OPINION
This is a utilities case. Plaintiff Indeck Maine Energy, L.L.C. (Indeck) is an Illinois limited liability company comprised of two member companies. One of those member companies is a Delaware limited liability company that is itself controlled by two Delaware business trusts. In-deck’s other member company is a Indeck Energy, Inc., an Illinois corporation. In-deck owns and operates two electric power plants in Maine that are the subject of this litigation. The two power plants are managed by Ridgewood Power Management LLC. Defendant ISO New England Inc. (ISO-NE) is a Delaware corporation with its principal place of business in Holyoke, Massachusetts. ISO-NE was created by the New England Power Pool (NEPOOL), an organization of generators and transmitters of energy in New England, to administer the region’s energy markets. The Federal Energy Regulatory Commission (FERC) approved ISO-NE’s creation and means of operation.
Indeck filed this action in the Superior Court of the State of Delaware for New Castle County on October 24, 2000. It alleges that ISO-NE breached a contract between the two for the provision of energy at various times in October 1999. The complaint also contains related claims for breach of an implied contract, promissory estoppel, fraud, and willful misconduct in violation of the Massachusetts Consumer Protection Statute, Mass. Gen. Laws ch. 93A, §§ 1-11. Indeck seeks to recover payment for the energy it provided to NEPOOL in October 1999 at the price and quantity contained in a bid it submitted to ISO-NE. ISO-NE seeks to mitigate In-deck’s bid pursuant to the FERC-ap-proved market rules by which it administers the NEPOOL energy markets.
ISO-NE removed the action to this court on November 21, 2000, claiming that this court has subject matter jurisdiction because Indeck’s suit challenges the NE-POOL market rules. Because ISO-NE asserts that these market rules are a federally approved tariff, it asserts that the court has federal subject matter jurisdiction. 28 U.S.C. § 1441(b). ISO-NE then filed a motion to dismiss on November 29, 2000. Indeck opposed the motion to dismiss and also filed a motion to remand the case to the Superior Court on January 2, 2001. The court heard oral argument on March 22, 2001. This is the court’s ruling on both motions.
I. FACTUAL BACKGROUND
The following facts are taken from Indeck’s complaint and the various affidavits and documents filed in support of, or in opposition to, the parties’ motions. While the court will consider certain documents, including public filings with FERC and contracts governing the operation of ISO-NE, in addressing the motions, the consideration of these documents will not convert ISO-NE’s motion to dismiss into a motion for summary judgment because the
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documents are integral to Indeck’s claims.
See In re Burlington Coat Factory Sec. Litig.,
A. The Organization of the New England Energy Market
Indeck is a generator of electrical power and operates two power plants in Maine, the Jonesboro unit and the West Enfield unit. Both power units are small, wood burning, steam generators. Indeck uses the units to provide power to NEPOOL, an organization of 150 participants, including Indeck, that generate and transmit bulk electric power to regions of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island and Connecticut.
The complaint alleges that in 1997, NE-POOL sought and received the approval of FERC to create an independent system operator (ISO), now known as ISO-NE, to administer the wholesale energy markets for the area covered by NEPOOL. On May 1,1999, ISO-NE began administering these markets.
ISO-NE has provided the court with additional details about the creation of ISO-NE and its administration of the energy markets. These facts are contained in various public documents, including FERC orders and various filings with FERC. As one of those documents explains, “[t]he ISO’s primary responsibilities are to ensure system reliability, administer the NEPOOL Tariff, and oversee the efficient and competitive functioning of the regional power market.”
New England Power Pool,
Indeck’s complaint discusses at length the operation of the spot market for energy. The spot market is one of the energy markets administered by ISO-NE. 1 It is competitive bidding market among generators for the provision of energy. Pursuant to Market Rules in the spot market, each NEPOOL participant must bid each day on the provision of power for the next day, referred to as the “dispatch day.” Bids are comprised of the price of energy and certain related information on the production parameters of each generator, including the minimum run time, start-up time, and the maximum and minimum quantities of energy (known as the “High Operating Limit” and “Low Operating Limit”) that can be produced each hour in megawatts. *680 Pursuant to the market rules, ISO-NE then sorts the bids into economic order based upon price. It then reviews the estimates of the energy demand needed for the dispatch day and schedules the generators who can provide the energy at the least cost in accordance with the range of bids. This process is called “dispatching.”
