Cather et al v. EQT Production Company et al

Filing 95

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY, RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57 ]. Signed by District Judge Thomas S. Kleeh on 5/17/2019. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
WILLIAM L. CATHER,
BRENDA L. CATHER,
CHARLES H. CATHER,
LINDA F. CATHER,
EVERET P. BICE, JR.
ELIZABETH BICE,
ROBERT JUNIOR HEMPHILL,
Trustee of Trust A Created Under
the Hemphill Family Trust Dated
October 17, 1995, as Amended,
Plaintiffs,

v.

Civil Action No. 1:17-cv-208
(Judge Kleeh)

EQT PRODUCTION COMPANY,
EQT GATHERING, LLC,
EQT ENERGY, LLC,
EQT MIDSTREAM SERVICES, LLC,
EQT CORPORATION, and
EQUITRANS, L.P.,
Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
Pending before the Court is Plaintiffs’ Rule 60 Motion for
Relief from Final Order or, Alternatively, Motion for Leave to
Amend Complaint [ECF No. 57]. The Motion is fully briefed and ripe
for consideration. For the reasons discussed below, the Court
DENIES Plaintiffs’ requests for relief under both Rule 60 and Rule
15.

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
I.

FACTUAL BACKGROUND

The Plaintiffs in this action, William L. Cather, Brenda L.
Cather, Charles H. Cather, Linda F. Cather, Everet P. Bice, Jr.,
Elizabeth Bice, and Robert Junior Hemphill, Trustee of Trust A
Created Under the Hemphill Family Trust Dated October 17, 1995, as
Amended (together, “Plaintiffs”), are owners of oil and natural
gas mineral interests in Taylor County, West Virginia. They filed
a Complaint on December 7, 2017, against EQT Production Company,
EQT Gathering, LLC, EQT Midstream Services, LLC, EQT Corporation,
and Equitrans, L.P. (together, “Defendants”), alleging that they
did not pay Plaintiffs the agreed-upon royalties under the lease
of Plaintiffs’ oil and natural gas mineral interests. The following
recitation of the facts is taken from the Complaint [ECF No. 1].
The relevant lease of oil and gas mineral interests (the
“Cather Lease” or the “Lease”) provides, in part, as follows:
The Lessee shall pay to the Lessor for each
and every well drilled upon said land, which
produces Natural Gas and/or Casinghead Gas in
a quantity sufficient for the Lessee to convey
to market, a money royalty computed at the
rate of one-eighth (1/8) of the wholesale
market value which is based on the average
current
price
paid
by
the
Lessee
to
independent
operators
in
this
general
area . . . payment to be made on or before the
25th day of the month following that in which
the gas has been delivered into the marketing
pipe line . . . .
2

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
Compl. at ¶ 8. 1 The Cather Lease also provides that “the Lessee,
at its option, may pay and discharge any taxes . . . levied, or
assessed on or against the land or gas and/or oil in place under
the

above-described

lands;

and . . . may

reimburse

itself

by

applying to the discharge of any such . . . tax . . . any
royalty . . . accruing hereunder.” ¶ 10.
On or about March 2012, Defendants began producing oil, gas,
and other hydrocarbons under the Cather Lease. ¶ 20. Plaintiffs
allege that since that time, Defendants have been improperly taking
significant deductions from the royalties owed to Plaintiffs and
that Defendants have been issuing to Plaintiffs monthly statements
that do not reveal the nature of, or the manner of calculation of,
those deductions. ¶¶ 21-28, 33-34.
Plaintiffs allege that Defendants have engaged in a “pattern
and practice” of underpayment of royalties owed to Plaintiffs.
¶¶ 24,

28.

They

believe

intentionally

calculated

transactions”

between

affiliates;

have

“artificial

price”

between

1

the

that

Plaintiffs’

various

improperly

related

Defendants

created

royalties

related

EQT

calculated
by

have

knowingly
based

subsidiaries

royalties

based

non-arm’s

length

and

entities;

unlawfully

have

The Complaint is located at ECF No. 1 in CM/ECF.

