Briggs et al v. Freeport-McMoRan Copper & Gold Inc et al

Filing 186

OPINION AND ORDER granting 168 MOTION for Summary Judgment and Brief in Support Thereof on the Coffey Plaintiffs Claims filed by Freeport-McMoran Corporation, Blackwell Zinc Company Inc, Freeport-McMoRan Copper & Gold Inc, Cyprus Amax Minerals Company. The Court finds there is no dispute as to any material fact, and Defendants are entitled to judgment as a matter of law. Signed by Honorable Charles Goodwin on 03/06/2019. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HELEN BRIGGS et al.,
Plaintiffs,
v.
FREEPORT-MCMORAN COPPER
& GOLD, INC., et al.,
Defendants.

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Case No. CIV-13-1157-G

OPINION AND ORDER
Now before the Court is Defendants’ Motion for Summary Judgment (Doc. No.
168). Plaintiffs have responded in opposition (Doc. No. 176), and Defendants have replied
(Doc. No. 180). After carefully considering the parties’ arguments, the relevant authorities,
and the evidentiary materials submitted pursuant to Rule 56 of the Federal Rules of Civil
Procedure, the Court determines that Defendants’ Motion should be granted.
This lawsuit was filed by a putative class of property owners to recover for damages
allegedly sustained as a result of pollutants emitted by the Blackwell Zinc Smelter in
Blackwell, Oklahoma. See Am. Compl. (Doc. No. 65). The parties agree that the claims
at issue are identical to those asserted in an earlier class action filed in the District Court of
Kay County, Oklahoma. See Op. Br. (Doc. No. 168) at 8, 15-19; Resp. Br. (Doc. No. 176)
at 8-9, 13.1 The earlier lawsuit—styled Bob Coffey, et al. v. Freeport-McMoRan Copper
& Gold Inc., et al., No. CJ-2008-68 (Kay Cty. Dist. Ct. filed Apr. 14, 2008) (the “Coffey

Citations to documents filed with the Court use the page numbers assigned by the Court’s
electronic filing system.
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Litigation”)2—was resolved by settlement of the parties, which was converted to judgment
on March 26, 2012 (the “Coffey Judgment”). See Ex. 4 to Op. Br. (Doc. No. 168-4). The
parties agree that the Coffey Judgment operates to bar the claims asserted in this lawsuit
with respect to any owners of real property in the Class Area (defined below) who were
not excluded from the Coffey settlement class.3 See Op. Br. at 8, 15-19; Resp. Br. at 8-9,
13. The parties disagree, however, as to whether certain Plaintiffs—namely, Bradley
Snow, Keyra Soto, and Sergio and Teresa Arteaga (collectively, “Remaining
Plaintiffs”)4—are subject to that bar.
As for Mr. Snow and Ms. Soto, a class action judgment may preclude a nonparty’s
subsequent civil claim when there is a “substantive legal relationship” between a party and
the nonparty, such as “preceding and succeeding owners of property.” Taylor v. Sturgell,
553 U.S. 880, 894 (2008) (alteration and internal quotation marks omitted); see also Hooks
v. Rocket Oil Co., 1942 OK 324, 191 Okla. 431, 130 P.2d 846, 847. Because Mr. Snow
and Ms. Soto each succeeded to property that was owned by a member of the Coffey

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Docket publicly available through http://www.oscn.net.

