Jeter et al v. CEP Mid-Continent L.L.C. et al

Filing 30

OPINION AND ORDER by Judge Terence Kern - The Court Clerk is directed to consolidate Kevin L Jeter, et al v Bullseye Energy Inc., et al, Civil Action No. 4:12-cv-411-TCK-PJC and Kevin L Jeter, et al v CEP Mid-Continent L.L.C. et al, Civil Actio n No. 4:15-CV-00455-TCK-TLW into a single action styled as Kevin Jeter, et al v Bullseye Energy Inc., et al, Civil Action No. 4:12-cv-411-TCK-PJC ; consolidating cases (trial); denying 14 Motion to Dismiss for Failure to State a Claim (srt, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KEVIN JETER,
JOE A. JETER,
BARBARA LUCAS,
JAMES H. MILLER,
SHARON RIGSBY MILLER,
LARRY SMITH,
JANICE SUE PARKER,
individually and as Class Representatives
on Behalf of All Similarly-Situated Persons,
Plaintiffs,
v.
BULLSEYE ENERGY INC.,
CEP MID-CONTINENT, LLC,
KRS&K, an Oklahoma Partnership,
GASHOMA, INC.
PURGATORY CREEK GAS, INC.,
REDBIRD OIL, an Oklahoma Partnership,
WILD WEST GAS, LLC,
WHITE HAWK GAS, INC.,
FOUNTAINHEAD, LLC,
ROBERT M. KANE,
LOUISE KANE ROARK,
ANNE KANE SEIDMAN,
MARK KANE,
PAMELA BROWN,
GARY BROWN,
Defendants.1

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Case No. 12-CV-411-TCK-PJC

and
KEVIN JETER,
JOE A. JETER,
BARBARA LUCAS,

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Case No. 15-CV-455-TCK-TLW

Based on the Court’s Opinion and Order dated October 14, 2015 (Doc. 151),
Defendants Gashoma, Inc., Purgatory Creek Gas, Inc., Redbird Oil, Wild West Gas, LLC, and
White Hawk Gas, Inc. have been dismissed. Fountainhead, LLC was dismissed by stipulation of
the parties.

JAMES H. MILLER,
SHARON RIGSBY MILLER,
LARRY SMITH,
JANICE SUE PARKER,
JAMES D. ENLOE,
CAROLYN R. ENLOE, and
SCOTT BAILY,
individually and as Class Representatives
on Behalf of All Similarly-Situated Persons,

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Plaintiffs,
v.
CEP MID-CONTINENT, LLC,
ROBERT M. KANE,
LOUISE KANE ROARK,
ANNE KANE SEIDMAN,
MARK KANE,
PAMELA BROWN, and
GARY BROWN,
Defendants.

OPINION AND ORDER
Before the Court are Joint Status Reports filed in Case No. 12-CV-411-TCK-PJC (“12-CV411”) (Doc. 170) and Case No. 15-CV-455-TCK-TLW (“15-CV-455”) (Doc. 29).
I.

Consolidation
Based on review of the Joint Status Reports, the Second Amended Complaint in 12-CV-411,

and the Complaint in 15-CV-455, it is clear that the cases involve numerous common questions of
law and fact. The RICO claims asserted in 15-CV-455 against CEP Mid-Continent, the Kane family
members, and the Browns are identical or substantially similar to the newly added RICO claims in
12-CV-411. The only difference is that the claims in 15-CV-455 are asserted by three additional
named Plaintiffs -- James Enloe, Carolyn Enloe, and Scott Baily. Because the Court permitted
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Plaintiffs’ proposed amendment, the new case is essentially subsumed within the original case.
There is no reason for the cases to proceed separately, and consolidation will further the interest of
judicial economy. Therefore, the Court sua sponte consolidates 12-CV-411 and 15-CV-455 for all
purposes, including trial, pursuant to Federal Rule of Civil Procedure 42(a)(2). See Maiteki v.
Marten Transp. Ltd., No. 12-CV-2021-WJM-CBS, 2014 WL 4331664, at *1 (D. Colo. Sept. 2,
2014) (consolidating cases sua sponte based on common questions of law and fact and explaining
that Rule 42 “give[s] the court broad discretion to decide how cases on its docket are to be tried so
that the business of the court may be dispatched with expedition and economy while providing
justice to the parties”).2
II.