3

on

and

“sham
and/or
on

an

transactions
deducted

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
significant amounts from the royalties owed to Plaintiffs. ¶¶ 2930.
Specifically, Plaintiffs allege that EQT Production Company
sells natural gas to another EQT entity at an artificial price,
set by Defendants, that bears no relationship to the higher price
for which Defendants later sell the gas to a non-EQT entity. ¶ 31.
In support of these allegations, Plaintiffs rely, in part, on a
March 2017 letter in which EQT Production admitted the following:
EQT Production Company sells the majority of
the natural gas it produces at the wellhead to
an affiliate, EQT Energy, LLC. While these
sales are to a related entity, EQT Production
Company contracts for an objective index
price, less the necessary costs incurred to
transport the gas to downstream markets. This
pricing formula is designed to obtain the best
available
wellhead
price
for
both
EQT
Production Company and its royalty owners.
¶ 32. Plaintiffs allege that Defendants’ “scheme” was designed to,
and does, decrease royalties paid to Plaintiffs and increase EQT’s
profit later when it sells the gas to a non-EQT entity in an armslength transaction. ¶ 44.
Plaintiffs originally asserted the following claims: Count IV
(Alter Ego to Pierce the Corporate Veil); Count V (Fraud); Count
VI

(Civil

Conspiracy

to

Commit

Fraud);

Count

VII

(Breach

of

Contract); Count VIII (Conversion); Count IX (Unconscionability
and Breach of Duty of Fair Dealing); Count X (Violation of West
4

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
Virginia Consumer Credit and Protection Act, Section 2); Count XI
(Violation of West Virginia Consumer Credit and Protection Act,
Section 6); Count XII (Interest Due to Plaintiffs on Improperly
Withheld Royalty Payments); and Count XIII (Punitive Damages).
II.

PROCEDURAL HISTORY

On February 1, 2018, Defendants filed a Motion for Partial
Dismissal. ECF No. 15. Defendants moved to dismiss all counts and
to dismiss Plaintiffs’ request for attorney’s fees. Id. On April
18, 2018, Judge Keeley held a Scheduling Conference and heard
arguments on the Motion to Dismiss. ECF Nos. 26, 63. She announced
on the record that she would grant in part and deny in part the
Motion, and the following day, she issued a Summary Order in which
she summarized the findings. 2 ECF No. 27. Judge Keeley dismissed
the following claims: Count V (Fraud); Count VI (Civil Conspiracy
to

Commit

Fraud);

Count

VIII

(Conversion);

Count

IX

(Unconscionability and Breach of Duty of Fair Dealing); Counts X
and

XI

(Violations

of

the

West

Virginia

Consumer

Credit

and

Protection Act); and Count XIII (Punitive Damages). Id. She also
dismissed

Plaintiffs’

request

for

attorney’s

fees.

Id.

Judge

Keeley denied the dismissal of Counts IV (Alter Ego) and VII

2

The transcript of the Scheduling Conference provides the Court’s detailed
analysis of the ruling on the Motion to Dismiss. ECF No. 63.

5

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
(Breach of Contract).
Judge Keeley issued a Scheduling Order on July 17, 2018. ECF
No. 36. On November 15, 2018, the final day for the parties to
join parties or amend pleadings, Plaintiffs filed a motion under
Rule 60 of the Federal Rules of Civil Procedure, requesting relief
from Judge Keeley’s Summary Order or, alternatively, leave to amend
the Complaint via Rule 15. 3 ECF No. 57. The case was transferred
to United States District Judge Thomas S. Kleeh on December 1,
2018. ECF No. 65. The pending Rule 60 or Rule 15 Motion is fully
briefed and ripe for review.
III. DISCUSSION
A.

Rule 60
Rule 60(b) of the Federal Rules of Civil Procedure allows the

Court to grant relief in certain circumstances from final orders,
judgments, or proceedings. The United States Court of Appeals for
the Fourth Circuit has written that “[i]n determining whether to
exercise the power to relieve against a judgment under 60(b), the
courts must engage in the delicate balancing of ‘the sanctity of
final judgments, expressed in the doctrine of res judicata, and
the incessant command of the court’s conscience that justice be

3

That motion is predicated largely on Judge Bailey’s decision in The Kay
Company, LLC, et al. v. EQT Production Company, et al., Civil Action No. 1:13CV-151, which was issued just days earlier on November 1, 2018.

