McCormick et al v. Halliburton Company et al

Filing 367

ORDER denying 344 plaintiffs' Motion for Leave to Amend Their Complaint (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/8/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MITCHELL L. McCORMICK, et al.,
Plaintiffs,
vs.
HALLIBURTON ENERGY SERVICES,
INC.,
Defendant.

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Case No. CIV-11-1272-M

ORDER
Before the Court is plaintiffs’ Motion and Memorandum of Law in Support of Plaintiffs’
Motion for Leave to Amend Their Complaint, filed April 12, 2016. On May 20, 2016, defendant
filed its response. Based upon the parties’ submissions, the Court makes its determination.
From the mid-1960s until 1991, defendant cleaned missile motor casings for the United
States Department of Defense and its contractors on a portion of its Osage Road facility near
Duncan, Oklahoma (“Site”). Plaintiffs allege that, as a result of those operations, the groundwater
at the Site became contaminated with perchlorate, which has since migrated offsite and into the
private water wells of numerous area residents. On October 31, 2011, plaintiffs filed the instant
action as a purported class action.1 On March 3, 2015, the Court denied class certification in this
case.2

1

On or around that same date, numerous other cases were filed regarding the contamination.
The Court did not consolidate these cases, but the parties in these cases agreed to coordinate
discovery.
2

At the time class certification was denied, an October trial for initial, bellwether plaintiffs
was set. The Court subsequently stayed the trial so that the parties could move forward with
settlement efforts to resolve the property claims of the named plaintiffs. Nearly all of the property
claims have been settled. Trial for initial, bellwether plaintiffs, including plaintiffs with property
claims, is currently set on the Court’s August 2016 trial docket.

Pursuant to Federal Rule of Civil Procedure 15(a)(2), plaintiffs move for leave to amend their
complaint to add eighty-two (82) additional plaintiffs (unnamed putative class members) who own
property that is over the perchlorate contamination plume or its buffer area.3 Plaintiffs assert that
the proposed amendment will not prejudice defendant in any way as defendant is aware of these
individuals’ property claims and has addressed these claims for other plaintiffs, and the parties have
already submitted expert reports concerning these properties. Additionally, plaintiffs assert there
will be no undue delay because the parties have conducted and concluded much of the core
discovery central to all of the new plaintiffs’ property claims and only discovery specific to the
plaintiffs’ property interest and supplements to expert reports will be needed over the next ten
months.4 Plaintiffs further assert that amending the existing complaint presents the most convenient
means to address all property claims as it places all of the claims in a single action.
Defendant contends that by seeking to add these new plaintiffs into this case, plaintiffs are
in fact asking the Court to consolidate or join these claims with the remaining claims in this case and
are asking the Court to do so now rather than after a factual record is developed.5 Defendant asserts
that because the Court has discretion to order consolidation later, there is no prejudice to plaintiffs
in waiting. Defendant further contends that the claims of the new plaintiffs differ in several
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Plaintiffs state that they waited to file the instant motion until all interested property owners
had retained counsel so that a single motion for leave to amend, rather than multiple motions for
leave to amend, could be filed. Additionally, plaintiffs state they delayed filing the instant motion,
with defendant’s knowledge and support, in order to attempt to resolve these property claims with
defendant in advance of seeking leave to amend the complaint.
4

Pursuant to the Court’s April 7, 2016 Order, the Court will set another group of trials no
sooner than six months after the date the first claims are resolved by the August jury trial.
5

Defendant asserts that it is entitled to conduct at least some discovery regarding these new
plaintiffs in order to be in a position to fairly present its views as to whether consolidation should
be ordered.
2

potentially important respects from those of the remaining plaintiffs: (1) the only three remaining
property damage plaintiffs in this case are owners of three large commercial properties; whereas,
the new plaintiffs are all owners of residential properties, except for one property on which a
veterinarian has his office; (2) several of the new plaintiffs purchased their properties after the
contamination issue was publicly announced; (3) most of the new plaintiffs did not drink well water
but were on public water; whereas, most of the previous residential plaintiffs in this case were on
well water; and (4) the new plaintiffs may be pursuing some additional legal theories in their case.
Additionally, defendant contends that forcing it to begin to conduct discovery of the new plaintiffs
immediately while at the same time preparing for the upcoming trial, instead of proceeding with
discovery of the new plaintiffs in the context of a new case, prejudices defendant. Defendant, thus,
contends that the new plaintiffs should be required to file their claims as a separate action.
Federal Rule of Civil Procedure 15(a)(2) provides, in pertinent part, that “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to
amend is within the trial court’s discretion. Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462
(10th Cir. 1991). “Refusing leave to amend is generally only justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993). However, when a motion to amend is filed after the deadline set forth
in the Scheduling Order, as it is in the instant matter6, the moving party must show good cause for

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The deadline to file a motion to amend was March 1, 2013.
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allowing the amendment out of time. See Fed. R. Civ. P. 16(b)(4); SIL-FLO, Inc. v. SFHC, Inc., 917
F.2d 1507, 1518 (10th Cir. 1990).
Having carefully reviewed the parties’ submissions, the Court finds that plaintiffs should not
be granted leave to file an amended complaint and that the new plaintiffs should instead file a new
separate action asserting their claims. The procedural history and circumstances involved in this
case make plaintiffs’ request quite different from the typical motion for leave to amend with which
courts are normally confronted. The instant case has been pending for approximately four and one
half years; there are other related cases, three of which are still pending; this case and the related
cases have not been consolidated but discovery has been coordinated in all the cases; the first
bellwether trial is currently set on the Court’s August 2016 trial docket; and the vast majority of
plaintiffs and claims in this case and the related cases have been settled. While it appears that much
of the discovery that has already been conducted in this case and the related cases will be applicable
to the new plaintiffs’ claims, it also appears that there would be additional discovery, and perhaps
significant discovery, required in relation to the new plaintiffs’ claims. Further, it also appears that
there may be significant differences between the new plaintiffs’ claims and the remaining plaintiffs’
claims, as well as differences between the new plaintiffs’ claims and the already settled property
damage plaintiffs’ claims. Additionally, the Court finds that simply adding these new plaintiffs to
the instant action would be prejudicial, at this stage of the proceedings, to defendant.7 Finally, the
Court finds that requiring the new plaintiffs to file a new case, and addressing the issues of
consolidation and use of discovery at a later date when the new plaintiffs’ claims, and the factual

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The Court further finds that adding these new plaintiffs to the instant action could also be
prejudicial to the new plaintiffs as adding them to a nearly fully developed case could hinder the full
discovery that their claims should receive.
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bases for their claims, are more clear, would be a more judicially efficient and appropriate manner
in which to address the new plaintiffs’ claims.
Accordingly, the Court DENIES plaintiffs’ Motion for Leave to Amend Their Complaint
[docket no. 344].
IT IS SO ORDERED this 8th day of June, 2016.

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