The Coffey Judgment broadly releases all claims “whether known or unknown, past,
present or future, suspected or unsuspected, contingent or non-contingent” that were
“asserted in the [Coffey] Litigation . . . or that could have been asserted based upon, arising
from, or related to the facts alleged in the [Coffey] Ligation.” Ex. 4 to Op. Br. (Doc. No.
168-4), pp. 27-28 ¶ 36. Claims for personal injuries were not released. Id.
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Defendants additionally sought summary judgment on the claims of Plaintiffs Jesse
Lively, Jared Wynn, Sean Sullivan, and Melody Sullivan. See Op. Br. (Doc. No. 168) at
6. However, the claims of these Plaintiffs were voluntarily dismissed, and judgment
thereon was entered August 3, 2018. See Rule 54(b) Final Judgment as to All Claims of
Voluntary Dismissal Plaintiffs (Doc. No. 183).
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settlement class who was bound by the Coffey Judgment, they are bound by the Coffey
Judgment.
As for the Arteagas, they are bound by the Coffey Judgment because the state court
in Coffey determined that they were members of the Coffey settlement class. This Court
has no authority to disturb that adjudication.
STANDARD OF REVIEW
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An
issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). “An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Id.
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If the movant carries this initial burden, the
nonmovant must then “go beyond the pleadings and ‘set forth specific facts’ that would be
admissible in evidence in the event of trial from which a rational trier of fact could find for
the nonmovant.” Adler, 144 F.3d at 671 (quoting Fed. R. Civ. P. 56(e)). The Court must
then determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
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law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). Parties may establish the
existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences
drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he
mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the [trier of fact] could reasonably find for
the [nonmovant].” Liberty Lobby, 477 U.S. at 252.
SUMMARY OF UNDISPUTED FACTS
The Coffey Litigation
The Coffey Judgment defines the “Settlement Class” to include all persons who, as
of December 19, 2011, owned real property within a geographical boundary defined as the
“Class Area.”5 Ex. 4 to Op. Br. (Doc. No. 168-4) at 9-10. Putative class members were
afforded an opportunity to “opt out” of the Settlement Class by submitting a written request
for exclusion to a court-appointed “Settlement Administrator” on or before February 17,
2012. See Ex. 3 to Op. Br. (Doc. No. 168-3) at 12-13. As of March 12, 2012, the Settlement
Administrator had received opt-out requests from 870 persons owning 819 properties
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This definition is subject to certain exceptions that are inapplicable here.
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within the Class Area; however, 192 such forms were found to be deficient. Ex. 4 to Op.
Br. (Doc. No. 168-4) at 22-23. The Coffey Judgment directed the Settlement Administrator
to review the deficient opt-out forms, work with property owners to resolve curable
deficiencies, and submit a final opt-out list to the court at a later date. Id. at 23-24. The
Settlement Administrator was further ordered to accept, from property owners who had
previously opted out, requests to rejoin the Settlement Class during a six-month “opt-backin” period. Id. at 24. All owners of property within the Class Area who did not submit a
written request for exclusion were “adjudged to be members of the Settlement Class” and
thus “bound by [the] Final Judgment . . . .” Id.
On November 9, 2012, the Settlement Administrator submitted a preliminary optout list, along with an affidavit requesting guidance from the state court regarding the status
of certain property owners whose requests for exclusion were deficient in some respect.
See Ex. 15 to Reply Br. (Doc. No. 180-2). The court supplied such guidance in an order
issued April 15, 2013. See Coffey, No. CJ-2008-68 (docket entry of April 15, 2013). As
relevant here, the court ruled:
• that “[t]he status of property owners within the Class Area that both opted out
and requested to be Class Members [was to] be determined . . . based upon the
last timely-filed submission of intent received by the Settlement Administrator,”
with no consideration to be given to late filings; and
• that “[i]ndividuals or entities that own multiple properties within the Class Area
that opted out of Class Membership with respect to some, but not all, of their
properties . . . are Class Members and are bound by the Settlement [Agreement]”
and the Court’s Final Approval Order.6
See also Ex. 3 to Op. Br. (Doc. No. 168-3) at 12-13, ¶ 5.2 (“A Settlement Class Member
that owns multiple properties within the class must opt-out all properties or alternatively
have all properties stay within the class . . . . In the event a Settlement Class member seeks
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Id. at 2-3. The Court refers to these determinations, respectively, as “the Last Submission
of Intent Rule” and the “Multiple Property Rule.”
Plaintiffs’ Properties
Bradley Snow owns one property within the Class Area: 203 W. Kansas, which he
acquired from non-party Dennis Carruth after the December 19th cutoff date. See Ex. 5 to
Resp. Br. (Doc 176-5). Keyra Soto owns two properties within the Class Area: (1) 213 E.
Lincoln, which she acquired before the cutoff date; and (2) 214 E. Lincoln, which she
acquired from non-party Sara Miller after the cutoff date. See Ex. 6 to Resp. Br. (Doc 1766). Sergio and Teresa Arteaga jointly own three properties within the Class Area, all of
which they owned on the cutoff date: (1) 311 E. College; (2) 323 W. Florence; and (3)
1222 W. Padon. See Ex. 3 to Resp. Br. (Doc. No. 176-3).
On July 17, 2013, the Settlement Administrator submitted an updated opt-out list
(the “Final Opt-Out List”), which had been modified in accordance with the determinations
in the state court’s April 15, 2013 order. See Coffey, No. CJ-2008-68 (docket entry of July
17, 2013). The Final Opt-Out List did not include: (1) Keyra Soto or the property she
owned on the December 19th cutoff date (213 E. Lincoln); (2) Sara Miller or the property
she owned on the December 19th cutoff date but later transferred to Keyra Soto (214 E.
Lincoln); or (3) Dennis Carruth or the property he owned on the December 19th cutoff date
but later transferred to Bradley Snow (203 W. Kansas). See id. Ex. 9, at 2. The Final Opt-

