Tucker et al v. BP America Production Company
Filing
154
ORDER denying 67 plaintiff's Amended Motion for Class Certification (as more fully set out in Order). Signed by Honorable Vicki Miles-LaGrange on 12/2/2011. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
STANLEY F. TUCKER, individually,
and as Co-Trustee of the Tucker Living
Trust; and on behalf of all others similarly
situated,
Plaintiff,
vs.
BP AMERICA PRODUCTION
COMPANY, a Delaware corporation,
Defendant.
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Case No. CIV-08-619-M
ORDER
The Court has before it for review and consideration the following: Plaintiff’s Amended
Motion for Class Certification, filed October 25, 2010, the Response in Opposition to Amended
Motion for Class Certification by Defendant BP America Production Company, filed November 23,
2010 and plaintiff’s reply, filed December 21, 2010. The Court also heard testimony and received
a variety of evidentiary materials at a multi-day evidentiary hearing held June 2, 3, 7 and 9, 2011.
The parties’ proposed findings of fact and conclusions of law were filed September 30, 2011.1 On
October 21, 2011 the parties’ objections were filed.
Upon careful review of the parties’ submissions as well as the testimony and evidence
presented during the evidentiary hearing, the Court finds, for the reasons that follow, that plaintiff’s
1
Contrary to the Court’s Order directing the parties’ to submit proposed findings of fact
and conclusions of law, defendant submitted a 65 page proposed order. When the Court requests
a party to file a certain pleading, the party should file that pleading in the proper form and should
submit any proposed order pursuant to Court’s rules and procedures.
1
Federal Rule of Civil Procedure 23 motion for class certification should be denied.2
I.
INTRODUCTION
BP America Production Company, a Delaware corporation, (“defendant”) is the exploration
division of BP, PLC, an oil and gas exploration, drilling, and marketing company based in the
United Kingdom. This lawsuit concerns calculations of royalty payments by BP under hundreds of
individual oil and gas lease provisions with hundreds of royalty owners over the last decade in the
N.E. Mayfield production area in western Oklahoma.
Plaintiff Stanley F. Tucker, individually and as Co-Trustee of the Tucker Living Trust, and
on behalf of others similarly situated (“plaintiff”), requests an order certifying claims against
defendant as a class action.
Plaintiff further requests an order appointing him as Class
Representative and appointing his counsel as Class Counsel.
In his amended complaint, plaintiff has alleged that defendant engaged in a course of conduct
to deprive the proposed class members of royalty payments by (1) making improper deductions for
productions costs, (2) selling gas to affiliated companies, (3) failing to properly account for fuel use,
line loss and condensation, (4) breach of its fiduciary duty, (5) violating the Production Revenue
Standards Act (PRSA), (6) actual/constructive fraud, and (7) improperly charging royalty to
purchase equipment. In his amended motion, plaintiff limited the claims asserted to 28 oil wells
producing into the NE Mayfield production area, and to the time period from 2001 to November 1,
2008. However, plaintiff’s recent class description submission removes November 1, 2008 as the
ending period for the proposed class.
2
Though considered to the extent necessary to rule on plaintiff’s amended motion for
class certification, this Order does not resolve the merits of this case.
2
II.
PLAINTIFF’S PROPOSED CLASS
In his Petition on October 4, 2007, then plaintiff Billy B. Tucker, who appeared herein both
in his individual capacity and as Trustee of the Tucker Living Trust (hereinafter the “Plaintiff
Trust”), sought certification of a class, under OKLA. STAT. tit.12, § 2023, et seq.3 Three years later
on October 25, 2010, in his amended motion before this Court, Stanley F. Tucker4 sought
certification of a class defined as:
All persons who own or owned minerals subject to an oil and gas lease in the State
of Oklahoma (except agencies, departments, or instrumentalities of the United States
of America or the State of Oklahoma, and/or persons whom plaintiffs’ counsel are,
or may be, prohibited from representing pursuant to the Rules of Professional
Conduct, and/or overriding royalty owners and unleased mineral owners who have
elected under an OCC forced pooling order to take the bonus/royalty option) from
2001 to November 2008 who received royalty on the sale and disposition of gas
produced from properties linked to the Northeast Mayfield gathering system that was
marketed and/or sold by BP America Production Company and/or its affiliates.