6

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
done in light of all the facts.’” Compton v. Alton S.S. Co., Inc.,
608 F.2d 96, 102 (4th Cir. 1979).
A movant under Rule 60(b) “must make a showing of timeliness,
a meritorious defense, a lack of unfair prejudice to the opposing
party, and exceptional circumstances.” Werner v. Carbo, 731 F.2d
204, 206–07 (4th Cir. 1984). After that showing, the court may
provide relief from a final judgment, order, or proceeding only
for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable
neglect;

(2)

newly
discovered
evidence
that,
with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);

(3)

fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct
by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying
it prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
Put simply, “a party should not file such a motion ‘to ask
the

Court

to

rethink

what

the

Court

had

already

thought

through — rightly or wrongly.’” Best Western Int’l, Inc. v. Boury,
7

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
5:04CV100, 2007 WL 9729077, at *1 (N.D.W. Va. 2007) (citing Above
the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983)). Instead, “a motion to reconsider is appropriate
where the court has obviously misapprehended a party’s position or
the facts or applicable law or where the party produced new
evidence that could not have been obtained through the exercise of
due diligence.” Boury, 2007 WL 9729077, at *1.
Relief based on newly discovered evidence (Rule 60(b)(2)), as
Plaintiffs seek here, requires a party to show the following:
(1)

the evidence is newly discovered since
the judgment was entered;

(2)

due diligence on the part of the movant
to discover the new evidence has been
exercised;

(3)

the evidence is not merely cumulative or
impeaching;

(4)

the evidence is material; and

(5)

the evidence is such that is likely to
produce a new outcome if the case were
retried, or is such that would require
the judgment to be amended.

Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989).
Finally, “[w]here the motion is nothing more than a request that
the district court change its mind . . . it [also] is not authorized
by Rule 60(b).” Clear Sky Car Wash, LLC v. City of Chesapeake, No.
2:12cv194, 2013 WL 1560358, at *4 (E.D. Va. 2013). The remedy
8

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
provided by Rule 60(b) is “extraordinary and is only to be invoked
upon a showing of exceptional circumstance.” Compton, 608 F.2d at
102.
Here, Plaintiffs are effectively asking the court to change
its mind about its application of the law. Judge Keeley dismissed
the Fraud, Civil Conspiracy, and Punitive Damages claims (Counts
V, VI, and XIII) because they are barred under the Gist of the
Action doctrine. The “additional” or “new evidence,” including the
testimony

cited

in

Kay, 4

may

bolster

Plaintiffs’

original

allegations but nothing more. Under the analysis Judge Keeley used
in originally dismissing these claims, the additional information
contained in the proposed Amended Complaint would not change the
Court’s finding that the allegations arose from the Lease itself
and, therefore, are barred under the Gist of the Action doctrine.
Moreover, Judge Keeley did not misapprehend the facts or the law
simply because Judge Bailey came to a different conclusion about
the law’s application. 5
This Court may have undertaken a different analysis if Judge

4

Judge Bailey’s decision in The Kay Company, LLC, et al. v. EQT Production
Company, et al. is attached to Plaintiffs’ Memorandum at ECF No. 58-1 in CM/ECF.
5 The Court is mindful of the dueling conclusions reached and compelling analysis
undertaken by both Judge Keeley and Judge Bailey. This Court is not casting a
deciding vote between these learned jurists as it pertains to these complex
questions of law. As explained hereinafter, the Law of the Case doctrine compels
this Court’s conclusion with respect to the pending motion.

9

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
Keeley had dismissed the claims because they lacked sufficient
factual

allegations

to

support

them.

In

that

hypothetical

scenario, any “additional” or “new evidence” could be helpful and
could

possibly

result

in

a

different

outcome.

However,

even

assuming all of the allegations as true, Judge Keeley dismissed
those claims because they arose from the Lease. To come to a
different conclusion here, the Court would need to take an entirely
different

approach

in

considering

the

Motion

for

Partial

Dismissal. In other words, the Court would need to refrain from
applying the Gist of the Action doctrine in the same manner. This
Court will not do so here.
As Judge Keeley previously noted, the Gist of the Action
doctrine provides that a tort claim arising from a breach of
contract may be pursued only if “the action in tort would arise
independent of the existence of the contract.” Secure US, Inc. v.
Idearc Media Corp., No. 1:08CV190, 2008 WL 5378319, at *3-4 (N.D.W.
Va. Dec. 24, 2008) (quoting Syl. Pt. 9, Lockhart v. Airco Heating
& Cooling, 567 S.E.2d 619 (W. Va. 2002)). Stated differently,
“[t]he source of the duty is controlling. To be maintained, the
action in tort must arise independent of the existence of the
contract.” CWS Trucking, Inc. v. Welltech Eastern, Inc., No. 2:04CV-84, 2005 WL 2237788, at *3 (N.D.W. Va. Sept. 14, 2005).
10

