Tucker et al v. Southwestern Energy Company et al

Filing 118

ORDER denying 100 Motion to Dismiss Party; finding as moot 106 Motion to Stay. Discovery stay as to BHP is lifted. Signed by Judge D. P. Marshall Jr. on 6/6/12. (kpr)

IN T H E UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

N ORTHERN DIVISION

JAMES T UCKER; MIN DY TUCKER;
RO N ALD H O LLARS; FRANCES
ANN H O LLARS; PHILLIP BERRY; and
PEGGY BERRY

v.

PLAINT IFFS

Nos. 1:11-cv-44-DPM
1:11-cv-45-DPM

SOUTHWESTERN ENERGY CO.
and BHP BILLITON PETROLEUM
(FAYETTEVILLE) LLC

DEFENDANTS

ORDER
1. BI-ll" s motion to dismiss is denied . The Court agrees that it has
discretion to consider matters of public record in deciding a Rule 12(b)(6) or
12(c) motion without converting the motion to one for summary judgment
under Rule 56. E.g., Noble Systems Corp. v. Alarica Central, LLC, 543 F.3d 978,
982 (8th Cir. 2008); Stahl v. U.S. Department ofAgriculture, 327 F.3d 697, 700-01
(8th Cir. 2003). This is a matter of may, not shall.

And considering all

material things, the Court concludes that BHP's it was Chesapeake, not us"
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defense is better addressed on sUlnmary judgment.

First, the Court is bewildered with the hundreds of pages of records
from the Arkansas Oil and Gas Commission. They are hard to understand.
Most of the precedents involve a document or two. In Noble Systems, it was
a financing statelnent. 543 F.3d at 982. In Faibisch v. University ofMinnesota,
it was an EEOC charge. 304 F.3d 797, 802-03 (8th Cir. 2002). The public­
record exhibits in Stahl were some USDA instructions, which had been
published in the Federal Register, and a USDA notice mentioned in the
complaint. 327 F.3d at 700. BHP has done an admirable job trying to boil
down the records in the charts in its briefs. But at some point, the volume of
material pushes a Rule 12(b) speaking motion across the line into a summary­
judgment-like dispute. The parties' many exhibits on BHP' s motion are, in the
Court's judgment, past that point.
Second, Plaintiffs dispute the particulars of some of the Commission
records.

Plaintiffs emphasize various BHP activities occurring after the

company took over from Chesapeake. These activities mayor may not be
causally related to Plaintiffs' alleged dalnages, but they cloud the liability
facts. This is not a case like Stahl, for example, where the USDA instructions
and n otice appear to have been undisputed. 327 F.3d at 700-01. This thread

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appears in Kushner v. Beverly Enterprises, Inc., 317 F.3d 820,829-30,831-32 (8th
Cir. 2003), too, as a matter of judicial notice. Whether genuine disputes of

material fact exist about (1) the date BHP took over the disputed wells in
relation to the dates of Plaintiffs' alleged harm, (2) BHP's (not Chespeake's)
activities in relation to Plaintiffs' alleged damages, and (3) exactly what wells
we're talking about are all questions that need to be answered at the
summary-judgment stage, not today.' Plaintiffs have cast enough factual
doubt to stop the Court from exercising its discretion to end the case against
BHP now based solely on the asset purchase and the Commission records.

Stahl, 327 F.3d at 701.
2. A word needs to be said about discovery. Depositions need to be

scheduled by agreement at mutually convenient times for witnesses and
lawyers. Practicing law is hard enough without opening a front of calendar
disputes. The Court reminds counsel that, absent an emergency, they should
follow the protocol outlined in the Amended Final Scheduling Order,

Document No. 103, for bringing any impasse to the Court. That said, the Court

'T he Court would also appreciate greater clarity on what, if any,
Chesapeake liabilities came with the assets sold to BHP.

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was glad to hear from counsel during the Southwestern Energy deposition,
and no one should hesitate to call again if the need arises.

* * *
BHP's motion to dismiss, Document No. 100, denied. Plaintiffs'
emergency motion to stay consideration, Document No. 106, denied as
moot. Discovery stay as to BHP lifted.
So Ordered.

D.P. Marshall Jr.

United States District Judge

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