(Plaintiff’s Amended Motion for Class Certification, Doc. No. 67, p. 1.) Eight months later, during
the course of the evidentiary hearing on plaintiff’s amended motion, plaintiff moved to amend his
class definition. Over defendant’s objection5, the Court allowed plaintiff to amend the class
3
Plaintiff filed his Petition in the District Court of Beckham County, Oklahoma on
October 4, 2007. (Doc. No. 1, Exhibit 1.) The case was removed to this Court on June 16, 2008.
(Doc. No. 1)
4
On October 21, 2010, the Court granted plaintiff’s unopposed motion to add Stanley F.
Tucker, son of Billy B. Tucker, as an additional party and dismissed Billy B. Tucker as a party to
this lawsuit.
5
Defendant objected to plaintiff’s request to amend the class definition on several
grounds, including: (1) that the request to amend was untimely as it was not made until after
plaintiff rested his case in support of his Motion, thus denying defendant the ability to examine
plaintiff’s witnesses on the proposed amendment; (2) the amendment removed the ending date
for the class making the temporal scope of the class indefinite; (3) the amendment encompassed
putative class members who indisputably do not have a claim for “improper deductions” as
defendant eliminated deductions in November 2008; and (4) plaintiff offered no evidence to
support the number of class members to be added as a result of the elimination of the November
2008 ending date.
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definition. Thus, plaintiff requests the Court to certify the following class:
All persons and entities who own or owned minerals subject to an oil and gas lease
in the State of Oklahoma (except agencies, departments, or instrumentalities of the
United States of America or the State of Oklahoma, and/or persons whom plaintiffs’
counsel are, or may be, prohibited from representing pursuant to the Rules of
Professional Conduct, and/or overriding royalty owners and unleased mineral owners
who have elected under an OCC forced pooling order to take the bonus/royalty
option) since BP’s acquisition of Vastar in 2001 who received royalty on the sale and
disposition of gas and all other hydrocarbon byproducts produced from properties
linked to the Northeast Mayfield gathering system that was marketed and/or sold by
BP America Production Company and/or its affiliates.
(Plaintiff’s Proposed Class Definition, Doc. No. 134, p. 1.)
III.
DISCUSSION
A.
Applicable Law
The class action is “an exception to the usual rule that litigation is
conducted by and on behalf of the individual named parties only.”
Califano v. Yamasaki, 442 U.S. 682, 700–701, 99 S.Ct. 2545, 61
L.Ed.2d 176 (1979). In order to justify a departure from that rule, “a
class representative must be part of the class and ‘possess the same
interest and suffer the same injury’ as the class members.” East Tex.
Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct.
1891, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41
L.Ed.2d 706 (1974)). Rule 23(a) ensures that the named plaintiffs are
appropriate representatives of the class whose claims they wish to
litigate. The Rule’s four requirements – numerosity, commonality,
typicality, and adequate representation – “effectively ‘limit the class
claims to those fairly encompassed by the named plaintiff's claims.’”
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156,
102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quoting General Telephone
Co. of Northwest v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64
L.Ed.2d 319 (1980)).
Wal-Mart Stores, Inc. v. Dukes, -- U.S. --, 131 S.Ct. 2541, 2550 (2011).
In Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009), the Tenth Circuit summarized
several rules that govern this Court’s decision under Rule 23. Initially, the appellate court reiterated
that “a rigorous analysis of Rule 23’s requirements” must be conducted before a class is certified
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to “ensure that the requirements of Rule 23 are met.” Id. at 1265-66. “Only if the district court is
convinced that the requirements of the federal rules are satisfied may it certify a class.” Id. at 1269.
“In other words, to certify a class the district court must find that the evidence more likely than not
establishes each fact necessary to meet the requirements of Rule 23.” In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008). In resolving the issue of class certification, the
Court accepts as true the plaintiff’s substantive allegations regarding the class, e.g., Lockwood
Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 573 (D. Minn. 1995), but does not examine the
merits of the plaintiff’s claims.6 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). Indeed,
[i]n determining the propriety of a class action; the question is not whether the . . .
plaintiffs have stated a cause of action or will prevail on the merits, but rather
whether the requirements of Rule 23 are met.
Id. at 178 (quoting Miller v. Mackey Int’l, 452 F.2d 424, 427 (5th Cir. 1971)).
