WICKENS et al v. SHELL OIL COMPANY et al
Filing
462
ORDER denying 400 Motion for Sanctions; denying as moot 404 Motion to Strike ; granting in part and denying in part 406 Motion; The Court hereby finds that the Amended Final Judgment (Doc.# 355) entered on June 3, 3009 has been fully satisfied by the Defendants. Defendants are therefore relieved from further participation in this litigation relating to the distribution of that judgment. That part of Shells motions which seeks to amend the caption is also therefore DENIED. cm. Signed by Judge Sarah Evans Barker on 8/31/2011. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANIEL J. WICKENS, PAMELA M.
WICKENS, MARK E. SHERE and
EMPLOYERS FIRE INSURANCE
COMPANY
Plaintiffs,
vs.
SHELL OIL COMPANY and SHELL
OIL PRODUCTS COMPANY, LLC.,
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1:05-CV-645-SEB-TAB
Defendants.
ENTRY ON PENDING MOTIONS
(Docket Nos. 400, 404 & 406)
There are eleven post appeal motions currently pending in this lawsuit, three of
which are addressed in this entry. The background facts and procedural history of this
litigation have been recounted so often in prior orders that to do so again would
needlessly encumber the docket. Hence, we move directly to the issues raised in the
various motions.
Doc. No. 400 - Plaintiffs’ [Wickens] Pro Se Motion For Sanctions
Doc. No. 404 - Intervening Plaintiff’s [Employers Fire Insurance Co.] Motion to Strike
Plaintiffs, Daniel and Pamela Wickens, acting pro se, have once again filed a
motion in this action despite the fact that all their claims against the Defendants have
been fully resolved and that they have been fully and fairly compensated for their
damages. Their case is over. Nonetheless, Mr. and Mrs. Wickens persist in their efforts
to recover against their attorney, Mark Shere, their insurance company, Employers Fire
Insurance Company (“Employers”), and their environmental contractor and expert,
Hydrotech, all of whom allegedly acted in concert to prolong this litigation and to conceal
various relevant details from the Wickenses and the Court. In addition to characterizing
this conduct as an abuse of federal judicial resources and state administrative processes,
the Wickenses seem to suggest that this abusive conduct has somehow directly harmed
them as well. For this, they seek an award of monetary sanctions against their former
attorney and insurer equal to the amount of Defendants’ deposit with the Clerk of the
Court on November 8, 2010, $536,758.89, which was paid by Shell to satisfy the
judgment entered against it. Not surprisingly, both Shere and Employers oppose the
Wickenses’ motion; Employers also moves the Court to strike all claims for relief
asserted by the Wickenes.
Were the motion for sanctions filed by Daniel and Pamela Wickens merely an
attempt to secure further relief, Employers’ motion to strike would likely be viewed
favorably by the Court, because, as we have explained previously both in open court and
in our written order of May 19, 2009, if Mr. and Mrs. Wickens wish to assert claims
against Employers and/or Shere, they must do so by way of a separate lawsuit.
Addressing the Wickenses’ Motion For Sanctions as such, however, despite its conceptual
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difficulties and lack of comprehensible support, and treating it as a request that the Court
utilize its inherent power to hold parties responsible for their actions while prosecuting or
defending a claim, their motion fares no better.
Though no one who has participated in this litigation can hope to escape
responsibility, at least to some degree, for the inordinately protracted and convoluted
history of this dispute, we find no support in the record to substantiate the Wickenses’
impenetrable conspiracy theory, nor do we find their request for an award of more than a
half million dollars in sanctions to be anything other than patently frivolous. As a claim,
it fails to rise above being anything more than an expression of the frustration they
apparently feel with regard to the way in which their case has played out. Once again, we
direct Mr. and Mrs. Wickens to cease their involvement in this particular cause of action
through any future filings which seek additional relief of any kind. We say again, their
interests have been fully litigated. Any future claims they may choose to assert must be
brought in a new and separate cause of action. Employers’ Motion to Strike is denied as
moot. Plaintiffs’ Pro Se Motion For Sanctions is also denied.
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Doc. No. 406 - Shell’s Partially Unopposed Motion For Order of Judgment
Satisfaction and Other Relief
As previously noted, the Shell Defendants1 have paid into court the sum of
$536,758.89, representing the amount of the judgment entered against them, plus postjudgment interest through the date of deposit. Thereafter, a new controversy has
developed that threatens to achieve the same epic proportions as did the underlying
litigation. Shere and Employers are currently engaged in a new and seemingly intractable
dispute over the method of distribution of Shell’s escrow payment. Shell wants out, and
accordingly has filed its motion seeking an order of satisfaction of judgment. It is a
reasonable request and we shall grant it.
However, Shell also asks to be dismissed as a party, pursuant to Fed.R.Civ.P. 21,
and seeks an amendment of the caption to remove its name to reflect the dismissal.