ISO-NE explains that the administration of the spot market for energy discussed in Indeck’s complaint is conducted pursuant to Market Rule 5, and that the price at which the supply of energy bid meets the estimated demand is known as the Energy Clearing Price (“ECP”). According to ISO-NE, Market Rule 5 does not provide for it to contract for the purchase or supply of energy. Rather, ISO-NE administers the markets for the buyers and sellers, establishes the prices for energy, and provides for settlement of obligations in its markets. Furthermore, Rule 5 does not permit ISO-NE to compensate generators for their start-up costs. While it describes the spot market for energy at some length in its complaint, Indeck alleges that the “disputes complained of in this complaint do not result from ISO-NE’s day-ahead dispatch.”
In its briefing and submissions to the court, ISO-NE relies on another Market Rule by which it administers the energy markets — Market Rule 17. Rule 17 provides mechanisms for the provision of energy at times when one NEPOOL participant may have market power and can therefore unilaterally affect the ECP. The Rule requires ISO-NE to monitor the efficiency of the energy markets under the Interim ISO Agreement. When one NE-POOL participant has market power over the ECP, the bidding is said to be “out of economic merit order.” For example, during transmission line repair or other transmission constraints, Rule 17 requires ISO-NE to dispatch energy out of economic merit order, although the price of doing so may exceed the ECP. ISO-NE then mitigates the bid prices for that energy by means of various formulae provided in the Rule. The amount by which the mitigated price exceeds the ECP is known as “uplift.”
ISO-NE submits that Market Rule 17 governs the pricing of all dispatching of units run out of economic merit order; that is, it governs at all times when the scheduling of power without regard to the ECP is necessary. Market Rule 17 contains several pricing methods for mitigating the bids of units run out of merit order. Section B of the Rule provides that when ISO-NE has identified a particular resource as having market power, it will mitigate the resource’s bids by using various pre-established pricing screens. The particular price screen used depends on whether the resource is regularly or rarely run out of economic merit order. For those resources seldom run out of merit order, Section B.2.b. provides that either certain default price screens will mitigate energy prices or, alternatively, the parties can contract for the provision of energy on other terms. That subsection of Rule 17 states the following:
The ISO may determine that some of these resources should be entitled to receive a very high bid price or have a special contractual arrangement to sure their availability when need to support system reliability and security. Normally such arrangements will be negotiated prospectively. The price screen for resources that seldom run in economic merit order is designed to create a powerful incentive for such generators to come forward and negotiate an appropriate contract with the ISO. The price screen itself is a default case designed to ensure that the ISO has sufficient bargaining leverage in such negotiations. Until the resource owner and the ISO *681 reach agreement, the default price screen will enable the resource to be paid for running in the short term, while providing a strong incentive to negotiate an appropriate arrangement with the ISO (or another willing buyer) as the screen price rapidly and progressively drops to just 5% above the same-hour [ECP] in the unconstrained market.
John Deck, Ex. E, Market Rule 17 § B.2.b. Thus, Rule 17’s price screens serve as an incentive for NEPOOL participants to enter agreements at mutually acceptable term with ISO-NE.
Rule 17 also provides for an alternative dispute resolution mechanism for NE-POOL participants who object to a mitigation remedy imposed by ISO-NE. Part IV of Rule 17 provides that participants may seek ADR review as soon as ISO-NE informs the participant that its bids will be subject to mitigation. The Rule goes on to detail the procedures for ADR review and provides that its results will be “binding” and are subject to appeal to FERC. The ADR remedy provided in Part IV is not the exclusive means by which participants can challenge mitigation remedies however. The Rule also provides in § F.8 that “[a] Participant may appeal the imposition of a mitigation remedy to the FERC whether or not it has requested an ADR process.” FERC and ADR are the only remedies available to the participant to challenge mitigation. “Except for this ADR process, a Participant may not seek removal of the mitigation, or any other remedy against the ISO, in any forum other than the FERC, and may not contest the decision of an ADR Neutral in any forum.”
