BOULANGER v. WESTERN PETROLEUM COMPANY et al

Filing 161

ORDER AMENDING AND RESTATING CONSENT ORDER STAYING PROCEEDINGS PENDING APPEAL IN 1:13-mc-00184-NT re:( Status Report due by 5/22/2015.) By JUDGE NANCY TORRESEN. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

In Re: MONTREAL MAINE &
ATLANTIC RAILWAY, LTD.

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Civil Nos.

1:13-mc-00184-NT
1:14-cv-00071-NT
1:14-cv-00113-NT
through and including
1:14-cv-00130-NT

ORDER AMENDING AND RESTATING CONSENT ORDER STAYING
PROCEEDINGS PENDING APPEAL IN 1:13-mc-00184-NT
This matter having come before the Court on the Motion for Order Modifying
Consent Order Staying Proceedings Pending Appeal in 1:13-mc-00184-NT (ECF No.
255) (the “Motion”), filed by Annick Roy (o/b/o Jean-Guy Veilleux), Marie-Josee
Grimard (o/b/o Henriette Latulippe) and Robert Keach, the chapter 11 trustee of
Montreal Maine & Atlantic Railway, Ltd. (the “Trustee” and together, the
“Movants”) in case 1:13-mc-00184-NT, seeking entry of an order modifying the
“Consent Order Staying Proceedings Pending Appeal in 1:13-mc-00184-NT (ECF No.
253) (“Original Stay Order”); and due and appropriate notice of the Motion having
been given; and the Court having reviewed the Motion and having considered any
objections and/or responses to the Motion and with the express consent of the
Movants and the Official Committee Of Victims appointed in the chapter 11 case in
which Montreal, Maine and Atlantic Railway, Ltd. (“MMR” or the “Debtor”) is a
debtor pending in the United States Bankruptcy Court for the District of Maine; the
Court hereby ORDERS that:

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1.

The Motion is granted to the extent and upon the terms set forth herein.

2.

All of the civil actions transferred to this Court pursuant to the Court’s

Order on Motions to Transfer Cases and Motion to Strike (ECF No. 100) (the “Section
157(b)(5) Transfer Order”), and all proceedings therein, are hereby stayed against
all defendants as set forth in this Order. The civil actions subject to this stay include
eighteen civil actions pending in this Court with the following assigned docket
numbers:
1:14-cv-00113-NT
1:14-cv-00114-NT
1:14-cv-00115-NT
1:14-cv-00116-NT
1:14-cv-00117-NT
1:14-cv-00118-NT
1:14-cv-00119-NT
1:14-cv-00120-NT
1:14-cv-00121-NT

1:14-cv-00122-NT
1:14-cv-00123-NT
1:14-cv-00124-NT
1:14-cv-00125-NT
1:14-cv-00126-NT
1:14-cv-00127-NT
1:14-cv-00128-NT
1:14-cv-00129-NT
1:14-cv-00130-NT

By agreement with the plaintiff in Grimard v. Western Petroleum Company (which
case was transferred pursuant to the 157(b)(5) Transfer Order, although the physical
file has not been transferred by the Clerk of the Circuit Court of Cook County
(Illinois)), that case is also subject to the stay contained in this Order. All nineteen
of the civil actions described in this Paragraph 2 are referred to collectively as the
“Transferred Actions.”
3.

As of June 17, 2014 (the date the Original Stay Order was entered on

the docket in this case), all deadlines applicable to the Transferred Actions, whether
imposed by the Federal Rules of Civil Procedure, the Local Rules of the United States
District Court for the District Maine or by applicable law, shall be tolled until the
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stay is terminated pursuant to Paragraph 6 of this Order. Upon the termination of
the stay, the parties to the Transferred Actions shall confer upon an appropriate
scheduling order. For the avoidance of doubt, the stay imposed by the Order is for
procedural purposes only and shall not affect the substantive rights of any parties to
the Transferred Actions.
4.