to opt-out some properties and not others, the Parties will request that the Court deem all
properties owned by the Settlement Class Member in question to have not properly opted
out of the Class Settlement Benefits . . . .”).
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Out List did include the Arteagas and their three properties. See id. The court approved
the Final Opt-Out List in an order dated August 19, 2013. See Ex. 8 to Resp. Br. (Doc. No.
176-8).
The version of the Final Opt-Out List that is attached to the court’s August 19, 2013
order includes only one of the three properties owned by the Arteagas: 1222 W. Padon.
However, the court expressly “approved” the Final Opt-Out List as submitted by the
Settlement Administrator, and that list includes all three properties owned by the Arteagas.
On February 6, 2014, the Settlement Administrator filed a motion to remove certain
properties from the Final Opt-Out List, including, as relevant here, the Arteagas’ property
at 1222 W. Padon. See Ex. 11 to Op. Br. (Doc. No. 168-11). The Settlement Administrator
explained that the 1222 W. Padon property had been “improperly” included on the Final
Opt-Out List insofar as the Arteagas had submitted a claim form on July 17, 2012 (during
the “opt-back-in” period) indicating their intent to rejoin the Settlement Class. Id. at 5.
The Settlement Administrator submitted, and the court agreed, that the Arteagas were
members of the Settlement Class by operation of the Last Submission of Intent Rule. See
id.; Ex. 5 to Op. Br. (Doc. No. 168-5) at 2-3.
ANALYSIS
The doctrine of res judicata (i.e., claim preclusion) prevents parties from relitigating
claims that have been resolved by a final judgment on the merits. Nat’l Diversified Bus.
Servs., Inc. v. Corp. Fin. Opportunities, Inc., 1997 OK 36, 946 P.2d 662, 667.7 The

“The preclusive effect of a state court judgment in a subsequent federal lawsuit generally
is determined by the full faith and credit statute,” 28 U.S.C. § 1738, which “directs a federal
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doctrine applies where: (1) there is “an identity of subject matter, of the parties or their
privies, of the capacity of the parties and of the cause of action”; (2) the court that rendered
the judgment was “one of competent jurisdiction”; and (3) the judgment rendered was “on
the merits of the case and not upon purely technical grounds.” Brady v. UBS Fin. Servs.,
Inc., 538 F.3d 1319, 1327 (10th Cir. 2008) (internal quotation marks omitted) (quoting
Carris v. John R. Thomas & Assocs., 896 P.2d 522, 527 (Okla. 1995)). Further, “the
judgment must be final and not subject to reconsideration or amendment.” Id.
The related doctrine of collateral estoppel (i.e., issue preclusion) prevents parties
from relitigating issues that have been finally determined in a previous suit.

