Murray et al v. Billings Garfield Land Company et al
OPINION AND ORDER granting 58 Motion to Strike Certain Exhibits . The following exhibits are stricken : Exhibits P, S, Z, and AA to the Lake Declaration ( Docs 48-5; 48-6 at 7-9, 28-31, and 32-39)) and Exhibits A, C, D, and H to the Regenold Declaration ( Doc. 52-2 at 1-5, 14-16, 17-21, and 47-53). Signed by Judge Susan P. Watters on 5/19/2016. (EMH, ) Modified on 5/20/2016 to add text (EMH, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
MAY 2 0 20!6
Glen<, U.S. District Court
Oislrict Of Montana
MARY ANN MURRAY and LIGE M.
OPINION and ORDER
BILLINGS GARFIELD LAND
COMPANY, ROBERT E.
MINERALS, LLC, BEJ MINERALS,
LLC, RTWF, LLC and JOHN DOES
BEJ MINERALS, LLC, RTWF, LLC
MARY ANN MURRAY and LIGE M.
Plaintiffs Mary Ann Murray and Lige Murray (collectively "Murrays") have
moved to strike eight exhibits filed by Defendants BEJ Minerals, LLC and RTWF,
LLC (collectively "Seversons") related to the pending summary judgment motions.
Because these exhibits constitute inadmissible evidence, the Court grants the
Murrays' motion and strikes the exhibits.
Both the Murrays and Seversons have moved for summary judgement. The
motions present the question of whether dinosaur fossils found on a ranch are
considered "minerals" under a mineral deed.
The Murrays challenge several
exhibits filed by the Seversons in connection with the motions.
Pursuant to Local Rule 56.1, the Seversons filed a Statement of Undisputed
Facts in support of their summary judgment motion. (Doc. 48-2.) The Seversons
attached a declaration by their attorney Brian Lake in support of their Statement of
Undisputed Facts ("Lake Declaration"). Twenty-seven exhibits are attached to the
Lake Declaration. At issue here are Exhibits P, S, Z, and AA. Exhibit P is an
article from a magazine named The Furrow. (Doc. 48-5.) The article, entitled "TBones and T-Rexes," profiles an individual named Clayton Phipps and details the
story of how Phipps assisted the Murrays in discovering and excavating fossils
found on the property. The article also describes the Murrays' attempt to sell a
unique collection of fossils called the "Dueling Dinosaurs." Exhibit S is an article
from Men's Journal entitled "The Dinosaur Cowboy," and it also profiles Phipps
and his fossil discoveries. (Doc. 48-6 at 8-9.) Exhibit Z is a printout of a webpage
from an auction house named Bonhams that describes the results of a 2009 auction
of an unrelated Triceratops skull. (Doc. 48-6 at 29-31.) Exhibit AA is an article
from High Country News entitled "Dinosaur Wars." (Doc. 48-6 at 33-39.) The
article again profiles Phipps and describes the controversy regarding private sales
of dinosaur fossils. Mary Ann Murray is quoted in the article:
"If you found an oil well on your land, would you be willing to just
donate it or give it away?" asks Murray. "It is an investment we made
when we bought the land. It's no different than finding minerals on
(Doc. 48-6 at 39.)
Pursuant to L.R. 56.l(b), the Murrays filed a Statement of Disputed Facts in
which they set forth whether they dispute the facts asserted by the Seversons. In
response to the information contained on Exhibits P, S, Z, and AA, the Murrays
stated that the information attributed to the exhibits in the Statement of Undisputed
Facts was "undisputed." (Doc. 55 at 16, 17-18, 20, 21.)