B. The October 1999 Transactions
Indeck alleges that ISO-NE breached agreements for the supply of electrical energy during October 1999. Specifically, Indeck alleges that two contracts existed between Indeck and ISO-NE to provide energy. The first alleged contract was for Indeck to produce energy during transmission constraints on October 16 and 17, 1999. The second alleged contract was for Indeck to produce energy on October 21, 28 and 26, 1999. With respect to each contract, Indeck has also brought claims under theories of breach of implied contract and promissory estoppel. Indeck also alleges fraud and breach of the Massachusetts Consumer Protection Statute, Mass. Gen. Laws ch. 93A, §§ 1-11.
1. October 16-17,1999
Indeck alleges that by September 1999 it had several disputes with ISO-NE regarding ISO-NE’s interpretation of the Market Rules and wanted to avoid further disputes by not being dispatched by ISO-NE. Indeck was required by the Market Rules, however, to submit daily bids for energy. Thus, on September 30, 1999, it submitted a bid for energy at $9,999 per Megawatt hour (“Mwh”). This bid was the highest that could be submitted on ISO-NE’s computer bidding system. Indeck did not bid on subsequent days and thus, under the Market Rules, the $9,999 per Mwh bid became Indeck’s standing bid for energy. Indeck intended its high bid to simultaneously fulfill its commitment to bid on energy while enabling it to avoid being dispatched in merit order.
On October 4, 2001, Indeck asserts that it received a telephone call from the Bangor Hydro-Electric Company. Bangor Hydro is the local area control operator and transmits ISO-NE’s dispatch instructions for Indeck’s region. Bangor Hydro informed Indeck that both of Indeck’s units were requested to run for 37 hours on October 16 and Í7 at their Low Operating Limit.
Indeck alleges that its management at Ridgewood thought the dispatch request to be out of the ordinary because they re *682 ceived it two weeks prior to the dispatch date and because Indeck’s standing bid was $9,999 per Mwh. Following the dispatch request, William P. Short, III, Director of Power Marketing for Ridgewood, called Rick Milardo, an ISO-NE load forecaster, to confirm the price and terms of the dispatch. Milardo confirmed that ISO-NE was aware of Indeck’s bid terms and that an ISO-NE review committee decided to accept Indeck’s bid. On October 6, 1999, Short again confirmed with Milardo ISO-NE’s dispatch order.
On October 7, 1999, Short sent a memorandum by facsimile to Milardo and Marty Amati, Vice President of Operations for ISO-NE, that confirmed Short’s understanding of ISO-NE’s dispatch order and contained a nineteen page copy of Indeck’s standing bid. 2 On October 15, 1997, the day before the scheduled dispatch, Short sent a similar memorandum, again with Indeck’s bid attached, to Milardo and various other officials at ISO-NE.
On October 16, 1997, the dispatch date, Indeck ran both units at their Low Operating Limits. One hour into the expected operating time, ISO-NE requested the units be operated at their High Operating Limits. Later that day, ISO-NE requested the units be returned to the Low Operating Limits and at 3 p.m. that afternoon directed Indeck to shut down the units. This termination order was well before the complete run time of 37 hours Indeck alleges to be a term of the contract. During its run time, the Jonesboro unit generated only 113.7 Mwh and the West Enfield unit generated 105.5 Mwh. Had the complete 37 hour run taken place, each plant would have produced 370 Mwh.
The ISO-NE Settlements Department sent a report to Indeck on October 16, 1999, indicating that Indeck would be compensated at its bid price of $9,999 per Mwh. Yet on October 25, 1999, Donald Bourcier, Manager of Market Monitoring and Mitigation for ISO-NE, orally informed Short that ISO-NE intended to disregard the bid price and would instead mitigate the Indeck’s bid for October 16-17,1999 pursuant to Market Rule 17.
