CDS Family Trust, et al. v. Ernest R. Martin, et al.

Filing 189

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 2/11/2019. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CDS FAMILY TRUST, et al,

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Plaintiff,

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v.

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ERNEST R. MARTIN, et al,

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Defendants.
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Civil Case No. 1:15–cv–02584–JMC

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MEMORANDUM OPINION
At its core, this case involves an allegation that Defendants wrongfully mined coal from an
area where they did not own mining rights. The case is before me for all proceedings by the consent
of the parties pursuant to 28 U.S.C. § 636(c). Now pending before the Court is ECF No. 150,
Defendants’ Corsa Coal Corp. (“Corsa Coal”), Wilson Creek Energy, LLC (“Wilson Creek”), and
PBS Coals, Inc. (“PBS Coals”) (collectively, the “Coal Defendants”) objection pursuant to Federal
Rule of Civil Procedure 72(a), to Magistrate Judge A. David Copperthite’s November 8, 2018
Order (ECF No. 135) granting CDS Family Trust, LLC’s and the Carl DelSignore Family Trust’s
(collectively, the “Plaintiffs”) Rule 37 Request for Sanctions Against the Coal Defendants (ECF
No. 124). The Court has also reviewed Plaintiffs’ response. (ECF No. 151). The Court finds that
no hearing is necessary.
Before addressing the substance, the Court addresses the procedural posture of the Coal
Defendants’ filing. The Coal Defendants originally filed their timely objection to the November
8, 2018 order by Magistrate Judge David Copperthite (to whom the matter had been referred for
discovery and related scheduling) pursuant to Rule 72(a) of the Federal Rules of Civil Procedure.
Rule 72 provides the mechanism for review of a magistrate judge’s order by the presiding district

court judge, in this case U.S. District Judge Richard Bennett. Prior to Judge Bennett’s ruling on
the Coal Defendants’ objection, the case was referred to me for all proceedings by consent of the
parties. (ECF No. 171). At the same time, the discovery referral to Judge Copperthite was
terminated.
Rule 72, by its terms, is limited to the revisory power of district court judges. The Court
could find no authority for the proposition that Rule 72’s grant is conveyed to a magistrate judge
after consent. There is also no mechanism within the Federal Rules providing for one magistrate
judge to review the ruling of a fellow magistrate judge under a Rule 72 standard. At the same time,
the Court believes that it would be unfair to deny an otherwise timely objection to Judge
Copperthite’s order based simply on procedural mootness. Additionally, now that the referral to
Judge Copperthite has been terminated, it would be inappropriate to treat the Coal Defendants’
objections as a motion for reconsideration. Bearing in mind the instruction of Federal Rule 1 to
administer these rules with an eye towards just, speedy and inexpensive resolution of matters, the
Court believes it would be most appropriate to review Judge Copperthite’s Order de novo. With
that standard in mind, the Coal Defendants’ objection is GRANTED in part and DENIED in
part.
I.

DISCUSSION

The crux of the discovery dispute concerns the failure of the Coal Defendants’ expert,
Ronald Mullennex, to issue a supplemental expert report disclosing the additional opinions he
offered at his September 7, 2018 deposition that were not contained in his original expert report,
in violation of Rule 26(a)(2)(D). Specifically, the challenged additional opinions concern: (1) the
identity of coal seams within the disputed area mined; and, (2) a change in Mr. Mullennex’s