Nat'l

Diversified, 946 P.2d at 667. This doctrine applies where: (1) “the party against whom it
is being asserted was either a party to or a privy of a party to the prior action”; (2) the issue
“has actually been adjudicated in the prior case”; (3) “the adjudicated issue was necessary
and essential to the outcome of that prior case”; and (4) “the party against whom it is
interposed had a full and fair opportunity to litigate the claim or critical issue.” Knight v.
Mooring Capital Fund, LLC, 749 F.3d 1180, 1186 (10th Cir. 2014) (internal quotation
marks omitted) (quoting Durham v. McDonald's Rests. of Okla., Inc., 2011 OK 45, ¶ 5,
256 P.3d 64, 66-67)).
While private settlements ordinarily have no preclusive effect, “[t]he process by
which a class action settlement is approved has the effect of turning the private settlement
court to refer to the preclusion law of the State in which judgment was rendered.” Marrese
v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). Because the Coffey
Judgment was issued by an Oklahoma court, the Court will apply the preclusion law of that
State.
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into . . . a judgment,” which is preclusive for res judicata purposes. 6 Newberg on Class
Actions § 18:19 (5th ed.); see also Kuncl v. Int'l Bus. Machs. Corp., 660 F. Supp. 2d 1246,
1252 (N.D. Okla. 2009) (“[R]es judicata applies with equal force when the prior class
action judgment was the result of a settlement.”). Moreover, absent class members may be
bound by a judgment or ruling even though they are technically non-parties to the action
who did not have a “full and fair opportunity to litigate the claim or critical issue.” Knight,
749 F.3d at 1186 (internal quotation marks omitted). This is because “properly conducted
class actions” are a recognized exception to the general rule against non-party preclusion.
Taylor, 553 U.S. at 894 (citation omitted).
The law of preclusion is, of course, “subject to due process limitations.” Id. at 891.
Accordingly, an absent class member may challenge the binding effect of a class-action
judgment on grounds that: (1) he was denied “notice plus an opportunity to be heard and
participate in the litigation”; (2) he was denied “an opportunity to remove himself from the
class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court”;
and/or (3) the named plaintiff failed to “adequately represent [his] interests.” Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 811–12 (1985).
Remaining Plaintiffs do not challenge the enforceability of the Coffey Judgment on
any due-process grounds, and they concede all—or nearly all8—of the res judicata
elements. See Resp. Br. (Doc. No. 176) at 8-9. They nonetheless argue that they are not
bound by the Coffey Judgment: (1) because the filing of this federal lawsuit operated as a
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Arguably, Remaining Plaintiffs contest the identity-of-the-parties element with respect to
Bradley Snow and Keyra Soto.
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request to be excluded from the Coffey Settlement Class; and/or (2) with respect to Mr.
Snow and Ms. Soto, because the Coffey Judgment’s release of claims has no preclusive
effect on them as subsequent purchasers of property owned by members of the Coffey
Settlement Class. The first of these arguments hinges largely on the interpretation of Okla.
Stat. tit. 12, § 2023(C)(4), about which the parties disagree. The Court will therefore
address the statutory-interpretation issue before evaluating the preclusive effect of the
Coffey Judgment on the claims of each Remaining Plaintiff.
Whether Plaintiffs Requested to Opt Out of the Coffey Settlement Class Pursuant
to Okla. Stat. tit. 12, § 2023(C)(4)
Remaining Plaintiffs contend that the filing of this lawsuit on October 30, 2013
operated as a request for exclusion from the Coffey Settlement Class. Resp. Br. at 6, 7, 1415. To support this contention, Remaining Plaintiffs cite Okla. Stat. tit. 12, § 2023(C)(4),
which provides, in relevant part:
Members to whom individual notice is not directed shall be given notice in
such manner as the court shall direct . . . provided that the cost of giving such
notice shall be reasonable in view of the amounts that may be recovered by
the class members who are being notified. Members to whom individual
notice was not directed may request exclusion from the class at any time
before the issue of liability is determined, and commencing an individual
action before the issue of liability is determined shall be the equivalent of
requesting exclusion from the class.
Id. (emphasis added).
The summary judgment record demonstrates that individual notice was sent to the
Arteagas, Keyra Soto, Dennis Carruth (predecessor-in-interest to Bradley Snow with
respect to his property at 203 W. Kansas), and Sara Miller (predecessor-in-interest to Keyra
Soto with respect to her property at 214 E. Lincoln). See Ex. 14 to Reply Br. (Doc. No.
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180-1) at 5, 14, 83, 100. Thus, Okla. Stat. tit. 12, § 2023(C)(4)’s opt-out provision does
not apply to the Arteagas, who acknowledge that they were putative class members and
received individual notice of the lawsuit but contend that they took the steps necessary to
opt out. See Resp. Br. at 9-12.
Bradley Snow and Keyra Soto contend, as to their properties purchased after
December 19, 2011, that § 2023(C)(4) applies to them because they did not receive
individual notice of the Coffey lawsuit. This argument misconstrues the statute: as nonclass members—insofar as the properties purchased after December 19, 2011—they could
not request to be excluded from the Coffey Settlement Class. The determinative question
with respect to their claims is whether they are bound by the actions of their predecessorsin-interest, who were class members.
Claims of Bradley Snow and Keyra Soto
“[N]onparty preclusion may be justified based on a variety of pre-existing
‘substantive legal relationship[s]’ between the person to be bound and a party to the
judgment.”9 Taylor, 553 U.S. at 894 (citation omitted). One such relationship is plainly
applicable here: that of “preceding and succeeding owners of property.”