Without limiting the foregoing, during the stay imposed by this Order:
a. the Court will not rule on the pending Motion of Wrongful Death Claims
for Mandatory Abstention (ECF No. 227), filed by some of the Movants
on or about April 4, 2014.
b. None of the plaintiffs or plaintiffs’ counsel in the Transferred Actions
may treat any of the Transferred Actions as dismissed and/or file, re-file
or recommence any of the Transferred Actions (including new cases on
behalf of any party that is a plaintiff in any of the Transferred Actions)
relating to the derailment of one of MMA’s trains in Lac-Mégantic,
Québec on July 6, 2013 (the “Derailment”) in their current, new, or any
altered form against all or any subset of the current defendants in the
Transferred Actions.
c. Plaintiff’s counsel may represent parties not already plaintiffs in the
Transferred Actions in newly commenced cases against any or any
subset of the current defendants in the Transferred Actions by persons
not plaintiffs in the Transferred Actions (the “New Cases”), provided,
however, that no New Cases related to the Derailment shall be filed
against any of the persons or entities listed on Schedule A to this Order
(each a “Settling Defendant” and collectively the “Settling
Defendants”) other than as permitted pursuant to the applicable
settlement agreement between and among the Trustee and each
Settling Defendant. As a condition to any such stay of the filing of New
Cases against the Settling Defendants arising out of the Derailment, all
such Settling Defendants shall agree (by consent to this Order or by
signing a tolling agreement reasonably satisfactory to the Plaintiff’s
counsel) that any and all applicable statutes of limitations against each
such Settling Defendant with respect to any claims or potential claims
that can be asserted by any person asserting a wrongful death claim
relating to the Derailment (including, without limitation, the plaintiffs)
shall be tolled during the period of the stay imposed by this Order and
the Original Stay Order.

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d. Nothing herein shall prejudice (i) the rights (if any) of parties in the New
Cases to file motions, pleadings, oppositions or other documents in the
courts in which the New Cases are commenced; (ii) the right of the
Trustee to seek or any other party to oppose confirmation of a chapter
11 plan (“Plan”) in the Chapter 11 Case, as defined below, on any
grounds, including, without limitation, a Plan that purports to enjoin
the prosecution of New Cases or release any of the defendants in New
Cases; and (iii) the right of any party or entity to seek, and the right of
any party to oppose, an order under 11 U.S.C. §§ 1507, 1519, or 1521, or
otherwise under standards of international comity, which order
recognizes and enforces any order issued in the CCAA proceedings of
Montreal Maine & Atlantic Canada Co. which provides for releases of
settling defendants and/or a permanent injunction against suits against
settling defendants and other persons as to any and all claims arising
out of the Derailment. Subject to the terms and conditions of this Agreed
Order, all parties shall also retain all rights with respect to any and all
disputes regarding whether any of the New Cases should be transferred
to this Court, and all such rights are reserved pending this Court’s
determination of any such dispute that may arise.
5.

The stay imposed by this Order only applies to the Transferred Cases

and, with respect to Settling Defendants, to the extent set forth above to any New
Cases that might be brought against any Settling Defendant. For avoidance of doubt,
the stay imposed by this Order does not apply (i) to any proceedings or contested
matters in the underlying chapter 11 bankruptcy case of Montreal Maine & Atlantic
Railway, Ltd. (“MMA”) currently pending before the United States Bankruptcy Court
for the District of Maine (the “Chapter 11 Case”), (ii) to any contested matters or
adversary proceedings in the Chapter 11 Case, or (iii) to the proceeding commenced
by Montreal Maine & Atlantic Canada Co., MMA’s wholly-owned subsidiary
(“MMAC”), under the Companies’ Creditors Arrangement Act, R.S.C. 1985, C-36, as
amended, currently pending before the Quebec Superior of Justice (Commercial
Division)(the “Canadian Case”), or any matters in that proceeding.