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calculations based on a change in the size of the disputed area put forth by Plaintiffs’ expert in his
supplemental report of February 2018. The Court addresses each in turn.
A. Coal Seam Identification
The parties agree that all the coal mined in the disputed area comes from the Upper Freeport
coal seam. They disagree on who owns the mining rights to that seam in the disputed area. One
focal point of contention is whether prior deed(s) conveyed rights to all coal in the disputed area
or to a specific and different seam of coal, the Kittaning seam (and not Upper Freeport). According
to Plaintiffs’ theory, both seams run through the disputed area and the prior deed(s) only conveyed
mining rights to the Kittaning seam. That is, given the presence of two distinct seams in the
disputed area, a reasonable reading of the deed(s) is that they conveyed rights to one seam
(Kittaning) while retaining rights to the other (Upper Freeport). According to the Coal Defendants,
either (1) only the Upper Freeport seam runs through the disputed area, and any references to the
Kittaning seam in the deed(s) at issue for the disputed area are based on mistaken seam
identification, or (2) if both seams run through the disputed area, the deed(s) at issue conveyed all
rights to any coal, regardless of seam.
Mr. Mullennex’s opinion centers primarily on the first assertion. Relying on the 1924 West
Virginia Geological Survey and his own experience as a geologist working in the area, Mr.
Mullennex testified that, historically, at times the Upper Freeport and Kittaning seams were
confused in the North Potomac basin, the general area surrounding where the mining at issue took
place, with portions of the Upper Freeport mislabeled as Kittaning. (ECF No. 150, Ex. B at pp.
19-20 & 25-27). At the same time, Mr. Mullennex could not offer an opinion as to how many
different seams of coal may be present in the disputed area, nor whether the Kittaning seam ran
through the disputed area in addition to the Upper Freeport seam. (Id. at pp. 27-28 & 35). Mr.

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Mullennex also conceded that for any given mine in the area, there could be access to both the
Upper Freeport seam and the Kittaning seam. (Id. at pp. 33-34).
Plaintiffs claim prejudice from this late-disclosed opinion. The Coal Defendants counter
that this is not a new opinion at all, but simply a clarification of what Mr. Mullennex means when
he uses the phase “Upper Freeport seam.” The Court is of a slightly different opinion. In keeping
with Judge Copperthite’s analysis, without timely supplementation (which even to date has not
occurred), the Court would not allow Mr. Mullennex to offer the opinion that, despite references
in the deeds to the contrary, the disputed area only contains coal from the Upper Freeport seam
and any references in the deeds to the Kittaning seam within the disputed area are actually
references to the Upper Freeport seam. Allowing it would require, at a minimum, granting
Plaintiffs a more thorough opportunity to depose Mr. Mullennex and leave to develop their own
expert testimony on this issue. This would require further extending discovery in a case that has
been pending for four years, something the Court is unwilling to do.
At the same time, Mr. Mullennex does not (and by his own admission cannot) offer that
opinion. Instead, Mr. Mullennex merely notes that historically, within the general Potomac Basin
area, there were times when references to the Kittaning seam were actually referring to the Upper
Freeport seam. He supports this by citing his own general experience as a geologist in the area
along with specific mention of this confusion in a learned treatise, the 1924 West Virginia
Geological Survey (a source also referred to by Plaintiffs’ expert, Mr. McDowell and
acknowledged by him as an authoritative source). (ECF No. 137, Ex. E at p. 36 & 38). In the
Court’s view, that does not amount to a new expert opinion, but merely a historical observation
that did not originate with Mr. Mullennex, but in a learned treatise that was equally known to and
relied upon by Plaintiffs’ expert, Mr. McDowell. It is also consistent with the testimony of one of

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the individual Defendants, Mr. Rose. (ECF No. 130 at Ex. Y, p. 3). Additionally, because this is
now a bench trial (the date for which has not yet been finalized), there is a reduced danger of
confusion of the issues or of the Court mistaking these general historical observations for a specific
opinion as to what occurred in this case. Accordingly, his testimony to this general historical
observation will be allowed.
To be clear however, Mr. Mullennex will not be allowed to offer the opinion that as to the
disputed area, the Kittaning seam was or was not present, that historical confusion of the two seams
took place in the disputed area, or that such confusion accounts for the language used in any
particular deed.
B. Calculation Changes
As for Mr. Mullennex’s recalculations based on a slight change in Mr. McDowell’s
estimate of the acreage of the disputed area, the Court will allow the opinion. Mr. Mullennex was
clear that his analysis assumes (without endorsing) Mr. McDowell’s estimate.

When Mr.

McDowell changed that estimate, it should be no surprise that Mr. Mullennex’s opinion would
necessarily change too. His methodology for the analysis did not. Plaintiffs were also able to fully
explore Mr. Mullennex’s re-calculation at his deposition. Accordingly, the Court finds that to be
adequate supplementation of his previous report under Rule 26(e) under the circumstances of this
case.
II.

CONCLUSION

For the foregoing reasons, Defendants’ objections, (ECF No. 150), are GRANTED in part
and DENIED in part. A separate Order shall follow.

Dated: February 11, 2019

/s/
J. Mark Coulson
United States Magistrate Judge
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