Rulings on Scheduling Issues
There are three primary issues raised in the Joint Status Reports, and the Court issues the

following rulings on such issues. First, the Court rejects Plaintiffs’ proposal to hold a preliminary
class-certification hearing on the claims asserted in their original Complaint in 12-CV-411 and then
hold a second class-certification hearing on the newly asserted RICO claims in 12-CV-411 and
originally asserted in 15-CV-455. The Court agrees with Defendants that Plaintiffs’ original motion
for class certification in 12-CV-411 and all related motions are moot in light of the Second Amended
Complaint. However, the parties have completed significant discovery and work toward classcertification questions, and this should be taken into account in the setting of a new schedule.
Second, the Court rejects Defendants’ proposal to delay class-certification briefing until after
the Court rules on their anticipated motion for summary judgment on Plaintiffs’ RICO claims. The

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In its Opinion and Order dated October 14, 2015 (Doc. 151), the Court ordered the
parties to include proposed deadlines for any motions to consolidate. Neither party did so,
indicating that neither party intends to move for consolidation of the two actions.
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Court denied the equivalent of a Rule 12(b)(6) motion on the RICO claims, (see 12-CV-411, Doc.
151), and does not intend to further delay this lawsuit based upon Defendants’ persistent hope that
they will end up in a state forum. Put simply, it is time for Defendants to focus their attention on
defending this case in federal court. The Court shall proceed as it would in any typical class action,
which is to decide class-certification issues prior to summary judgment motions. (See, e.g., 12-CV11, Scheduling Order, Doc. 73.) If necessary, following any rulings on motions for summary
judgment, the Court will determine in what forum the remaining claims must or should proceed.
Finally, the Court agrees with Defendants that staggered dates should be set for the
submission of expert reports. (See JSR, 12-CV-411, Doc. 170, footnote 5.)
The matters of conducting a scheduling conference and entering a schedule consistent with
this Opinion and Order are referred to United States Magistrate Judge Paul Cleary.
III.

Conclusion
It is hereby ORDERED:

1.

15-CV-455 is consolidated with 12-CV-411 for all purposes, including trial. All future
pleadings shall be filed in 12-CV-411, and 15-CV-455 shall be closed. The parties shall use
the case caption attached as “Exhibit A” to this Opinion and Order as the case caption for
all future filings.

2.

United States Magistrate Judge Paul Cleary, the magistrate assigned to 12-CV-411, shall be
the magistrate judge for the consolidated action.

3.

12-CV-411: Plaintiffs’ Motion to Certify a Class Against Wild West Gas, LLC & Bullseye
Energy, Inc. (Doc. 114); Defendants’ Motion to Strike the Proposed Amended Class
Definition (Doc. 128); Defendants’ Motion to Exclude Expert Report of John Burritt

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McArthur (Doc. 134); and Defendants’ Motion to Strike Sur-Rebuttal Report of John Burritt
McArthur and Rebuttal Expert Report of Rick Harper (Doc. 143) are DENIED as moot
based on filing of the Second Amended Complaint, without any prejudice to re-filing.
4.

15-CV-455: Defendants’ Motion to Dismiss Complaint (Doc. 14) is DENIED for the
reasons set forth in the Court’s Opinion and Order dated October 14, 2015 in 12-CV-411
(Doc. 151).
IT IS SO ORDERED this 5th day of January, 2016.

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KEVIN JETER,
JOE A. JETER,
BARBARA LUCAS,
JAMES H. MILLER,
SHARON RIGSBY MILLER,
LARRY SMITH, and
JANICE SUE PARKER,
individually and as Class Representatives
on Behalf of All Similarly-Situated Persons,
Plaintiffs,
and
JAMES D. ENLOE,
CAROLYN R. ENLOE, and
SCOTT BAILY,
individually and as Class Representatives
on Behalf of All Similarly-Situated Persons,
Consolidated Plaintiffs,
v.
BULLSEYE ENERGY INC.,
CEP MID-CONTINENT, LLC,
KRS&K, an Oklahoma Partnership,
GASHOMA, INC.,
PURGATORY CREEK GAS, INC.,
REDBIRD OIL, an Oklahoma Partnership,
WILD WEST GAS, LLC,
WHITE HAWK GAS, INC.,
FOUNTAINHEAD, LLC,
ROBERT M. KANE,
LOUISE KANE ROARK,
ANNE KANE SEIDMAN,
MARK KANE,
PAMELA BROWN, and
GARY BROWN,
Defendants/
Consolidated Defendants.

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Case No. 12-CV-411-TCK-PJC
BASE FILE

Consolidated with:
Case No. 15-CV-455-TCK-PJC