White et al v. West Publishing Corporation et al

Filing 58

DECLARATION of James Hough in Support re: 45 MOTION for Summary Judgment.. Document filed by Reed Elsevier Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W)(Hough, James)

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LADENE RAMSEY BEER, and
KATHERINE K. BOECK, (collectively
“Plaintiffs”) on behalf of themselves and
others similarly situated,
Plaintiffs,

v.

XTO ENERGY, INC. f/k/a CROSS
TIMBERS OIL COMPANY, a Delaware
Corporation (“XTO”),
Defendant.

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Case No. CIV-07-798-L

MOTION FOR RELIEF FROM ORDER OF DECERTIFICATION AND
DISMISSAL AND TO STAY DISTRIBUTION OF NOTICE TO CLASS
Intervenors Bill Fankhouser and Tim Goddard (“Intervenors”) respectfully request
that the Court grant Intervenors’ Motion for Relief from the Court’s Order of Decertification
and Dismissal and to Stay Distribution of Notice to Class pursuant to Rule 60 of the Federal
Rules of Civil Procedure and LCvR 62.1(b). In support thereof, Intervenors set forth the
following:
1.

On October 4, 2004, Plaintiffs Ladene Ramsey Beer and Katherine K Boeck

(“Plaintiffs”) filed this class-action lawsuit in the District Court of Texas County, Oklahoma.
On July 19, 2007, Defendant XTO Energy, Inc., (“Defendant”) removed the action to this
Court. After approximately three and one-half years of conducted discovery and expended

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 2 of 7

resources by both parties, the Court certified this case as a class action with two subclasses
comprising the class, on March 20, 2009. Beer v. XTO Energy, Inc., Case No. CIV-07-798-L,
order at 17 (W.D. Okla. Mar. 20, 2009) (Doc. No. 75).
2.

On April 13, 2010, the Court ordered the decertification of class and dismissal

of the class claims without prejudice, because the Court found the Plaintiffs’ and Plaintiffs’
counsel’s representation of the absent class members to be inadequate. Moreover, in the
Court’s Order, the Court directed for notice to be sent to all class members within twenty
(20) days, or by May 3, 2010, informing the class members of the Court’s decertification of
the class and dismissal of the class claims.
2.

Intervenors, as former class members, filed their Motion to Intervene, on April

26, 2010. In their motion, Intervenors requested that the Court allow Intervenors to intervene,
as representatives on behalf of a putative class comprised of the former class members, with
new counsel and a proposed amended complaint.
3.

Intervenors’ present Motion respectfully requests that the Court relieve

Intervenors and the putative class of former class members from the Court’s Order
decertifying the former class and dismissing all former class claims. In addition, Intervenors’
Motion seeks a stay of that portion of the Court’s Order directing notice to all former class
members regarding the Court’s decertification of the class and dismissal of the class claims.
Plaintiffs and Plaintiffs’ counsel do not object to this motion; however, Defendant’s counsel
does object to this motion.

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 3 of 7

ARGUMENT
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “the court may relieve
a party or its legal representative from a final judgment, order, or proceeding for” five (5)
explicit reasons or “any other reasons that justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6). A
motion pursuant to Rule 60(b)(6) must be made within a “reasonable time” after the entry of
the order. Fed. R. Civ. P. 60(c)(1); see United States v. Cleaver, 319 Fed. Appx. 728, 731
(10 th Cir. 2009) (Rule 60(b) motion filed two years after judgment was not filed within a
“reasonable time”).
Whether to grant a Rule 60(b) motion is within the sound discretion of the court.
McGraw v. Barnhart, 450 F.3d 493, 505 (10 th Cir. 2006). Although the Tenth Circuit has
limited the application of Rule 60(b)(6) to more extraordinary circumstances, “‘Rule 60(b)(6)
has been referred to as a grand reservoir of equitable power to do justice in a particular
case.’” McGraw, 450 F.3d at 505 (quoting Pelican Prod. Co. v. Marino, 893 F.2d 1143, 1147
(10 th Cir. 1990)). Accordingly, Rule 60(b)(6) should be liberally construed to avoid injustice.
McGraw, 450 F.3d at 505; cf. In re Four Seasons Securities Laws Litigation, 63 F.R.D. 422
(W.D. Okla. 1974) (court rejected class member’s Rule 60(b) motion, where such a motion
would undermine finality of judgments and settlements in class actions under the
circumstances.)
Here, Intervenors Rule 60(b)(6) Motion is warranted by the extraordinary
circumstances of this case. At the time the Court entered its Order for decertification and
dismissal, the Court had previously certified Plaintiffs’ class and granted summary judgment