Rule 23(a) sets forth four conjunctive requirements which must first be satisfied for class
certification:
One or more members of a class may sue . . . as representative on behalf of all only
if (1) the class is so numerous that joinder of all members is impracticable, (2) there
are questions of law or fact common to the class, (3) the claims . . . of the
representatives are typical of the claims . . . of the class, and (4) the representative
parties will fairly and adequately protect the interest of the class.
Fed. R. Civ. P. 23(a). See also Dukes, 131 S.Ct. at 258. At all times, plaintiff bears the burden of
establishing that each of the requirements of Rule 23 has been met. Vallario, 554 F.3d at 1267.
In addition to proving each of the four requirements of Rule 23(a), plaintiff also bears the
6
The Court is not however prevented from reviewing the nature of plaintiff’s claims and
BP’s defenses, the issues to be decided and the types of proof needed to resolve the issues. See,
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982); Castano v. Am. Tobacco Co., 84 F.3d 734,
744 and n.17 (5th Cir. 1996).
5
burden of satisfying one of the requirements of Rule 23(b). If each of the four Rule 23(a)
requirements are met, Rule 23(b) states a class may be maintained if:
(1) prosecuting separate actions by or against individual class members
would create a risk of:
(A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible
standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual
adjudications or would substantially impair or impede their
ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that
a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b). See also Dukes, 131 S.Ct. at 2548-49 and n.2.
It is not sufficient for plaintiff to merely plead the existence of the four requirements of Rule
23(a) and one of the requirements of Rule 23(b). Id. at 2551. Rather, “a party seeking class
certification must affirmatively demonstrate his compliance with the Rule – that is, he must be
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prepared to prove that there are in fact, sufficiently numerous parties, common questions of law or
fact, etc." Id.7
Frequently, as in this case, the Court’s “rigorous analysis” will necessarily “entail some
overlap with the merits of the plaintiff’s underlying claim.” Id. This is true because “the class
determination generally involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Id. at 2552.
B.
Numerosity
In his amended motion for class certification plaintiff references 28 wells producing into the
Northeast Mayfield Gathering System (“NEMGS”) as the basis for his claims for the time period
from 2001, when allegedly the improper deductions first began, to November 1, 2008. Plaintiff also
submitted a March 7, 2008 “List of Royalty Owners,” which he claims contains more than 900
names. Defendant asserts that, although plaintiff may have proffered evidence of the number of
persons or entities who, as of March 7, 2008, owned royalty interests in wells connected to the
NEMGS, plaintiff never identified the number of royalty owners who have been allegedly aggrieved
by defendant’s actions so as to have standing to pursue one or more of the claims being prosecuted
by plaintiff. Defendant argues that plaintiff has therefore failed to demonstrate that the number of
putative class members satisfies the numerosity requirement of Rule 23(a). Finally, defendant
contends that following the decision to allow plaintiff to amend the proposed class definition during
the evidentiary hearing, plaintiff did not submit any additional evidentiary material or testimony
regarding the number of class members encompassed by the amended class definition. Thus,
7
Because plaintiff has failed to prove each of the four requirements of Rule 23(a), the
Court sees no need to address whether plaintiff satisfies any one of the requirements of Rule
23(b).
7
defendant argues that both before and after the second amendment of the class definition, plaintiff
failed to demonstrate that the number of putative class members satisfies the numerosity requirement
of Rule 23(a)(1).
Here there seems to be no question that this lawsuit involves the calculation of royalty
payments by defendant under hundreds of individual oil and gas lease provisions with hundreds of
royalty owners over the last decade in the NEMGS production area in western Oklahoma. See
defendant’s response in opposition at p. 1. As previously noted, in this case plaintiff bears the
burden of showing that certification is appropriate and proper, e.g., Reed v. Bowen, 849 F.2d 1307,
1309 (10th Cir. 1988), and the Court finds plaintiff has easily met this burden as to the first
requirement. The Court therefore finds there is sufficient numerosity to make joinder of the proposed
class members impractical and, as opposed to class certification, difficult, inconvenient and
inefficient.
C.