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Without

limiting the foregoing, nothing in this Order shall limit in any way the ability of the
Trustee, MMAC, or the monitor in the Canadian Case from proposing, and any other
party from objecting, in connection with a Plan or in the Canadian Case, that the
prosecution of the Transferred Cases and/or the New Cases be permanently enjoined
and that any or all of the defendants in such cases be released from any and all claims
held by any or all of the plaintiffs in such cases or held or asserted by any other
persons or entities.
6.

The stay imposed by this Order will terminate on the earlier of (i) the

entry of an Order of this Court dissolving the stay, (ii) the final disposition of the
appeal taken by the Movants, inter alia, of the Section 157(b)(5) Transfer Order
currently pending before the United States Court of Appeals for the First Circuit,
Case No. 14-1485, and (iii) 30 days after notice is filed on this Court’s docket by any
of the parties to any of the Transferred Cases or the Official Committee of Victims,
provided, however, that termination of the stay pursuant to (iii) of this Paragraph
shall be without prejudice to the rights of any party or the Official Committee of
Victims to seek to reimpose the stay and the Court to grant such request.
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Nothing in this Order will prejudice the rights of any person or entity

with respect to the contention that some of the Transferred Actions were or were not
voluntarily dismissed by the plaintiffs pursuant to Fed. R. Civ. P. 41(a). All such
rights are hereby preserved, but any acts with respect to such rights, if any, are
stayed as set forth above. The motions to strike notices of dismissal are withdrawn
without prejudice to the rights of defendants to refile any such motion, and the rights

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of any other party to oppose any such motion, with the status quo continuing in the
interim. The statutes of limitation with respect to any and all claims and causes of
action relating to the Derailment asserted or that could be asserted in the
Transferred Cases shall be and hereby are tolled during the period of the stay
imposed pursuant to the Original Stay Order and this Order.
It is further ORDERED that the parties shall file status reports every 60 days
from the date of this Order.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 23rd day of March, 2015.

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EXHIBIT A TO ORDER AMENDING AND RESTATING CONSENT ORDER
STAYING PROCEEDINGS PENDING APPEAL IN 1:13-mc-00184-NT

The list below consists of the parties who have (a) either executed settlement
agreements with Montreal Maine & Atlantic Canada Co. (“MMAC”) and Robert J.
Keach in his capacity as Chapter 11 Trustee of Montreal, Maine & Atlantic Railway
Ltd. (the “Trustee”); or (b) have agreed upon the terms of settlement agreements
(collectively, the “Settling Defendants”). To the extent any Settling Defendant fails to
execute within the next five (5) business days the relevant settlement agreement,
MMAC and the Trustee reserve the right to amend this list to remove any such
Settling Defendant and to so inform the Court. Nothing in this list shall supersede,
effect, modify or amend any such settlement agreement and to the extent of any
conflict between the descriptions in this list and any such settlement agreement, the
settlement agreement shall govern. All such settlement agreements are subject to
court approval and other conditions, and the inclusion of any person or entity on this
list does not create or imply the release of such person or entity from any claim; in all
respects, the settlement agreements, and the court orders pertaining to the
settlement agreements, shall govern. The Settling Defendants are as follows:
Devlar Energy Marketing LLC (“Devlar”), Oasis Petroleum Inc. and Oasis
Petroleum LLC (jointly, “Oasis”), as well as the entities identified in the
Schedule attached to the Settlement Agreement with Oasis, but strictly as
non-operating working interest owners or joint venturers in the specific Oasisoperated wells that produced oil that was provided and supplied by Oasis that
was transported in the train involved in the Derailment.

