it can make. The evidence and findings of those proceedings, although not binding, may and probably will be useful to the Court in its determination of the issue of this case. Judicial economy dictates that the same factual dispute not go forward simultaneously if the FPC determination may aid the resolution of the matter through determining the quantity of gas on which potential damages will need to be computed. An FPC determination on abandonment will put this case in a far more concrete context. Monsanto in no way will be prevented from making any claims for damages at whatever gas delivery schedule is determined.
The Court, however, recognizes that delay in the abandonment decision by the FPC may materially harm Monsanto in the prosecution of this case. Moreover, the FPC has no power to insulate utilities under its regulation from the operation of the antitrust acts, or to determine whether an antitrust violation has taken place. Otter Tail Power Co. v. United States, 410 U.S. 366, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973). Therefore, the Court will stay this suit only until December 22, 1973, or until the completion of the abandonment proceeding before the FPC administrative law judge, if that proceeding is completed before that date. Of course, at the expiration of the stay, either party may move for a continuation of the stay based on the facts and circumstances present at that time.
Therefore, it is, this 25th day of June, 1973, Ordered
That the motion of the defendant to stay the proceedings in this case be and the same is hereby granted, and this case is stayed until December 22, 1973, or until such other date as may be appropriate under the terms of this Memorandum.
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