Over the next several months, the parties continued to dispute whether Indeck was entitled to its unmitigated bid price of $9,999 per Mwh or whether some lower price should be substituted pursuant to Market Rule 17. In its complaint, Indeck alleges that Bourcier, ISO-NE’s Manager of Market Monitoring and Mitigation, orally informed Indeck representatives on November 12, 1999 that ISO-NE intended to mitigate retroactively Indeck’s bid. In response to ISO-NE’s mitigation, In-deck states that it placed its units on economic outage on December 13, 1999. 3 Under Market Rule 13, economic outage *683 is permitted when a unit operator does not expect NEPOOL revenues to justify operation. Although on economic outage, Indeck states that ISO-NE sent it a letter dated March 3, 2000 stating that In-deck’s future bids would be capped under Market Rule 17 at $301.92 per Mwh for the Jonesboro unit and $301.73 per Mwh for the West Enfield unit.
Indeck further alleges that ISO-NE later offered a price of $1,000 per Mwh to Indeck during a period of high demand experienced in New England on May 8 and 9, 2000. According to Indeck, that offer was made despite the March 3, 2000 mitigation letter and was conditioned upon Indeck’s acceptance of the price of $1,000 per Mwh for the unresolved claims dating back to October 16 and 17, 1999. Indeck rejected the offer and did not provide power during the May 8-9 shortage.
ISO-NE made another attempt to resolve the October 16-17 dispute in a letter dated May 22, 2000. In that letter, ISO-NE revised the bid cap for Indeck’s units to $820.68 per Mwh and stated that the price would be applicable to the October 16-17,1999 period.
On June 22, 2000, Indeck filed a complaint with FERC to challenge ISO-NE’s imposition of a bid cap on it starting on March 3, 2000. On July 26, 2000, FERC issued an order finding that the bid caps were improper. FERC concluded that In-deck did not exercise market power and thus its bidding of $9,999.99 per Mwh did not affect conditions in the energy market sufficiently to require the remedy of a bid cap.
According to Indeck, it has not been paid for its provision of power on October 16-17, 1999. It requests compensatory damages for ISO-NE’s failure to honor the price of $9,999 per Mwh and other terms of the contract. The compensatory damage estimate is $5,151,000, plus interest, for the period of October 16-17, 1999. Indeck also seeks double or treble damages and reasonable attorney’s fees under the Massachusetts Consumer Protection Statute.
2. October 21, 23, and 26,1999
Indeck alleges that on three additional occasions in October 1999 ISO-NE requested Indeck to start its units and synchronize its power output with that of the power grid in the upcoming days. The requests were allegedly made on October 20 for October 21, October 21 for October 23, and October 25 for October 26. Indeck asserts that each time it began start-up procedures for both units and that each time ISO-NE cancelled the dispatch order before Indeck could synchronize. On two of the occasions the units were within minutes of synchronization when cancelled. Indeck alleges ISO-NE knew of its $9,999 per Mwh bid each time and acknowledged that Indeck would receive that price. According to Indeck, ISO-NE refused to pay Indeck for the requested operation of its units on all three occasions.
Indeck requests compensatory damages in the amount of its bids for the October 21, 23, and 26, 1999 period. On the claim for promissory estoppel, Indeck’s request for damages is limited to the damages it incurred preparing to run its units in reliance on ISO-NE’s instructions.
II. DISCUSSION
A. Should this Action be Remanded to State Court?
ISO-NE sought removal of In-deck’s suit from state court pursuant to 28 U.S.C. § 1441(b). The removal of an action from state court is only permissible for “actions that originally could have been filed in federal court.”
Caterpillar Inc. v. Williams,
“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.”
Caterpillar,
Indeck argues that its complaint alleges solely state causes of action. While it admits that the complaint discusses the various market rules applicable to NE-POOL members, it points out that the complaint specifically disclaims that it challenges those rules. For example, after discussing the spot market for energy in Paragraph Eight, it states that the “disputes complained of in this complaint do not result from ISO-NE’s day-ahead dispatch.” Thus, no federal cause of action appears on the face of Indeck’s complaint.
