Northern Natural Gas Company v. L.D. Drilling, Inc. et al

Filing 720

MEMORANDUM AND ORDER denying 675 Motion for Certificate of Appealability; denying 676 Motion for Certificate of Appealability. Signed by District Judge J. Thomas Marten on 3/29/2019. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NORTHERN NATURAL GAS CO.,
Plaintiff,
vs.

No. 08-1405-JTM

L.D. DRILLING, INC., et al.,
Defendants.

MEMORANDUM AND ORDER

The Estate of L.D. Davis has moved (Dkt. 676, Suppl. Mtn. Dkt. 676) for
certification of the court’s prior Order (Dkt. 673) for interlocutory appeal. In that Order,
the court denied the Estate’s argument that it had been improperly substituted for L.D.
Davis following his 2016 demise.1 Under 28 U.S.C. § 1292(b), the court may authorize an
immediate appeal as to “a controlling question of law,” if there is “a substantial ground
for difference and appeal” and such appeal “will materially advance the ultimate
termination of the litigation.”

The court reached the same conclusion in the condemnation action, incorporating its conclusions
in this case and finding that the representation of the Estate by counsel for the L.D. Group of
defendants equitably estopped the Estate from raising the claim.
1

The court will not issue a certificate here because an appeal will not materially
advance the litigation. Even assuming the Tenth Circuit accepted the appeal and
ultimately ruled in the Estate’s favor by determining that it had not been properly served,
the likely result would simply be the filing of a new suggestion of death and new motion
for substitution. See Hilsabeck v. Lane Co., 168 F.R.D. 313, 314 (D. Kan. 1996) (“the time for
filing a motion to substitute a party” commences when a suggestion of death has been
properly served). Thus, any such appeal, even if successful from the Estate’s point of
view, is simply additional delay without measurable impact on the ultimate conclusion
of the litigation.
Of course, the Estate argues the Rule 25 deadline for substitution began when it
filed a Notice of Suggestion of Death (Dkt. 666) on April 15, 2018. But that Notice created
no new deadline for moving for substitution, as the Estate by time had already been a
party to the litigation for a year and a half, after Magistrate Judge Gale granted
substitution on September 12, 2016. (Dkt. 577).
Moreover, the court finds an appeal would not address a controlling question of
law as to which there is a substantial basis of a difference of opinion. The Estate, as the
court has noted earlier, now contends that the earlier substitution was not actually filed
on its own behalf. But this raises a factual question, not a question of law. The issue does
not warrant an interlocutory appeal.
The Estate’s supplemental motion argues that appeal should be allowed because
the Kansas state courts would not be bound to follow an award against it if it was not
2

properly served. The court rejects the argument, made for the first time in the motion for
interlocutory appeal, that this court lacks jurisdiction to bind the defendant.
By proper substitution, the Estate is a party to the present litigation. The propriety
of the substitution under federal law was actually litigated, and the decision of this court
are binding on the Estate in proceedings before other courts. See Rhoten v. Dickson, 290
Kan. 92, 113, 223 P.3d 786 (2010) (citing Stanfield v. Osborne Industr., 263 Kan. 388, 396, 949
P.2d 602 (1977), cert. denied, 525 U.S. 831 (1998) and Heck v. Humphrey, 512 U.S. 477, 478
(1994)); Debbrecht v. City of Haysville, 2014 WL 3997180 (Kan. Ct. App. 2014) (“Because this
court is examining the preclusive effects of a federal court judgment, federal law controls
as to the elements of collateral estoppel”).
The issue of the validity of the substitution has been decided on the merits after a
full and fair opportunity for all parties to advance their arguments. The court finds no
grounds for supposing that such decision is not binding.
IT IS ACCORDINGLY ORDERED this 29th day of March, 2019, that the
defendant’s Motions for Certification (Dkt. 675, 676) are hereby denied.

/s/J. Thomas Marten
J. Thomas Marten, Judge

3