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Stone & Webster, Inc. v. Georgia Power Co.

United States Court of Appeals, District of Columbia Circuit

March 10, 2015

STONE & WEBSTER, INC. AND WESTINGHOUSE ELECTRIC COMPANY, LLC, APPELLANTS
v.
GEORGIA POWER COMPANY, ET AL., APPELLEES

Argued October 9, 2014.

Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-01783).

Brian G. Corgan argued the cause for appellants. With him on the briefs were David C. Smith and Shelly L. Ewald. Michael A. Branca and Timothy E. Heffernan entered appearances.

Gordon L. Garrett Jr. argued the cause for appellees. With him on the brief were Joseph E. Finley, Melvin S. Blanton, Andrew D. Ness, and Charles W. Whitney.

Before: WILKINS, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges. OPINION filed by Senior Circuit Judge RANDOLPH.

OPINION

Page 615

Randolph, Senior Circuit Judge :

This is an appeal from the judgment of the district court, Judge Kollar-Kotelly, dismissing a complaint filed in the United States District Court for the District of Columbia in favor of a complaint filed in the federal district court for the Southern District of Georgia. The plaintiff in the D.C. action is the defendant in the Georgia action, and vice versa. Each suit is, to a large extent, the mirror image of the other. Jurisdiction rests on diversity of citizenship, 28 U.S.C. § 1332. There is no contention that both suits should proceed. The question is which complaint--the one filed in D.C. or the one filed in Georgia--should go forward. The district judge, in a thorough and closely reasoned opinion, determined that the D.C. action should be dismissed and that the Georgia action should proceed.

The dispute arises under a contract, signed in 2008, for the design and construction of two nuclear electrical generating units at a power plant in Georgia. Stone & Webster, Inc., and another company agreed to build the units for Georgia Power Company and others. The contract, which specifies that it is to be governed by Georgia law, sets a fixed price for the work but includes reimbursement for some additional costs.

Regulatory requirements of the United States Nuclear Regulatory Commission delayed the project and imposed additional costs. Stone & Webster sought payment for the added expenses. Georgia Power denied that the contract made it responsible for the extra charges.

The contract includes dispute resolution procedures. The parties must first meet to seek a resolution. If this does not end the dispute within thirty days, the parties are to engage in mediation. For claims of more than $25 million (the claims here are considerably larger), if the mediation does not conclude within sixty days, " either Party shall have the right to proceed to litigation . . . in a court of competent jurisdiction."

Under the heading " Venue," the contract states that the parties " agree to the non-exclusive jurisdiction of the United States District Court for the District of Columbia for any legal proceedings" arising

Page 616

out of the contract and " accept[], generally and unconditionally, the jurisdiction" of that court. Each party " waives" the right to challenge cases brought in the D.C. District Court " on the basis of forum non-conveniens or improper venue." The contract adds, in the same " Venue" provision, that the parties do not " waive any ...


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