In opposition to the Murrays' summary judgment motion, the Seversons
include a declaration by a different attorney named Stephanie Regenold
("Regenold Declaration"). (Doc. 52-1.) Fourteen exhibits accompany the
Regenold Declaration. At issue are Exhibits A, C, D, and H. Exhibit A contains
photographs of informational panels found at the Museum of the Rockies
describing the formation of fossils. (Doc. 52-2 at 1-5.) Exhibit C is a brochure
published by the Montana Legislature's Environmental Quality Council entitled "A
Guide to Split Estates in Oil and Gas Development." (Doc. 52-2 at 14-16.) This
document is apparently intended for the general public and, as the name suggests,
it describes mineral leasing and the rights and obligations under Montana law for
holders of surface and mineral rights. Exhibit D is a brochure published by the
Montana State University Extension Office entitled "Understanding Mineral
Rights." (Doc. 52-2 at 17-21.) This document's stated purpose is "to help land
and mineral owners understand mineral rights." (Id. at 18.) Both exhibits C and
D are found online. Exhibit H is a legal memo intended for a Dutch museum that
purchased a Tyrannosaurus Rex skeleton excavated from the Murrays' ranch.
(Doc. 52-2 at 47-53.) An attorney retained by the Dutch museum drafted the
memo. In the relevant part of the memo, the attorney concludes that Montana law
is unsettled regarding whether a fossil is part of the surface or mineral estate.
A party may object to material cited to support or oppose a summary
judgment motion if it "cannot be presented in a form that would be admissible in
evidence." Fed. R. Civ. P. 56(c)(2). "A trial court may only consider admissible
evidence in ruling on a motion for summary judgment." Ballen v. City of
Redmond, 466 F.3d 736, 745 (9th Cir. 2006). The Federal Rules of Evidence are
used to determine admissibility. Orr v. Bank ofAm., NT & SA, 285 F.3d 764, 772
(9th Cir. 2002).
III. Regenold Declaration's Exhibits C and D
As discussed above, Exhibits C and D to the Regenold Declaration are
informative brochures that are found online. The authors of these documents were
not deposed and did not otherwise provide statements in this matter. The Murrays
argue that these documents constitute inadmissible hearsay and are not properly
authenticated. The Seversons respond that they did not intend to offer Exhibits C
and D as evidence, but rather as persuasive legal authority similar to a citation to a
law review article. The Seversons continue that the exhibits are also admissible as
evidence by arguing that the brochures are adequately authenticated. The
Seversons do not address the Murrays' argument that the exhibits are inadmissible
Hearsay is "a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
the truth of the matter asserted in the statement." Fed. R. Evid. 80l(c). Unless an
exception applies, hearsay is generally inadmissible. Fed. R. Evid. 802.
Even assuming they are properly authenticated, the Court finds that Exhibits
C and D to the Regenold Declaration constitute inadmissible hearsay. First, the
author of those brochures did not make those statements while testifying in the
current matter. Second, the Seversons offer the exhibits to prove the truth of the
matter asserted in the brochures - how Montana law approaches mineral rights.
The Seversons do not point to a hearsay exception that could apply. Because
Exhibits C and D are statements not made in the current proceeding and are offered
for the truth of the matter asserted, they are inadmissible hearsay.
The Court is not persuaded by the Severson's attempt to portray the exhibits
as persuasive legal authority rather than evidence. The Seversons do not mention
Exhibits C and D in their brief responding to the Murrays' legal arguments.
Instead, they are cited in their Statement of Disputed Material Facts to challenge an
expert opinion proffered by the Murrays (Doc. 53 at 22-23) and support an
additional fact in opposition to the Murrays' summary judgment motion (Doc. 53
at 35). Since they were improperly offered as evidence, the Court strikes Exhibits
C and D to the Regenold Declaration.
IV. Lake Declaration's Exhibit Z
The Lake Declaration's Exhibit Z is the printout from Bonhams' website
that shows the auction results for an unrelated Triceratops skull. The Murrays
argue that Exhibit Z is not properly authenticated and constitutes inadmissible
hearsay. The Seversons respond that the printout is properly authenticated.
Further, the Seversons contend that it is nonhearsay under Fed. R. Evid.
80l(d)(2)(B), as the Murrays made an adoptive admission by not disputing its
contents in their Statement of Disputed Facts.