Common Questions of Law or Fact
Plaintiff contends there are several common issues of fact and law presented in this lawsuit,
including: (1) whether defendant improperly bases royalty payments on affiliate sales, (2) whether
deductions were improperly charged to royalty owners, (3) whether defendant owes a refund for
deductions which are no longer taken, (4) defendant’s failure to pay for line loss, fuel use, and
condensate, (5) whether defendant breached its fiduciary duty, (6) whether defendant breached the
implied duty to market, (6) whether defendant violated the PRSA by not properly informing royalty
owners as to royalty payments, (7) whether defendant’s “hedging” practice is proper, and (8)
whether royalty owners are paid according to their leases. Plaintiff contends there need be only one
issue affecting all (or a significant number of the class members) and the element of commonality
8
is satisfied. Hallaba v. Worldcom Network Servs., 196 F.R.D. 630, 635 (N.D. Okla. 2000). In
Hallaba the district court ruled in denying class certification that the differences in state laws and
fact-intensive review of deeds involved precluded a finding of predominance of common issues and
superiority of class proceeding required for class certification.
Defendant denies that any of the issues asserted by plaintiff meet the commonality test most
recently set forth by the Supreme Court in Dukes. In Dukes, the Court stated, with respect to the
claims of the class representative and the claims of the putative class members:
Their claims must depend upon a common contention. . . That common contention,
moreover, must be of such a nature that it is capable of classwide resolution - which
means that determination of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.
Dukes, 131 S.Ct. at 2551. Defendant contends resolution of any one of plaintiff’s claims will not
resolve, for the putative class, “one of the claims in one stroke .”
Specifically with respect to the claims regarding post-production charges, plaintiff contends
all wells contributing to the NEMGS incur gathering, dehydration, and compression costs and that
these costs should not be charged to royalty owners. Plaintiff contends these services did not
enhance the value of an already marketable product, but were necessary to create a marketable
product. Defendant contends the evidence presented at the evidentiary hearing shows at least two
groups are wrongfully included in the proposed class due to a lack of commonality with other
proposed class members. Defendant contends the first group is the royalty owners who never bore
a charge for a post-production cost. Defendant contends Stanley Tucker is, in fact, included in this
group as no post-production charges were ever paid from royalty attributable to one of his interests.
Defendant contends this group also includes, for example, all of the putative class members who
own an interest in the Keathley 1-31 well, none of whom have ever born a post-production charge
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against their royalty share. Defendant contends the second group wrongfully included in plaintiff’s
proposed class consists of those royalty owners whose leases expressly permit defendant to charge
the royalty interest for a proportionate share of post-production costs. Defendant contends this
second group also includes Stanley Tucker because one of his leases expressly permits defendant
to charge his royalty interest with a proportionate share of post-production costs.
With respect to plaintiff’s claim regarding affiliate sales, plaintiff contends all the gas from
the NEMGS is marketed by BP Energy Marketing, an affiliate of defendant’s. Plaintiff also
contends the royalty owners should be paid the best price available. Defendant contends that during
the evidentiary hearing plaintiff’s own witness testified that sales made through any affiliate entity
at index pricing is an acceptable practice. Defendant also contends there are leases, including at
least one lease owned by plaintiff, which contractually permits defendant to sell the produced gas
to an affiliate entity. Defendant contends because some lease provisions specifically permit affiliate
sales, plaintiff has failed to demonstrate that all members of the putative class “possess the same
injury” as he alleges he suffered. Trevizo, 455 F.3d at 1163 (citing Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 156 (1982)). With respect to the other leases which do not directly address the topic
of affiliate sales, defendant contends any sales to affiliates were made on the basis of the Gas Daily
Midpoint index price.
Defendant contends the same is true with respect to plaintiff’s claims regarding fuel use.
Defendant contends the evidence presented at the evidentiary hearing shows a lack of commonality
as a number of leases were identified which contractually permit defendant to use gas for fuel in
operations. Defendant contends again that one such example is a lease owned by Stanley Tucker.
Defendant contends because the terms of the leases are not uniform and, in fact, at least one of
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Stanley Tucker’s leases permits defendant to use fuel for its operations, that plaintiff has failed to
demonstrate that all members of the putative class “possess the same interest or suffered the same
injury” as he alleges he suffered. Trevizo, 455 F.3d at 1163.