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 4 of 7

with respect to Plaintiffs individual claims, and Plaintiffs and Defendant were preparing for
trial. Based on these circumstances, the Court should grant Intervenors’ Rule 60(b)(6)
Motion for the following reasons.
First, the underlying reasons for the Court’s Order of decertification and dismissal can
be resolved by allowing Intervenors and Intervenors’ counsel to represent the putative class
of former class members. Intervenor, Bill Fankhouser, owns mineral interests within the State
of Oklahoma, and Intervenor, Tim Goddard, owns mineral interests within the State of
Kansas. Thus, Intervenors would adequately represent the interests of both former subclasses
under the previously certified class definition. Furthermore, Intervenors’ counsel has
substantial experience in representing royalty owners in class action lawsuits with the same
or substantially similar issues presented in this case.1
Second, the interests of Intervenors and the members of the former class would best
be served by the Court’s grant of Intervenors’ Motion. Plaintiffs and Defendant have litigated
this matter for approximately four and one-half (4 1/2) years. If the Court grants Intervenors’
Motion, then the Court: (1) could avoid the inevitable waste of Plaintiffs’ and Defendant’s
time, resources and expenses expended and incurred over the past few years; (2) could

1

Intervenors’ counsel currently represents royalty owners in the following class action lawsuits
currently pending in the United States District Court for the Western District of Oklahoma: (1)
Naylor Farms, Inc. v. Anadarko OGC Co., et al., Case No. CIV-08-668-R; (2) Jennifer
McKnight and Scott McKnight v. Linn Operating, Inc., Case No. CIV-10-30-R; and (3)
Sherry Morrison v. Anadarko Petroleum Corp., Case No. CIV-10-135-M. Intervenors’
counsel also represents royalty owners in pending state class action lawsuits and various
other matters.

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 5 of 7

promote the efficient use of such time, resources and expenses by allowing Intervenors to
benefit from the discovery that has already been conducted in this case.2
Third, the Court’s grant of Intervenors’ Motion would represent and promote the most
efficient and effective use of judicial time and resources under the circumstances. Intervenors
are presently ready, willing and able to file an amended complaint and seek re-certification
of the class in a manner that best represents the potential claims and interests of Intervenors
and all former class members from both subclasses. Accordingly, the Court’s familiarity with
this case will aid in expediting all matters that would need to be resolved prior to recertification. Thus, the Court’s grant of Intervenors’ Motion would be the most efficient
means of producing a final resolution of this case.
Third, although Defendant opposes this Motion, Defendant’s interests can also be
served by the Court’s grant of Intervenors’ Motion. Defendant would not have to expend the
time, resources and expenses of reproducing essential discovery materials.
Thus, the Court should grant Intervenors’ Motion for Relief from the Court’s Order
of decertification and dismissal. Moreover, Intervenors submit that it would be more efficient
and less confusing to the potential class members to stay the notice of the decertification and
dismissal pending the outcome of Intervenors’ Motion pursuant to LCvR 62.1(b).

2

Intervenors note that documents and other discovery materials in this case are presently subject to
a confidentiality and protective order. If Intervenors are not granted relief from Court’s Order,
Intervenors will have no choice but to start from scratch regarding all phases of discovery.

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 6 of 7

Relief Requested: Intervenors, Bill Fankhouser and Tim Goddard, respectfully request
that the Court grant Intervenors Motion for Relief from the Court’s Order of decertification
and dismissal entered on April 13, 2010, and Intervenors seek the Court’s stay of its Order
directing notice of decertification and dismissal to all former class members during the
pendency of this matter, as well as, all other relief deemed just and equitable.
Respectfully submitted,
s/Gary Underwood
Conner L. Helms, OBA No. 12115
Gary R. Underwood, OBA No. 9154
Darren R. Cook, OBA No. 17277
HELMS, UNDERWOOD & COOK
2500 First National Center
120 N. Robinson Avenue
Oklahoma City, Oklahoma 73102
Telephone: [phone]
Facsimile: [phone]
Attorneys for Intervenors Bill Fankhouser &
Tim Goddard

Case 5:07-cv-00798-L Document 195 Filed 04/30/10 Page 7 of 7

CERTIFICATE OF SERVICE
I hereby certify that on this 30 TH of April, 2010, I electronically transmitted the
attached document to the Clerk of Court using the ECF System for filing and transmittal of
a Notice of Electronic Filing to the following ECF registrants:
James M. Peters
Michael S. Peters
Robert A. French
Monnet Hayes Bullis Thompson & Edwards
120 N Robinson Ave
Suite 1719
Oklahoma City , OK 73102
James C.T. Hardwick
Mark Banner
Hall Estill-TULSA
320 S Boston Ave
Suite 400
Tulsa , OK 74103-3708
Attorneys for Defendant XTO Energy, Inc.

Edward L. White, OBA #16549
Martin S. High, OBA #20725
EDWARD L. WHITE, P.C.
13924-B Quail Pointe Drive
Oklahoma City, Oklahoma 73134
Attorneys for Ladene Ramsey Beer &
Katherine K Boeck

s/Gary Underwood