Id.

It is

undisputed that neither Dennis Carruth (predecessor-in-interest to Mr. Snow with respect

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In Oklahoma and elsewhere, this exception has been traditionally conceptualized as
“privity.” See Taylor, 553, U.S. at 894 n.8 (observing that “[t]he substantive legal
relationships justifying preclusion are sometimes collectively referred to as ‘privity’”);
Greco v. Foster, 268 P.2d 215, 220 (Okla. 1954) (explaining that “[t]he term ‘Privity’
denotes successive relationship or ownership of the same property from a common
source”). “Privity” is a somewhat amorphous concept that has “come to be used more
broadly, as a way to express the conclusion that nonparty preclusion is appropriate on any
ground.” Taylor, 553, U.S. at 894 n.8 (emphasis added).
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to his property at 203 W. Kansas), nor Sara Miller (predecessor-in-interest to Ms. Soto with
respect to her property at 214 E. Lincoln) requested exclusion—timely or otherwise—from
the Coffey Settlement Class. See Ex. 14 to Reply Br. (Doc. No. 180-1) at 5, 14, 83, 100.
Accordingly, these property owners were among those “adjudged to be members of the
Settlement Class” and “bound by [the] Final Judgment . . . .” Ex. 4 to Op. Br. (Doc. No.
168-4) at 24.
Mr. Snow and Ms. Soto, as successive owners of the respective properties, are
likewise bound by the Coffey Judgment.” See, e.g., Hooks v. Rocket Oil Co., 1942 OK 324,
191 Okla. 431, 130 P.2d 846, 847 (holding that a real estate owner was bound by an earlier
judgment involving the real estate because his “remote grantor” was a party to the action);
Factor Oil Co. v. Brydia, 1938 OK 356, 184 Okla. 113, 85 P.2d 311, 313 (same).
Remaining Plaintiffs submit that the Coffey Judgment operates as a “restrictive
covenant . . . run[ning] with the land” and cannot, therefore, bind Mr. Snow or Ms. Soto
unless it is shown that they “took ownership of the propert[ies] with notice” of it. Resp.
Br. at 14. Remaining Plaintiffs’ invocation of property law is unavailing in this context.
A restrictive covenant is a “private agreement . . . that restricts the use or occupancy of real
property.” BLACK’S LAW DICTIONARY (10th ed. 2014). Even if the Coffey Judgment could
be construed as a restriction on the use or occupancy of real property—which it cannot—
it has the force and effect of a judgment and, under the exception articulated above for
“preceding and succeeding owners of property,” is binding as such upon Mr. Snow and
Ms. Soto.

