In re: WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION, Texas-Ohio Energy, Inc., Plaintiff-Appellant, v. AEP Energy Services, Inc.; American Electric Power Company, Inc.; Centerpoint Energy, Inc.; Duke Energy; Duke Energy & Marketing, LLC; Duke Energy Corp.; Duke Energy Trading And Marketing, LLC; El Paso Corporation; Reliant Energy Services, Inc.; Reliant Resources, Inc.; Sempra Energy; Sempra Energy Trading Corp.; WS Energy Services, Inc.; Xcel Energy, Inc., Defendants-Appellees, 243 F. App'x 328

MEMORANDUM The district court granted the defendants’ motion to dismiss on the ground that the filed rate doctrine barred all of Texas-Ohio’s claims. As we clarified in E. & J. Gallo Winery v. Encana Corp., 503 F.3d 1027 (9th Cir.2007), the Filed Rate Doctrine, as defined in that case, bars claims based on FERC-approved rates. FERC’s jurisdiction does not include approving the rates in first sales transactions and claims based on such transactions are not barred by the Filed Rate Doctrine or principles of preemption. Id. at-.

On a motion to dismiss, “[a]ll allegations and reasonable inferences are taken as true, and the allegations are construed in the light most favorable to the non-moving party.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). Based on the record, it is reasonable to infer that some of the transactions between Texas-Ohio and the defendants are first sales and thus Texas-Ohio’s claims based on such transactions are not barred by the Filed Rate Doctrine. REVERSED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.