Fed. R. Evid. 80l(d)(2)(B) excludes from the definition of hearsay any
statement that "is offered against an opposing party and ... is one the party
manifested that it adopted or believed to be true." To qualify as an adoptive
admission, there must be sufficient foundational facts that would allow the jury to
conclude that the party actually acceded to the statement. United States v. Monks,
774 F.2d 945, 950 (9th Cir. 1985). The party offering the exhibit must show
evidence of adoption "beyond mere possession." Transbay Auto Serv., Inc. v.
Chevron USA Inc., 807 F.3d 1113, 1119 (9th Cir. 2015) (quotation omitted). The
surrounding circumstances must "tie the possessor and the document together in
some meaningful way." Id. (quotation omitted). For example, copying another
person's memorandum into an email and prefacing the memorandum with an
inculpatory statement constitutes an adoptive admission. Sea-Land Serv., Inc. v.
Lozen Int'!, LLC., 285 F.3d 808, 821 (9th Cir. 2002). In addition, "a party who is
only vaguely aware of the contents of a document manifests an intent to adopt
these contents by using the document to accomplish an objective or by acting in
conformity with the document." Transbay Auto Serv., 807 F.3d at 1120.
Here, the Court finds that the Murrays did not adopt the contents of Exhibit
Z to the Lake Declaration. The surrounding circumstances do not tie the Murrays
and the printout from the Bonhams' website in any meaningful way. The
Seversons cited Exhibit Zin its Statement of Undisputed Facts for the fact that a
Triceratops skull found elsewhere sold for $242,000. (Doc. 48-2 at 14.) Pursuant
to L.R. 56.1 (b )(1 )(A), the Murrays had to state whether this fact was undisputed or
disputed. If the Murrays disputed the fact, they would have had to "pinpoint cite to
a specific pleading, deposition, answer to interrogatory, admission or affidavit
before the court to oppose each fact." L.R. 56. l(b)(l)(B). The Murrays apparently
did not have a specific document to refute the information found in Exhibit Z.
However, merely stating "undisputed" in response to a fact taken from an internet
printout does not signify that the Murrays intended to adopt the website's contents
to accomplish an objective, nor did the Murrays act in conformity with the
printout. Transbay Auto Serv., 807 F.3d at 1120.
Further, the skull's sale price is not the only information found on the
printout. For example, the web page states that "Triceratops is unquestionably one
of the most popular dinosaurs known." (Doc. 48-6 at 29-30.) The Murrays did not
respond to that assertion, much less demonstrate an intent to adopt that statement
as their own. The Murrays only responded to one fact taken from the web page.
The Court finds that there is insufficient evidence to demonstrate an intent by the
Murrays to adopt the contents of the web page's printout. Even assuming the web
page is adequately authenticated, it is not admissible under Fed. R. Evid.
80l(d)(2)(B). Since it is inadmissible hearsay, the Court strikes Exhibit Z to the
V. Regenold Declaration's Exhibit A
Exhibit A to the Regenold Declaration consists of photographs taken of
information panels found at the Museum of the Rockies. The informational
panels' author is unknown. As an additional fact in their Statement of Disputed
Facts, the Seversons quote a portion of Exhibit A for the purported additional fact
that "Fossils are the mineralized or otherwise preserved remains or traces of onceliving animals, plants and other organisms .... Fossilization occurs when organic
material is replaced by mineral substances." (Doc. 53 at 34.) In their brief in
opposition to the Murrays' summary judgment motion, the Seversons cite to
Exhibit A to argue that the public's common understanding is that fossils fall
within the general category of minerals. (Doc. 52 at 21.) The Murrays argue that
Exhibit A is not properly authenticated and constitutes inadmissible hearsay. The
Seversons counter that Exhibit A is not hearsay as it is not offered for the truth of
the matter asserted within the informational panels, but rather to show the public's
common understanding of how fossils are made.