Instead, Indeck alleges that its claims are based on state contract law. For the October 16-17 claims, Indeck alleges a contract was created by Indeck’s offer to provide energy at its “posted Energy bid price of $9,999 per Mwh for a Minimum Run Time of twenty-four hours and a Low Operating Limit of lOMwh.” Complaint at ¶ 34. Similarly, Indeck’s other claims, including an implied contract and promissory estoppel assert that ISO-NE’s obligation is based in Indeck’s “posted bid price” or “standing bid.” Complaint at ¶ 44, 51. Indeck’s claims resulting from the dispatch orders of late October are no different. They too allege the existence of an express contract, implied contract or promissory estoppel obligation based on Indeck’s posted bid. Complaint at ¶ 65, 70, 78. Thus, with the exception of In-deck’s claim under the Massachusetts Consumer Protection Statute, all of Indeck’s claims for relief are based on its assertion that an agreement existed between it and ISO-NE and that the terms of that obligation were set by the bid parameters set forth by Indeck.
ISO-NE argues that no contract can exist between it and Indeck because it is not permitted to enter contracts to purchase energy. Indeck rebuts this argu *685 ment by pointing to Market Rule 17, Part II.B.2.b., which permits ISO-NE to contract with NEPOOL participants to provide energy during transmission constraints at prices other than the default mitigated price. Yet in its briefing to the court, Indeck specifically denies that its claims are brought to challenge the mitigation provisions of Rule 17. Indeed, if it had directly challenged Market Rule 17, that Rule’s ADR provisions would bar review of such a contract in a forum other than ADR or FERC. Instead, Indeck argues that Market Rule 17’s contract provisions establish that ISO-NE had the authority to separately contract for the provision of énergy and argues that its alleged contract is simply another species of contract into which ISO-NE can enter.
In response, ISO-NE argues that all it did was mitigate ISO-NE’s bid price pursuant to the price screens in Rule 17 and that Indeck’s challenge is really to the Market Rules. As a challenge to the Market Rules, or ISO-NE’s interpretations of that rule, Indeck’s challenge is completely preempted from state court adjudication and instead must be brought before FERC because it is, in actuality, a challenged to a federally approved tariff.
Because Indeck’s complaint contains only state claims, ISO-NE asserts that federal jurisdiction is appropriate pursuant to two exceptions to the well-pleaded complaint rule. The first exception, complete preemption, is regarded as an “independent corollary” of the well-pleaded complaint rule.
Franchise Tax Bd.,
The artful pleading doctrine and complete preemption are frequently intertwined because a complaint setting forth state law claims that are completely preempted must be removed to federal court regardless of the characterization of the claims in the complaint.
See Rivet v. Regions Bank of Louisiana,
1. Are Indeck’s claims completely preempted by federal law?
Indeck argues that the Federal Power Act, which grants to FERC the authority to determine if wholesale power rates are just and reasonable, 16 U.S.C. § 824d(a), completely preempts state law challenges to those rates. The Supreme Court has stated that complete preemption
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occurs when a federal statute has such “extraordinary” force that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.”
Metropolitan Life Ins. Co. v. Taylor,
Removal based on complete preemption, however, is available in only a few limited areas of federal regulation. The Third Circuit had identified two prerequisites to the application of complete preemption. First, it has noted that the Supreme Court has required that “Congress ... clearly manifest an intent” to make actions within a particular area removable to federal court.
Metropolitan Life Ins. Co. v. Taylor,
Indeck argues that the Federal Power Act fails to establish these two prerequisites for complete preemption. It argues that the federal preemption provided for by the Federal Power Act is merely a federal defense and does not therefore require removal from state court.
See Caterpillar,
ISO-NE does not attempt to distinguish the enforcement provisions of the Natural Gas Act or the Court’s holding in
Pan American Petroleum Corp.