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Inland Oil & Gas Corporation, Whiting Petroleum Corporation, Enerplus
Resources

(USA)

Corporation,

Halcón

Resources

Corporation,

Tracker Resources, Kodiak Oil & Gas Corp. (now known as Whiting
Canadian Holding Company, ULC) and Golden Eye Resources LLC,
but strictly as non-operating working interest owners or joint venturers in any
wells that produced oil that was provided, supplied and transported in the
train involved in the Derailment.
Arrow Midstream Holdings CCC.
Marathon Oil Company (“Marathon”), as well as the entities identified in the
Schedule attached to the Settlement Agreement with Marathon, but strictly as
non-operating working interest owners or joint venturers in the specific
Marathon-operated wells that produced and supplied oil that was transported
on the train involved in the Derailment.
QEP Resources, Inc. (“QEP”), as well as those entities identified in the Schedule
attached to the Settlement Agreement with QEP, but strictly as non-operating
working interest owners or joint venturers in the specific QEP-operated wells
that produced and supplied oil that was transported on the train involved in
the Derailment.
Slawson Exploration Company, Inc. (“Slawson”), as well as those entities
identified in the Schedule attached to the Settlement Agreement with Slawson,
but strictly as non-operating working interest owners in the specific Slawsonoperated wells that produced oil that was transported on the train involved in
the Derailment.
Indian Harbor Insurance Company, XL Insurance, XL Group plc (strictly as
insurers of MMA and MMAC).
The Directors and Officers of MMA and MMAC.

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Hartford Casualty Insurance Company (strictly as insurer of Rail World, Inc.).
Chubb Insurance Group and its subsidiary Federal Insurance Company
(strictly as insurers of Rail World, Inc. and Rail World Holdings, LLC).
Rail World Holdings LLC; Rail World, Inc.; Rail World Locomotive Leasing
LLC; The San Luis Central R.R. Co.; Pea Vine Corporation; LMS
Acquisition Corporation; MMA Corporation; Earlston Associates L.P.
General Electric Railcar Services Corporation and General Electric
Company
Trinity Industries, Inc., Trinity Industries Leasing Company, Trinity Tank
Car, Inc., and Trinity Rail Leasing 2012 LLC, Trinity Rail Group LLC,
RIV 2013 Rail Holdings LLC, and Trinity Rail Leasing Warehouse
Trust
Union Tank Car Company (“UTCC”), the UTLX International Division of
UTCC, The Marmon Group LLC and Procor Limited
First Union Rail Corporation
CIT Group, Inc.
ConocoPhillips Company (“ConocoPhillips”), as well as those entities identified
in the Schedule attached to the Settlement Agreement with ConocoPhillips,
but strictly as non-operating working interest owners in the specific
ConocoPhillips operated wells that produced and supplied oil that was
transported on the train involved in the Derailment.
Shell Oil Company and Shell Trading (US) Company
Incorr Energy Group LLC
Enserco Energy, LLC

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The Attorney General of Canada, the Government of Canada, Her Majesty
the Queen in Right of Canada
Irving Oil Limited, Irving Oil Company Limited, Irving Oil Operations
General Partner Limited and Irving Oil Commercial G.P.
The parents, affiliates, predecessors, successors, assigns, directors, officers,
agents, employees, and other representative, or related entities of the Settling
Defendants listed above, as well as their insurers and reinsurers (but strictly to the
extent of coverage afforded to said listed Settling Defendants) are also Settling
Defendants, the whole as more fully provided for in each settlement agreement.
Notwithstanding the foregoing or anything else in this list, and without
implying or providing any limitation, the term “Settling Defendants” as used herein
or above does not include, and shall not be deemed to include, any of the following:
(a) Canadian Pacific Railway Company, (b) World Fuel Services Corporation, (c)
World Fuel Services, Inc., (d) World Fuel Services, Canada, Inc., (e) Petroleum
Transport Solutions, LLC, (f) Western Petroleum Co., (g) Strobel Starostka Transfer
LLC, (h) Dakota Plains Marketing LLC, (i) Dakota Plains Holdings, Inc., (j) DPTS
Marketing Inc., (k) Dakota Plains Transloading LLC, (l) Dakota Petroleum Transport
Solution LLC, and (m) SMBC Rail Services, LLC.

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