An out-of-court statement is only hearsay ifit is offered "to prove the truth
of the matter asserted in the statement." Fed. R. Evid. 80l(c)(2). Because it is
included in the Seversons' Statement of Disputed Facts, the Court finds that
Exhibit A was offered for the truth of the matter asserted therein. In a Statement of
Disputed Facts, a party may set forth "each additional/act on which the party relies
to oppose the [summary judgment] motion." L.R. 56.l(b)(2)(A) (emphasis added).
By quoting them as an additional fact, the Seversons are necessarily offering the
informational panels for the truth of the matter asserted therein. The information
panels were not attached merely in support of a legal argument, but rather
submitted as evidence. Exhibit A to the Regenold Declaration is an out-of-court
statement offered for the truth of the matter asserted and the Seversons do not point
to an applicable hearsay exception. Accordingly, the Court finds that it is
inadmissible and strikes Exhibit A to the Regenold Declaration.
VI. Lake Declaration's Exhibits P, S, and AA
Exhibits P, S, and AA to the Lake Declaration are magazine articles. The
Murrays argue that these constitute inadmissible hearsay. The Seversons argue
that they are admissible under Fed. R. Evid. 80l(d)(2)(B) as adoptive admissions
since the Murrays did not dispute them in their Statement of Disputed Facts. The
Seversons also argue that Exhibit AA is admissible as a statement by an opposing
party under Fed. R. Evid. 80l(d)(2)(A) since Mary Ann Murray is quoted in the
The Court finds that the magazine articles are inadmissible hearsay since
they are out-of-court statements offered for the truth of the matters asserted therein.
As discussed above, the Court does not agree that a party makes an adoptive
admission of a document simply by not disputing a small bit of information taken
from the document in a Statement of Disputed Facts. The Court also finds that
Exhibit AA does not constitute an admission by a party opponent simply because
Ms. Murray is briefly quoted in a multipage article. Magazine articles would not
be admissible at trial; accordingly, the Court strikes Exhibits P, S, and AA to the
Lake Declaration as inadmissible hearsay.
VII. Regenold Declaration's Exhibit H
Exhibit H is the legal memo drafted for a Dutch Museum. The Seversons
cited the legal memo as an additional fact by stating that the memo highlighted
"the uncertainty under Montana law about whether fossils are part of the mineral or
surface estate, citing the Farley case, and concluding that '[a] fossilized T-Rex may
fit into this definition of mineral."' (Doc. 53 at 36-37 (quoting Exhibit H to the
Regenold Declaration.)) The Murrays argue that the memo is impermissible
hearsay. The Seversons argue that the memo is not offered for the truth of the
matter asserted therein, but rather to show that the Murrays knew about the
uncertainty of Montana law on the subject.
The Court finds that Exhibit His offered to show the truth of the matter
asserted in the legal memo. As an additional fact in their Statement of Disputed
Facts, the Seversons attempt to use Exhibit H to show the uncertainty of Montana
law on the subject of whether dinosaur fossils falls under the ambit of a mineral
deed. Exhibit His inadmissible hearsay. The contention that Montana law is
unsettled in a certain regard is not a fact for summary judgment purposes, but
rather a legal argument. The Court notes that Exhibit I to the Regenold
Declaration includes an email chain involving the Murrays and their
representatives in response to the memo. The Murrays do not move to strike
None of the exhibits discussed above would be admissible at trial.
Accordingly, the Seversons improperly relied upon them in relation to the
summary judgment motions. The Court notes that none of the exhibits were
particularly relevant to the issue presented in the summary judgment motions, so
the effect of striking them will be minimal.
IT IS HEREBY ORDERED that the Murrays' Motion to Strike Certain
Exhibits Presented by Defendants on Summary Judgment (Doc. 58) is GRANTED.
The following exhibits are stricken: Exhibits P, S, Z, and AA to the Lake
Declaration (Docs. 48-5; 48-6 at 7-9, 28-31, and 32-39) and Exhibits A, C, D, and
H to the Regenold Declaration (Doc. 52-2 at 1-5, 14-16, 17-21, and 47-53).
DATED this _Lf_ day of May, 2016.
~~c<--YL- r ~~
SUSAN P. WATTERS
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?