Instead it cites the Court’s statement in
Mississippi Power & Light Co.,
2. Are Indeck’s claims properly removable under the artful pleading doctrine?
ISO-NE argues that whatever the nature of the claims of Indeck’s complaint, Indeck is, in actuality, asserting a cause of action arising under federal law and that the action was therefore properly removed under the “artful pleading doctrine.” Under that doctrine “a court will not allow a plaintiff to deny a defendant a federal forum when the plaintiffs complaint contains a federal claim ‘artfully pled’ as a state law claim.”
United Jersey Banks,
In support of its position, ISO-NE relies on two cases discussing state law challenges to telecommunications rates filed with the Federal Communications Commission (FCC),
Marcus v. AT&T Corp.,
ISO-NE also relies on
Cahnmann v. Sprint Corp.,
ISO-NE argues that both
Marcus
and
Cahnmann
are analogous to Indeck’s suit. Indeed, the Seventh Circuit’s decision in
Cahnmann
recognizes the similarity between telephone and utility regulation and notes that public utility regulation and telecommunications regulation are “essentially the same form of regulation, the term ‘common carrier’ being generally used of firms providing transportation or communications and ‘public utility’ of firms providing electricity or gas.”
Cahnmann,
Indeck responds by arguing that its suit does not challenge the Market Rules. Instead, it argues that it has presented solely state law claims relating to contractual obligations between it and ISO-NE. In-deck points to Part II.b.2 of Market Rule 17, which permits ISO-NE to enter contracts for the provision of energy from units seldom run in times of transmission constraints, as evidence that ISO-NE has the power to enter contracts with energy providers. While Indeck’s complaint does not argue that it had a contract with ISO-NE pursuant to that provision of Market Rule 17, it does argue that the Rule supports its assertion that ISO-NE is vested
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with the power to enter contracts with energy providers under its governing regulations. Because it is alleged that ISO-NE can enter contracts outside the scope of the filed tariff, Indeck argues that this case is distinguishable from
Marcus
and
Cahnmann,
in which the courts held that the filed rate approved by the FCC was the sole basis for contractual obligations between the parties.
Marcus,
Indeck argues that its claims are not a challenge to the filed rate — the Market Rules approved by FERC. It has not, however, cited authority in the Market Rules, Interim ISO Agreement, or another document that specifies ISO-NE’s authority to enter the type of obligation it asserts here. While Market Rule 17 does provide a limited authority for contractual obligations between ISO-NE and NEPOOL participants, Indeck does not rely on this authority. Instead, as previously noted, Indeck invokes its posted bids in the spot energy market throughout its complaint as setting forth the terms of the alleged agreement between Indeck and ISO-NE. Indeck cites no other evidence, other than its posted bids to provide energy at $9,999 per Mwh on the terms specified, that might serve as a genesis of the alleged obligations between Indeck and ISO-NE. Because Market Rule 5 governs the acceptance and rejection of bids in the spot energy market, Indeck’s breach of contract claims seek, as remedy, the imposition of Indeck’s terms under Market Rule 5. See Complaint at ¶ 42 (stating that In-deck incurred damages “at an agreed price of $9,999 per Mwh for Energy and for an agreed Minimum Run Time of twenty-four hours and Low Operating Limit of 10 Mwh.”). Its suit, while purportedly alleging only contractual obligations, is, in reality, a challenge to ISO-NE’s authority to determine whether competitive bidding under Market Rule 5 should govern In-deck’s provision of energy or whether ISO-NE should have the authority to mitigate those bids pursuant to Market Rule 17. Indeck’s contractual claims seek relief consistent with the former and its factual allegations frequently invoke its bidding as the source of ISO-NE’s alleged obligations.
Indeck argues that, because it can show ISO-NE is not prohibited from entering contracts unrelated to the Market Rules, the court must then conclude it has alleged only state claims. However, apart from references to the allegedly inapposite contractual provisions of Market Rule 17, In-deck has not shown where the Market Rules or any other document gives ISO-NE the authority to enter contracts like the one it has alleged. Moreover, even if ISO-NE did have this authority, it remains the case that Indeck’s cause of action, however styled, request a remedy pursuant to Market Rule 5 and seeks to avoid the imposition of mitigation under Rule 17. Thus, the claims are entirely related to the federal tariff and do not arise from some obligation unrelated to the bidding for energy in the spot market. Judge Posner’s opinion in Cahnmann makes this very distinction between actions challenging tariffs in regulated industries and actions challenging other contractual obligations in that industry.
