Hershey v. ExxonMobil Oil Corporation

Filing 351

MEMORANDUM AND ORDER denying 310 Farrar class Motion for Reconsideration; denying 319 Farrar class Motion for Order; and denying 310 Farrar class Motion for Hearing. Signed by District Judge J. Thomas Marten on 10/3/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JIMMIE HERSHEY,
individually and on behalf of all
others similarly situated,
Plaintiff,
vs.

Case No. 07-1300-JTM

EXXONMOBIL OIL CORPORATION,
Defendant.

MEMORANDUM AND ORDER

The matter is before the court on two motions by “the Farrar class,” which has
submitted a Motion for Reconsideration (Dkt. 310), and a Motion to Stay (Dkt. 319). For
the reasons provided herein, these motions are denied.
The court notes that in addition to their arguments on the merits, the respondent
plaintiff class and ExxonMobil also vigorously object to the motions of the Farrar class on
standing grounds. The motions are made by no party recognized in the action, nor on
behalf of any specific class member. The parties note that the time for opting out of the
proposed settlement has passed, and fewer than ten of the approximately 8500 class
members have chosen to do so. Additionally, a few individuals have formally objected to

the settlement, and can now actively and directly participate in the action.
The court finds that it need not resolve the issue. The court denies both motions for
the reasons set out below.

Reconsideration
First, the representatives of the Farrar class seek reconsideration of the court’s Order
(Dkt. 307) which denied their request to partially dissolve the injunction designed to assist
and aid in the efficient settlement of all class claims in the present forum. The court finds
no basis for reconsideration, and the request is hereby denied.
A motion to reconsider under Fed.R.Civ.Pr. 59(e) may be granted to correct manifest
errors, or in light of newly discovered evidence; such a motion is directed not at initial
consideration but reconsideration, and is appropriate only if the court has obviously
misapprehended a party's position, the facts, or applicable law, has mistakenly decided
issues not presented for determination, or the moving party produces new evidence which
it could not have obtained through the exercise of due diligence. Anderson v. United Auto
Workers, 738 F.Supp. 441, 442 (D. Kan. 1989). A motion to reconsider is not "a second
chance for the losing party to make its strongest case or to dress up arguments that
previously failed." Voelkel v. GMC, 846 F.Supp. 1482 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.
1994). The resolution of the motion is committed to the sound discretion of the court.
Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
The Farrar representatives suggest that reconsideration is justified based upon (a)
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the fact that the 1985 Settlement Agreement was later included a separate judgment; (b)
an argument that the partial summary judgment they obtained in the state action was
indeed final, for purposes of applying the Full Faith and Credit Act; and (c) that the parties
to the present action have conceded that finality. These arguments, however, are ones
which could, and for the most part were, made to and rejected by this court. As noted
earlier, a motion for reconsideration is not a device for reiterating previously-rejected
arguments, or for presenting new arguments which should have been presented in the first
instance.
Even if these arguments were properly before the court, however, the motion would
still fail. With respect to the issue of finality, the fact that the 1984 Settlement Agreement
was later memorialized in a state court judgment does not collaterally estop the parties
from litigating the language and meaning of the Agreement, or of litigating claims which
have arisen outside the scope of that Agreement. Further, the court finds nothing in the
actions of the plaintiff class or ExxonMobil suggesting that they agree that the interlocutory
summary judgment award in the state action was indeed a final and binding judgment. In
any event, as the court noted in its Order, even if the state court’s order of partial summary
judgment would otherwise fall within the scope of the Full Faith and Credit Act, this would
not deprive the court of its authority to fashion appropriate injunctive relief under the All
Writs Act.

Motion for Stay
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The Farrar class representatives request a stay of scheduled October 23, 2012
Settlement Hearing until after the resolution of their appeals, contending that the court
lacks jurisdiction.
The motion to stay is hereby denied. The Tenth Circuit is presently considering the
movant’s appeal from the court’s decisions denying them leave to intervene for two
specific and limited purposes. In the first instance, movants sought leave to intervene for
the limited purpose of protecting themselves from a statute of limitations defense which
might be advanced in the present action. Second, they sought leave to intervene for the
purpose of protecting their interest in a partial summary judgment award in the parallel
Farrar action.
The interlocutory appeals from the denials of leave to intervene thus present
procedural issues separate from the merits or fairness of the proposed settlement under
Rule 23(e). See Garcia v. Burlington N. R.R., 818 F.2d 713, 721 (10th Cir. 1987) (appeal of an
interlocutory order normally does not deprive the district court of jurisdiction to address
other matters).
The single case cited by the movants in support of a stay, McCauley v. Halliburton
Energy, 413 F.3d 1158 (10th Cir. 2005), is exceptional and not controlling here. McCauley
involved an appeal from a denial of a motion to compel arbitration. The Tenth Circuit
analogized the action to denials of qualified immunity, reflecting in both instances a right
“to avoidance of litigation” which would be rendered meaningless if the action proceeded
to a consideration of the merits. 413 F.3d at 1162. This narrow exception to the general rule
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has no application here, and the interests of justice support the expeditious resolution of
the settlement of the claims asserted by the vast majority of the plaintiff class.
IT IS ACCORDINGLY ORDERED this 3rd day of October, 2012, that the Motions
to Stay (Dkt. 319) and to Reconsider (Dkt. 310) of the Farrar class are hereby denied.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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