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
The Supreme Court of Appeals of West Virginia has reaffirmed
the vitality of this doctrine as recently as Gaddy Engineering Co.
v. Bowles Rice McDavid Graff & Love, LLP, 746 S.E.2d 568 (W. Va.
2013). “[R]ecovery in tort will be barred” where any of the
following four factors is present:
(1)

where liability arises solely from the
contractual relationship between the
parties;

(2)

when the alleged duties breached were
grounded in the contract itself;

(3)

where any liability
contract; and

(4)

when
the
tort
claim
essentially
duplicates the breach of contract claim
or where the success of the tort claim is
dependent on the success of the breach of
contract claim.

stems

from

the

Gaddy, 746 S.E.2d at 577 (quoting Star v. Rosenthal, 884 F. Supp.
2d 319, 328-29 (E.D. Pa. 2012)). The Complaint, and the proposed
Amended Complaint for that matter, base the claims for Fraud and
Conspiracy to Commit Fraud on the contractual relationship between
the parties. Plaintiffs’ Fraud and Conspiracy claims (Counts Five
and Six) are grounded in allegations (1) that Defendants have made
material

misrepresentations

in

royalty

statements

sent

to

Plaintiffs, and (2) that Defendants have engaged in fraudulent
“sham” transactions with EQT entities. Compl. at ¶ 85. Notably,
11

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
Plaintiffs allege that “EQT has materially misrepresented its
obligations and duties to the Plaintiffs under the Cather Lease
and under West Virginia law in that, on a monthly basis, EQT
provides a royalty statement which knowingly, intentionally, and
falsely

states

that

EQT

is

entitled

to

withhold

monies

from

Plaintiffs’ royalty checks.” Id. at ¶ 88. Plaintiffs further allege
that, as a result of EQT’s allegedly “fraudulent transaction[s],”
they have been depriv[ed] of their rightful 1/8 royalty payment
[pursuant to the Cather Lease] from EQT’s actual sale proceeds
upon which Plaintiffs’ royalties should be based.” Id. at ¶ 84.
Thus,

it

is

clear

the

misrepresentations

and

fraudulent

transactions alleged in Plaintiffs’ Fraud and Conspiracy claims
are directly tied to the duties and obligations assumed in the
Cather Lease. Gaddy, 746 S.E.2d at 586. In other words, the claims
do not arise independent of the existence of the contract. CWS
Trucking, 2005 WL 2237788, at *2. Rather, Defendants’ alleged
liability

for

these

claims

“stems

from”

the

Cather

Lease.

Plaintiffs’ claims for Fraud and Conspiracy to Commit Fraud 6 are,
therefore, barred by the Gist of the Action doctrine. 7

6

A similar analysis would apply to Plaintiffs’ Conversion claim. The allegations
of the Complaint make clear that the success of the Conversion claim is dependent
on the success of the Breach of Contract claim.
7 The proposed Amended Complaint does not allege a claim for Conversion or reallege the Consumer Credit Protection Act or Unconscionability and Breach of
Duty of Fair Dealing claims contained in the proposed Amended Complaint. The

12

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
The law as applied by Judge Keeley in the Summary Order,
including her application of the Gist of the Action doctrine, is
the law of the case. That doctrine “posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” United States
v.

Moussaoui,

483

the Case doctrine
judicial

F.3d

220,

supports

232

(4th

“finality

process.” Christianson

Cir.

and

v.

2007).

efficiency

Colt

Indus.

The Law of
[in]

the

Operating

Corp., 486 U.S. 800, 816 (1988). This doctrine is based on the
“sound policy that when an issue is once litigated and decided,
that should be the end of the matter.” United States v. U.S.
Smelting Refining & Mining Co., 339 U.S. 186, 198 (1950). The
doctrine requires courts to uphold earlier decisions in the same
case

unless:

“(1)

a

subsequent

trial

produces

substantially

different evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or (3) the prior
decision

was

clearly

erroneous

and

would

work

manifest

injustice.” Sejman v. Warner–Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988) (internal quotation marks omitted).
None of these exceptions apply here. Although Plaintiffs

dismissed claims reasserted in the proposed Amended Complaint fail for the
reasons discussed herein.