With respect to plaintiff’s claim regarding the drip condensate kept by Seminole, defendant
contends the evidence introduced at the evidentiary hearing shows, at a minimum, that there are
some wells behind the NEMGS that do not produce condensate. Defendant contends the Keathley
2-31 well which Dr. Stephen Becker identifies as being almost pure methane is such a well.
Defendant contends that because a resolution of this claim would require a well-by-well, month-bymonth analysis of the quality of the gas produced to determine if condensate was being produced
by each well and captured by Seminole, there has been a demonstrated lack of commonality. Though
not dispositive as to certification of the proposed class, defendant contends with respect to the
alleged damages suffered by those royalty owners in wells which produced condensate that might
have been captured by Seminole, the Court would have to review each of the leases to determine if
the lease required defendant to pay royalty on condensate captured by Seminole for which Seminole
never remitted payment to defendant. Therefore, defendant contends with respect to the condensate
claim, that plaintiff has failed to demonstrate that all members of the putative class “possess the
same interest or suffered the same injury” as he alleges he suffered. Trevizo, 455 F.3d at 1163.
Finally, with respect to plaintiff’s claim regarding ownership of the equipment acquired from
Seminole, defendant also contends that plaintiff has again failed to demonstrate commonality. As
previously stated, not all royalty owners were assessed post-production costs, and the owners who
never bore a post-production cost could have no basis to claim ownership of the equipment. Thus,
with respect to the Seminole equipment claim, defendant contends plaintiff has failed to demonstrate
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that all members of the putative class “possess the same interest or suffered the same injury” as he
alleges he suffered. Id.
Upon review of the parties’ submissions the Court finds the language in Dukes instructive.
At least as to his improper deductions for production cost, fuel usage, affiliate sales and equipment
ownership claims, plaintiff has failed to present evidence that defendant treats all royalty owners the
same and that alleged common treatment presents a common question capable of classwide
resolution. The Court finds that the varying terms of the hundreds of leases, relating to matters such
as the method for calculating royalty, allowance for post-production charges or fuel use and affiliate
sales demonstrate the inability to adjudicate the claims of the named plaintiff and expect the same
result to apply to all members of the proposed class. The Court finds plaintiff has failed to identify
issues of fact or law that are truly common to all persons included within the class definition, or to
demonstrate that, if certification was granted, that this case could proceed as a class and reliably
“generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S.Ct. at 2551.
There are, as discussed above, dissimilarities within the proposed class that will impede the
generation of common answers. Id.
Having found each of the allegedly common claims are not, in fact, common to the class, the
Court finds plaintiff has failed to demonstrate the existence of a common question of law or fact
sufficient to satisfy the requirement of Rule 23(a)(2).
D.
Typical Claims of Representative and Class
In his amended motion for certification, plaintiff also contends the typicality requirement of
Rule 23(a) is satisfied when the named plaintiff’s claims merely arise out of the same events or
12
conduct and are based on the same legal theory as those of the class. Plaintiff contends here that his
claims are comparable to the class’s claims and that the resolution of his case will simultaneously
resolve the claims of the absent class members. Plaintiff argues that any differences in lease
language would only be relevant as to the amount of damages each class member would recover and
that the amount of damages recoverable does not destroy typicality.
Defendant contends the representative plaintiff’s claims are not typical of the claims of all
of the proposed class members. Defendant argues that typicality is satisfied if resolution of the class
representative’s claim will necessarily result in resolution of the claims of all members of the class.
Defendant argues that the class representative’s claims arising from his various royalty provisions
are not representative of each other and, in addition, not representative of other members of the
putative class. Defendant specifically points to the fact that plaintiff has both a “gross proceeds”
lease and a “net proceeds” lease and those types of leases have different legal implications.
Defendant further argues that this Court’s decision in Gillespie and the Oklahoma Supreme Court’s
decision in Mittelstaedt hold a class of “gross proceeds” leases cannot be certified because the Court
would have to inquire, at a minimum, for every royalty owner, for every month in the class period
whether defendant obtained the “highest price available” or improperly deducted certain postproduction costs. Defendant contends, specifically, that a finding that defendant improperly
deducted post-production costs with respect to Stanley Tucker would not necessarily resolve the
claims of any of the other royalty owners in the putative class and, for that reason, plaintiff fails to
satisfy the typicality requirement. Defendant argues that the leases giving rise to the variety of
interests owned by Stanley Tucker alone demonstrate the lack of typicality. Defendant states for
example that one of Stanley Tucker’s leases both expressly permits deductions for post-production
13
costs and expressly contemplates that sales of natural gas may be made to an affiliated entity.