It is not as if the “Fridays Free” tariff had promised free calls and another provision of a contract between the plaintiff and Sprint had promised to sell the plaintiff a bushel of Ugli fruit at market price. If the promises were severable, ... the plaintiff could sue to enforce the latter promise though not the former. There is no space between the contract and the tariff here ... and so there is no room for a state law claim of breach of contract.
Cahnmann,
In its briefing, Indeck argues it is not suing to enforce obligations arising in the spot market for energy. Indeed, to distinguish its claims from those arising under Market Rule 5, it describes the spot market for energy by using the only characteristic of the spot market that might differentiate its claims — the “day-ahead dispatch.” The fact that the spot market for energy is a day-ahead market and In-deck asserts that ISO-NE’s obligations arose before that point does not, however, change the nature of Indeck’s claims. According to Indeck’s complaint, bidding under Market Rule 5 is typically submitted the day before the energy transmission. When NEPOOL participants do not bid, their last valid bid is used as a “standing bid” in the spot energy market. Indeck repeatedly asserts that it is its standing bid of $9,999 per Mwh that was accepted by ISO-NE on each occasion prior to the usual day-ahead dispatch. Indeck has not explained, either in its complaint or its briefing, how this temporal distinction separates its claims from the typical transaction in the spot market. That the alleged contract may have been made at a different time from the typical spot market transaction does not change the nature of the relief sought by Indeck — compensation consistent with Market Rule 5.
Thus, the court concludes that In-deck’s complaint arises under federal law because Indeck has sought to present a challenge to a federally-approved tariff in the guise of a state contractual claim. Because the artful pleading doctrine does not permit litigants to “frustrate a defendant’s right of removal by carefully pleading the case without reference to any federal law,” Indeck’s motion to remand this action to the Superior Court will be denied.
B. Should this Action be Dismissed for its Failure to State a Claim?
Having concluded that Indeck’s claims arise under federal law, the court will proceed to address whether federal law can afford relief in this action or whether ISO-NE’s motion to dismiss should be granted. ISO-NE has set forth five arguments in support of its motion to dismiss. It argues that (1) Indeck’s claims are barred by the “filed rate” doctrine; (2) Indeck’s claims should be dismissed under the- “primary jurisdiction” doctrine; (3) In-deck has failed to exhaust FERC approved alternative dispute resolution procedures; (4) ISO-NE cannot be liable under § 10 of the Interim ISO Agreement; and that (5) Indeck has not joined indispensable parties.
The filed rate doctrine bars both federal and state claims challenging a tariff “that a federal agency has reviewed and filed.”
County of Stanislaus v. Pacific Gas & Elec. Co.,
A court may think a different [rate] more reasonable. But the prescription of the statute is a standard for the [Federal Power] Commission to apply and, independently of Commission action, *691 creates no right which courts may enforce.
Petitioner cannot separate what Congress has joined together. It cannot litigate in a judicial forum its general right to a reasonable rate, ignoring the qualification that it shall be made specific only by exercise of the Commission’s judgment, in which there is some considerable element of discretion. It can claim no rate as a legal right that is other than the filed rate, whether fixed or merely accepted by the Commission, and not even a court can authorize commerce in the commodity on other terms.
We hold that the right to a reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission’s orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.
Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co.,
The parties do not dispute the scope of the filed rate doctrine. Instead, Indeck claims that it does not apply here because it has alleged state contract law claims. It points to
Town of Norwood, Massachusetts v. New England Power Co.,
Indeck’s primary argument in opposition to the motion to dismiss is that the filed rate doctrine is inapplicable to the action because its complaint does not challenge a federally filed rate. Its arguments in this respect reprise the assertions made in support of its motion to remand; namely, that its complaint alleges only state law contract claims and specifically disclaims a challenge to the Market Rules. These arguments, however, were rejected by the court in considering Indeck’s motion to remand and will be rejected here. In-deck’s complaint challenges ISO-NE’s mitigation of Indeck’s bid pursuant to Market Rate 17. While Indeck argues that it is actually asserting the existence of a bilateral contract, it cannot deny that the terms of the alleged contract it seeks to enforce are those of its standing bid for the provision of energy in the spot energy market. In brief, Indeck seeks to supplant ISO-NE’s discretion to impose mitigation by seeking, as its contractual relief, the price it would have received had ISO-NE ac *692 cepted its standing bid pursuant to the regular operation of Market Rule 5 in the spot energy market.
In an effort to undermine the evidentia-ry support for characterizing its complaint as a challenge to a filed rate, Indeck asserts that there are no facts supporting ISO-NE’s assertion that it mitigated In-deck’s bid pursuant to Market Rule 17. Indeck points out that the court must accept the allegations of the complaint as true in considering a motion to dismiss and argues that complaint does not assert that ISO-NE imposed mitigated prices upon it. According to Indeck, because there is no evidence that ISO-NE sought to mitigate its rates pursuant to Market Rule 17, then its claims must rest in contract because they cannot challenge the Market Rules.
Indeck’s argument that its complaint does not allege that ISO-NE sought to mitigate is not supported by the text of the complaint, which frequently references ISO-NE’s attempt to mitigate the rates even if it does not directly assert the nature of ISO-NE’s intentions. Paragraphs 23 and 24, for example, discuss ISO-NE’s attempt to impose a mandatory mitigated bid ceding on Indeck and Paragraph 24 specifically asserts that ISO-NE insisted it would mitigate Indeck’s bid for the October 16-17, 1999 transmission period. Similarly, Exhibit G of the Indeck complaint is an e-mail from an ISO-NE employee specifically stating ISO-NE’s offer “to apply the $l,000/mwh mitigated bid to calculate transmission congestion uplift for October, 1999.” While these statements each occurred after the October 1999 events alleged to create a contract between the parties, Indeck has not explained why ISO-NE, if it wants to mitigate prices, must state its intention to do so prior to the dispatch of energy. In fact, Part II.D of Market Rule 17 only requires ISO-NE to notify the unit being mitigated “[a]s soon as reasonably possible after the ISO has determined that a resource or portion of a resource will be subject to mitigation.” While it appears from the complaint that ISO-NE did not expediently inform In-deck of its intention to mitigate Indeck’s bid, the complaint does not assert that ISO-NE’s claimed mitigation is invalid because of this delay.
Thus, the court concludes that Indeck’s action is barred by the filed rate doctrine and it will grant ISO-NE’s motion to dismiss. The court will not consider ISO-NE’s other arguments proffered in support of its motion.
The court will enter an order in accordance with this opinion.
Notes
. The remaining markets are for reserve electrical power. They are the markets for Ten-Minute Spinning Reserve, Automatic Generator Control, Ten Minute Non-Spinning Reserve and Thirty Minute Operating Reserve. Indeck does not claim that any of these other markets are relevant to this action.
. The relevant portion of that memorandum states the following:
Per the ISO-New England’s oral acceptance of Indeck Maine Energy (''Indeck”) posted electronic bids, including resource characteristics, for its West Enfield and Jonesboro power plants, I want to inform you in writing that Indeck will operate, unless physically not, capable of operation, both its West Enfield and Jonesboro power plants on October 16 through October 17, 1999. A copy of the Indeck bids, including resource characteristics, as of Monday, October 4, 1999, is attached to this memorandum.
By the end of this week, I hope that we will have worked out any uncertainly that may underlie the ISO-NE's acceptance of In-deck’s posted electronic bids for its West Enfield and Jonesboro power plants.
. Indeck’s complaint actually states that it put its units on economic outage on December 13, 2000. Complaint at ¶ 22. Given its context and the later references to the units on economic outage in March 2000, the court assumes the year to be a scrivner's error.