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Claims of the Arteagas
In contrast to Mr. Snow and Ms. Soto, the Arteagas did submit a written request for
exclusion from the Coffey Settlement Class. See Ex. 3 to Resp. Br. (Doc. No. 176-3).
However, they subsequently submitted a claim form, which was treated as a request to
rejoin the Settlement Class under the Last Submission of Intent Rule. See Ex. 6 to Op. Br.
(Doc. No. 168-6); Ex. 11 to Op. Br. (Doc. No. 168-11) at 5; Ex. 5 to Op. Br. (Doc. No.
168-5) at 2-3. By order dated March 24, 2014, the Arteagas were removed from the Final
Opt-Out List, on which their names and properties had mistakenly appeared. See Ex. 5 to
Op. Br. (Doc. No. 168-5).
Remaining Plaintiffs argue that it is unfair to treat the Arteagas as class members
because: (1) they “never intended to rejoin the Coffey Settlement [Class],” having executed
the claim forms under the mistaken belief that they were “part of the opt out process”;
(2) they “have received no payment . . . in regards to the Settlement”; and (3) they filed
this lawsuit during a period in which they were “treated . . . as opt outs” by the Settlement
Administrator. Resp. Br. at 5-6. Remaining Plaintiffs’ subjective perception of unfairness
has no bearing on whether the Arteagas are bound by the Coffey Judgment; nor does the
Arteagas’ subjective intention to exclude themselves from the Coffey Settlement Class. As
explained above, the Arteagas and their properties were excluded from the Final Opt-Out
List adopted by the state court in its August 19, 2013 order. By operation of that order, the
Arteagas were adjudicated to be members of the Coffey Settlement Class. The propriety
of that adjudication is not reviewable by this Court. See Depuy v. Hoeme, 1989 OK 42,
775 P.2d 1339, 1344 n. 23.
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Estoppel by Laches
What remains is the argument advanced by Remaining Plaintiffs that Defendants
waited too long to raise the affirmative defenses of res judicata and/or collateral estoppel.
See Resp. Br. at 16-17. The Court agrees with Defendants that these affirmative defenses
were timely raised in response to the filing of Plaintiffs Complaint. See Answer (Doc. No.
10) at 40-41; see also Answer to Am. Compl. (Doc. No. 67) at 36.
CONCLUSION
Plaintiffs Bradley Snow and Keyra Soto acquired their properties from individuals
who undisputedly had notice of the Coffey Litigation and declined to opt out. By declining
to opt out, these individuals became members of the Coffey Settlement Class and, as a
result, were (and are) bound by the Coffey Judgment. As succeeding owners, Mr. Snow
and Ms. Soto are likewise bound. See Taylor, 553 U.S. at 894.
Sergio and Teresa Arteaga—though once treated as opt-outs—were adjudicated by
the state court to be members of the Coffey Settlement Class when that court granted the
Settlement Administrator’s motion to remove the Arteagas from the Final Opt-Out List.
As such, they are bound by the Coffey Judgment as well.
The parties agree that the Coffey Judgment otherwise satisfies the elements of res
judicata. Accordingly, the Court finds there is no dispute as to any material fact, and
Defendants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).
IT IS SO ORDERED this 6th day of March, 2019.

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