Employers has no objection to Shell’s motion; in contrast, demonstrating once again his
well-established preference for litigating to the death on any point no matter how large or
small, Shere objects, claiming that Shell should have deposited its judgment payment
with the court long ago, when interest rates were higher, rather than doing so at a time
after interest rates had fallen when, as now, the deposited amount is earning less than 1%
interest. Apparently believing that a sympathetic court can protect him against all of
1
Throughout this litigation, no distinction was made between the two related Shell
Defendants. To our knowledge, no issue exists now which requires that they be treated
separately. Thus, we shall continue to refer to them as a single entity: “Shell.”
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life’s vagaries, Shere asserts that as a judgment creditor he has been injured by Shell’s
delay and is entitled to relief, arguing that the underlying purposes of requiring postjudgment interest are not served by allowing Shell to pay its money when interest rates
hover at 1% and withdraw from the case.
Until now, Shere has never objected to Shell’s interest calculations. Further, in
Shell’s reply, it notes that, in fact, the interest rate upon which it calculated post-judgment
interest, 2.33%, is the rate Shere claims he would have benefitted from had the money
been deposited sooner. Nonetheless, the fact that the money now sits in escrow in the
registry of the Court earning interest at prevailing rates reflects current economic realities,
certainly not some injustice for which Shell is culpable. In depositing the judgment
amount plus interest, Shell has relinquished control of those funds and ended its
involvement in this litigation. The obvious purpose of imposing a post-judgment interest
requirement under federal law has been fully satisfied. See BP Exploration & Oil Co. v.
Maintenance Services, Inc., 313 F.3d 936, 947-48 (6th Cir. 2002). Shere’s inability to
access all or any part of those deposited funds arises from his own litigation strategy as
well as Employers’ objections challenging his entitlement to those monies. Shell, on the
other hand, has fully complied with the requirements of Fed.R.Civ.P. 67 and 28 U.S.C. §
1961 in calculating the appropriate amount of post-judgment interest and depositing it
along with the judgment amount with the Clerk of the Court. Thus, Shell is entitled to
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have its payment of the judgment obligation officially recognized and this order shall
therefore reflect shell’s full and final satisfaction of judgment.
Shell is entitled to be freed from further participation as a party in this
litigation. Shell is thus relieved of any future obligation to attend hearings, participate
in conferences with the magistrate judge or to otherwise respond to filings made by the
parties in connection with this seemingly endless conflict, unless specifically ordered to
do so by this court. That said, we find no basis in Fed.R.Civ.P. 21 for “dismissing” Shell
in the sense that its name should or must be removed from the caption. Rule 21 addresses
misjoined and nonjoined parties. Unlike the dismissed parties in the cited decisions
referenced by Shell, Shell is neither a misjoined party nor one of multiple defendants
against whom various unrelated claims have been brought. See Anderson v. Pollard,
2007 U.S.Dist LEXIS 61657 (E.D.Wis. August 21, 2007); Schwartz v. Graebel Van
Lines, Inc., 2006 U.S.Dist. LEXIS 32388 (N.D.Ill. May 15, 2006). Shell was a properly
named Defendant from the inception of this case and has fully defended against the
claims brought by Plaintiffs. These claims have now been fully resolved through
settlement and through an amended final judgment, both of which have been fully
satisfied. The docket and caption properly reflect that involvement and shall not be
amended at this late point in the litigation to suggest otherwise.
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Conclusion
For the reasons outlined above, Plaintiffs’ Pro Se Motion For Sanctions (Doc.
#400) is DENIED, Employers’ Motion To Strike (Doc. #404) is DENIED AS MOOT.
Shell’s Partially Unopposed Motion (1) For An Order Of Satisfaction Of Judgment, (2)
To Dismiss Dispensable Party, And (3) To Amend Caption (Doc. # 406) is GRANTED
IN PART and DENIED IN PART. The Court hereby finds that the Amended Final
Judgment (Doc.# 355) entered on June 3, 3009 along with all required post-judgment
interest has been fully satisfied by the Defendants. Defendants are therefore relieved
from further participation in this litigation relating to the distribution of that judgment
unless and until the Court might require otherwise (which seems highly unlikely). That
part of Shell’s motions which seeks to amend the caption is DENIED.
IT IS SO ORDERED.
Date: 08/31/2011
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Copies to:
Harry Nicholas Arger
DYKEMA GOSSETT ROOKS PITTS PLLC
harger@dykema.com
Bryan Harold Babb
BOSE MCKINNEY & EVANS, LLP
bbabb@boselaw.com
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Miriam A. Rich
GONZALEZ SAGGIO & HARLAN LLP
richm@gshllp.com
Mark Eliot Shere
ms@sherelaw.com
William G. Stone
STONE & JOHNSON, CHTD.
wstone@stonejohnsonlaw.com
Rosa Maria Tumialan
DYKEMA GOSSETT ROOKS PITTS PLLC
rtumialan@dykema.com
Jeffery Alan Whitney
GONZALEZ SAGGIO & HARLAN LLP
jessica_davis@gshllp.com
DANIEL J. WICKENS
910 Isabelle Drive
Anderson, IN 46013
PAMELA WICKENS
910 Isabelle Drive
Anderson, IN 46013
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