Defendant also argues that other of Stanley Tucker’s leases are silent on the subject. Finally,
defendant contends because at least one of Stanley Tucker’s leases expressly permits the deduction
of his proportionate share of post-production costs and one lease expressly contemplates and
provides for the calculation of royalties on sales to affiliated entities, Stanley Tucker’s position is
in part antagonistic to other members of the proposed class.
It remains uncontested that there are hundreds of oil and gas lease provisions involved in this
case. It also remains uncontested that there are different lease provisions relative to affiliate sales
of natural gas, fuel use and deductions charged to royalty owners. The Court finds that upon review
of the record in this case that the claims of the proposed class representative Stanley Tucker are not
typical of the proposed class member’s claims involving hundreds of lease provisions and,
therefore, plaintiff has failed to demonstrate the existence of typicality sufficient to satisfy the
requirement of Rule 23(a)(3).
E.
Representative Fairly and Adequately Protects Interest of Class
The typicality inquiry and the adequacy inquiry overlap somewhat because “if the
representative party’s claims are not typical of the class, the representative party cannot adequately
protect the interests of the absent class members.” In re Farmers Ins. Co., Inc., FCRA Litig., No.
CIV-03-158-F, 2006 WL 1042450, at *4 (W.D. Okla. Apr. 13, 2006). In this case, as discussed
above, the class representative’s claims are not typical of the claims of the putative class members.
In addition, a class representative can also be found to be an inadequate representative if he is not
a member of the class. Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F.2d 1073, 1077 (10th
Cir. 1975).
14
Plaintiff contends the adequacy inquiry only serves to uncover substantial conflicts of
interest between the class representative and the class he seeks to represent. Plaintiff contends a
class representative is inappropriate only if there are substantial or fundamental conflicts which
cause harm to some class members’ claims while other class members benefit from the same
representation. Plaintiff also contends as an individual royalty interest owner and as co-trustee of
the Tucker Living Trust he has sufficient personal knowledge of the facts underlying this case to
serve as a class representative.
With respect to the final requirement of Rule 23(a), defendant argues that Stanley Tucker is
not an adequate class representative in many aspects. First, defendant offers Stanley Tucker’s
deposition testimony which demonstrated he lacked personal knowledge of the facts underlying this
case, including the number of mineral acres owned by the Plaintiff Trust; the name of the well or
wells in which the Plaintiff Trust owns an interest; and the name of the operator of the NMGS.
Defendant also contends Stanley Tucker admitted, in his deposition, that he had done no personal
investigation into the Plaintiff Trust’s claims, lacks familiarity with the facts of the case and thus
is inadequate to serve as a class representative. Kelley v. Mid-Am. Racing Stables, Inc., 139 F.R.D.
405, 409 (W.D. Okla. 1990).
In his reply, plaintiff asserts he would undertake to study the case so as to familiarize himself
with the facts. (Plaintiff’s Reply at 6.) Defendant contends at the evidentiary hearing on his
amended motion, it was again demonstrated that plaintiff lacks fundamental knowledge regarding
the facts of the case and the claims being made. Defendant contends for example, when asked on
cross-examination, plaintiff could not identify a single provision of any of his leases which he claims
were breached by defendant. Defendant also contends plaintiff was unable to testify as to whether
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he is making a claim relating to post-production charges and affiliate sales under some or all of his
leases.8
Because the Court finds Stanley Tucker lacks a fundamental knowledge of the facts of this
case, the Court finds that he is an inadequate class representative and plaintiff has failed to satisfy
the requirement of Rule 23(a)(4). To the extend Rule 23(a)(4) concerns the quality and competency
of the plaintiff’s counsel, the Court finds the plaintiff’s attorneys could fairly and adequately protect
the interest of the class.
IV.
CONCLUSION
Based on the foregoing, the Court DENIES the plaintiff’s Amended Motion for Class
Certification [docket no. 67].
IT IS SO ORDERED this 2nd day of December, 2011.
8
Defendant does not challenge the adequacy of the class counsel team in this case.
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