duty by failing "to acquire additional gas reserves" and by releasing to third parties "gas reserves already dedicated to its system when it was unwise and imprudent to do so."
Again, Louisiana law concededly controls. That law, however, does not establish a fiduciary relationship merely because a seller possesses "exclusive control" over the Res to be sold to the purchaser. Neither side has cited any Louisiana case where a fiduciary duty arose in circumstances analogous to those here presented. The plaintiff draws several inferences from Louisiana Civil Code Articles 1901, 1907 and 1908; but this Court will not read into these general provisions a cause of action which does not satisfy the fiduciary relationship prerequisites specifically set out in State v. Hagerty, 251 La. 477, 205 So.2d 369, 374-75 (1967), Cert. denied 391 U.S. 935, 88 S. Ct. 1848, 20 L. Ed. 2d 855 (1968). See also Klotz v. Gertrude Gardner, Inc., 293 So.2d 601, 603 (La.App.1974); Clinkenbeard v. Central Southwest Oil Corp., 526 F.2d 649, 653-54 (5th Cir. 1976).
Under those standards, a fiduciary relationship arises only when the business transacted by the claimed fiduciary, "or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person . . . ." State v. Hagerty, supra, 205 So.2d at 375. Texasgulf makes no allegation and has been unable to show either that United's gas reserves were "owned" by Texasgulf prior to delivery or that the business in which United was engaged during the relevant time period was not for its own benefit, but rather for Texasgulf's benefit. Nothing more has been alleged or shown than that the two parties, after long, arduous, and hard-fought negotiations, entered in 1967 into an arm's-length agreement. Texasgulf also apparently concedes that United never expressly assumed any fiduciary duty. Consequently, the defendant is entitled to summary judgment on Count III.
Dismissal of Count III does not, however, mean that plaintiff may never assert or prove its claim that United improperly failed to maintain and increase its natural gas reserves in order to insure adequate deliveries of gas, or leased gas to third parties or took on new customers in an unwise and imprudent manner. These allegations may become pertinent should United in any eventual breach of contract trial under Count I attempt to justify its actions on the basis of Force majeure or obeisance to governmental orders. See Usrey Lumber Co. v. Huie-Hodge Lumber Co., 135 La. 511, 65 So. 627, 629-30 (1914). Necessarily, the proper parameters of that trial, as well as of the allegations which the Court would then address, will be determined by the FERC's resolution of the ongoing Phase III proceeding.
The defendant's first counterclaim seeks a declaration that the 1967 contract terminated on December 1, 1977, in accordance with the terms of Article XIV and that, as a result, Texasgulf owes the defendant either the price billed to (but not paid by) Texasgulf, or the fair value, of the gas which United supplied to Texasgulf subsequent to December 1, 1977. The defendant rests on the express terms contained in Article XIV of the 1967 contract. That provision appears to call for the contract's automatic termination if, as of December 1, 1977, the parties did not reach agreement on a new monthly rate. It is not disputed that the parties never arrived at any such accord.
In opposition, Texasgulf contends that, by operation of Louisiana law, the fixed price term in the 1967 contract was "suspended" during the period that United improperly curtailed gas deliveries to Texasgulf. Texasgulf rests in this regard on several cases wherein the Louisiana courts have tolled lease terms where the lessor improperly prevented the lessee from operating the lease, See Gulf Refining Co. v. Hayne, 148 La. 340, 86 So. 891 (1921); Fomby v. Columbia County Development Co., 155 La. 705, 99 So. 537 (1924); Williams v. James, 188 La. 884, 178 So. 384 (1938).
At this summary judgment stage, the Court is without a sufficient factual foundation to determine whether or not the rationale of the cases cited by plaintiff applies or even should apply to this natural gas case. The effect of United's curtailments on the operation of Texasgulf's mine may turn out to be a pertinent consideration in this regard and stands as a disputed issue of fact as between the parties. In addition, Count I of the Complaint remains pending, and within that Count lie issues as to the defendant's fault in creating the FERC's various curtailment orders. The resolution of this counterclaim must, therefore, be stayed pending completion of the Phase III proceedings. Accordingly, the defendant's motion for summary judgment on its first counterclaim is denied in all respects.
In its second counterclaim United seeks recovery under the Emergency Natural Gas Act of 1977, Pub.L. 95-2, 91 Stat. 4 (the "ENGA"). From February through July 1977, United made purchases of natural gas, pursuant to orders issued under the ENGA, at prices substantially higher than those normally paid. Order No. 7 of the Administrator under the Emergency Natural Gas Act of 1977, Docket No. E77-92, 42 Fed.Reg. 22,146 (May 2, 1977), directed that "(a)ll charges . . . attributable to gas purchased" under Section 6 of the ENGA "shall be billed to all customers served by the interstate pipeline in proportion to the volumes received by each customer. . . ." Id. The sum in dispute is the amount which Texasgulf has refused to pay under the terms of this allocation order.
The defendant brings this claim into the wrong forum. Section 10(b) of the ENGA directs that the Temporary Emergency Court of Appeals "shall have exclusive original jurisdiction to review all civil cases and controversies under this Act, including any order issued, or other action taken, under this Act." The defendant is basing its right to collect a higher price for the emergency natural gas delivered to Texasgulf on the ENGA and Order No. 7. Accordingly, the Court must dismiss this counterclaim without prejudice. See Fed.R.Civ.P. 82.
The Court's orders are filed herewith.
This matter came before the Court on defendant's Alternative Motion For Referral of Issues to the Federal Energy Regulatory Commission and for Stay Pending Outcome of Such Referral. The Court has reviewed defendant's filings in support of its motion, including its memorandum of points and authorities, the appendices to said memorandum, its affidavits and its statement of material facts as to which there is no genuine issue. The Court has also reviewed plaintiff's memorandum of points and authorities in opposition to defendant's motion, and heard argument on the motion on January 15, 1979. The Court has concluded that the Federal Energy Regulatory Commission ("Commission") has primary jurisdiction over material issues in this case and that referral of such issues to the Commission for exercise of its primary jurisdiction, and a stay of all further proceedings in this case pending the outcome of such referral, is appropriate. Accordingly, it is this 12 day of February, 1979, hereby
ORDERED: That there be referred to the Federal Energy Regulatory Commission for a full and adequate determination the following questions:
1. Does Section 12.1 or any other of United's tariff provisions or any general or specific orders of the Commission remove or limit United's potential contract liability to Texasgulf for curtailments?
2. Would the awarding of damages to Texasgulf for United's curtailments grant Texasgulf an undue preference or advantage in contravention of the Natural Gas Act?