UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA.
February 18, 1983.
GREENFIELD & CHIMICLES, P.C.
DEPARTMENT OF ENERGY.
The opinion of the court was delivered by: WEINER
MEMORANDUM OPINION AND ORDER
WEINER, District Judge.
This action, initiated by the law firm of Greenfield & Chimicles, P.C. ("Greenfield"), is brought under the Freedom of Information Act ("FOIA") as a result of the refusal of the defendant Department of Energy ("DOE") to disclose information requested by the plaintiff under the FOIA. The target of the request was documents that had been submitted to DOE by Kimber-Allen, the successor to Kimber Petroleum Corporation and Allen Oil Company. Kimber-Allen is a reseller of gasoline and other finished petroleum products.
The purpose of obtaining those documents was to further the discovery process in a lawsuit in which Greenfield is plaintiff's co-counsel. That suit, captioned Milmoe v. Kimber-Allen, C.A. No. 82-1122 (SSB), is presently pending in the United States District Court of New Jersey before the Honorable Stanley S. Brotman. The suit was brought as a proposed class action alleging violations of federal and state antitrust laws and interference with contract relations. In the course of seeking documents relating to pricing, the plaintiff asked Kimber-Allen for "all documents submitted to the United States Department of Energy relating or referring to your prices for gasoline products sold by you [Kimber-Allen]." The plaintiff also asked the defendant to identify price ceilings, the manner in which each price ceiling is calculated and the maximum mark-up permitted. Negotiations are ongoing for a confidentiality order for material obtained through discovery. [Affidavit of Richard Levy, P9.]
Rather than usurp the jurisdiction and judicial decision-making of the Honorable Brotman in the action pending before him, this court will abstain from deciding this FOIA request. It is essentially a discovery request directly related to the other action. It would more properly be decided by Judge Brotman in the context of the confidentiality order to be requested by Kimber-Allen. For that reason, we shall dismiss the complaint without prejudice.
The complaint of the plaintiff is DISMISSED without prejudice to reinstitute it in the United States District Court of New Jersey as an action related to Milmoe v. Kimber-Allen Petroleum Corporation, C.A. No. 82-1122 (SSB).
IT IS SO ORDERED.
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