13

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
point to “new evidence” in support of their motion, it cannot be
considered

“substantially

different

evidence”

after

a

trial.

Again, the cited deposition testimony from another civil matter in
this District is not “substantially different” from Plaintiffs’
allegations (in either the filed Complaint or the proposed Amended
Complaint).

Instead,

it

appears

to

be

potentially

confirming

testimony of the Complaint’s allegations – but as this Court
previously held in ruling upon Defendants’ Motion to Dismiss, the
non-breach of contract claims are grounded in the Lease and without
an independent basis for a stand-alone tort claim. Thus, the Gist
of the Action doctrine precludes them. See Gaddy, 746 S.E.2d 568.
Furthermore, no new controlling authority has been cited, 8 and this
Court cannot conclude, based on the prior extensive analysis, that
the prior decision was “clearly erroneous” or would result in
“manifest injustice.”
Because Plaintiffs have not made the requisite showing of
extraordinary circumstances to warrant relief under Rule 60 or
demonstrated an exception to the Law of the Case doctrine, the
Court denies Plaintiffs’ request for relief under Rule 60.

8

Judge Bailey’s decision in Kay, while well-reasoned and insightful, can hardly
be considered “controlling.”

14

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
B.

Rule 15
Plaintiffs’

Motion

requests

Rule

60

relief

or,

in

the

alternative, the Court’s permission to file an Amended Complaint
via Rule 15 of the Federal Rules of Civil Procedure. Under Rule
15, after 21 days have passed since a responsive pleading to the
original complaint was served, “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). Leave to amend “should be
denied only when the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party,
or the amendment would have been futile.” Sciolino v. Newport News,
480 F.3d 642, 651 (4th Cir. 2007). An amendment is futile if it
would not survive a motion to dismiss. Perkins v. United States,
55 F.3d 910, 917 (4th Cir. 1995).
Here, Plaintiffs’ proposed Amended Complaint reasserts, with
additional supporting allegations, causes of action that were
dismissed in Judge Keeley’s Summary Order: Fraud, Civil Conspiracy
to Commit Fraud, and Punitive Damages. ECF No. 58-2. The proposed
Amended Complaint, even with its new allegations, would not survive
a motion to dismiss these claims. When these claims were originally
dismissed, the Court found the claims were barred by the Gist of
15

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
the

Action

doctrine

because

they

arose

from

the

Lease

and,

therefore, could not stand on their own without the breach of
contract claim.
Granting leave to file the proposed Amended Complaint [ECF
No. 58-2] to reassert those same claims would be futile. If
Plaintiffs

were

permitted

to

file

their

proposed

Amended

Complaint, this matter would proceed in a circle, bringing the
parties and the Court back to where the collective group began.
Defendants would file a motion to dismiss the Amended Complaint,
and the Court would be examining the same issues it already
examined and decided. The Gist of the Action doctrine would then
apply in the same way it originally applied, and the claims
reasserted in the Amended Complaint would again be barred. The
Court did not dismiss the claims because of insufficient pleading;
it

dismissed

the

tort

claims

because,

without

the

breach

of

contract claim, they could not stand alone. Here, if the Court
were to reexamine these issues with the so-called “new evidence,”
the

Court’s

finding

would

remain

unchanged.

The

Court

would

ultimately dismiss the claims again because the Gist of the Action
doctrine, as applied by Judge Keeley, is the law of the case. This
circle is precisely the scenario which the Law of the Case doctrine
spares litigants and judges. See Christianson, 486 U.S. at 816
16

CATHER V. EQT

1:17-CV-208

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’
RULE 60 MOTION FOR RELIEF OR, ALTERNATIVELY,
RULE 15 MOTION FOR LEAVE TO AMEND COMPLAINT [ECF NO. 57]
(noting the interest in the “finality and efficiency [in] the
judicial process”). Because granting Plaintiffs leave to file the
proposed Amended Complaint would be futile, the Court denies
Plaintiffs’ Rule 15 Motion.
IV.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motion [ECF No. 57]
is DENIED under both Rule 60 and Rule 15 of the Federal Rules of
Civil Procedure.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record.
DATED: May 17, 2019

/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

17