Magers et al v. Chesapeake Appalachia, LLC
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS 60 MOTION TO ALTER OR AMEND JUDGMENT AND GRANTING IN PART AND DENYING IN PART AS MOOT PLAINTIFFS 62 MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT. The Clerk of Court is DIRECTED to file Exhibit B to the plaintiffs motion to amend (ECF No. 62) as plaintiffs second amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr on 12/6/2013. (kac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEREMIAH N. MAGERS and
ANDREA J. MAGERS,
Civil Action No. 5:12CV49
CHESAPEAKE APPALACHIA, L.L.C.,
CNX GAS COMPANY, L.L.C. and
COLUMBIA GAS TRANSMISSION, L.L.C.,
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT
AND GRANTING IN PART AND DENYING IN PART AS MOOT
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
The plaintiffs, Jeremiah N. Magers and Andrea J. Magers, filed
(“Chesapeake”) in the Circuit Court of Marshall County, West
The case was then removed to this Court by Chesapeake
plaintiffs discovered evidence that led them to file a motion to
amend the complaint in order to join CNX Gas Company, L.L.C.
(“CNX”) and Columbia Gas Transmission, L.L.C. (“Columbia”).
motion to amend was granted by this Court.
In their amended
complaint, the plaintiffs claim that the defendants’ drilling
related activities on a tract of property adjacent to their own
resulted in the contamination of their drinking well water.
Thereafter, Columbia filed a motion to dismiss or in the
alternative, a motion for a more definite statement.
denied Columbia’s motion to dismiss but granted its motion for a
more definite statement.
The plaintiffs filed a more definite
statement in accordance with that order.
In response, CNX filed a
motion to dismiss arguing that the plaintiffs could not assert a
claim against it under West Virginia Code § 22-7-1 et seq.
Court granted CNX’s motion to dismiss and CNX was terminated as a
party to this action.
Ten days after that judgment, the plaintiffs filed a motion
for reconsideration of the judgment dismissing CNX as a party
The plaintiffs later filed a motion to amend their
These motions are now fully briefed and ripe for
review. For the reasons set forth below, the plaintiffs’ motion to
alter or amend the judgment is denied and the plaintiffs’ motion
for leave to file an amended complaint is granted in part and
denied in part as moot.
In granting the motion to dismiss filed by CNX, this Court
found that (1) the plaintiffs did not have standing under West
Virginia Code §§ 22-6B-2(7) and 22-7-2(6) because the drilling did
not actually occur on the plaintiffs’ property but on property
adjacent to their property; (2) there was no implied private cause
of action under any of the statutes the plaintiffs claimed CNX had
violated; and (3) the plaintiffs had failed to make a claim for
negligence by failing to clearly state the duty owed to them by
On August 23, 2013, the plaintiffs timely filed the motion to
reconsider and alter or amend judgment. Then on September 5, 2013,
the plaintiffs timely filed the motion to amend their complaint.
Both CNX and Columbia filed responses to those motions; Chesapeake
has not responded to either motion.
No reply has been filed by the
plaintiffs to responses of CNX and Columbia.
Plaintiffs’ Motion to Alter or Amend Judgment
In the plaintiffs’ motion to alter or amend judgment, the
plaintiffs make two arguments.
First, the plaintiffs contend that
based on the direction given by this Court in its order directing
the plaintiffs to file a more definite statement, they did not
further address their common law negligence claims against the
defendants in their more definite statement because this Court had
noted that what they had already alleged through the statutes had
created a duty sufficient to maintain those claims.
they are not able to address issues against CNX in more depth
because discovery has not been completed.
Second, the plaintiffs
claim they are not attempting to raise new arguments that could
have previously been raised, in contrast they have maintained that
their claims were based on statute and negligence as early as their
memorandum in opposition to Columbia’s motion to dismiss. Further,
they argue that reinstating their claims will not prejudice CNX or
complaint and the parties are already aware of the claims.
plaintiffs claim that because of these assertions they would face
manifest injustice if their motion is not granted.
In CNX’s opposition brief, it first discusses the plaintiffs’
motion to alter or amend judgment.
CNX contends that because the
plaintiffs have not disclosed an alleged error by this Court sought
to be corrected, let alone a “direct, obvious and observable” one,
its motion should be denied.
Thus, CNX asserts, the plaintiffs
have not shown that they would face manifest injustice.
CNX asserts that the order granting Columbia’s motion for a more
plaintiffs’ claims against CNX and thus, the plaintiffs could not
rely on it in determining the sufficiency of their claims against
Additionally, CNX argues that the plaintiffs have failed to
show that their pleadings even now state a claim upon which relief
could be granted and that they have not shown that there was any
discernible error by this Court.
Plaintiffs’ Motion to Amend Complaint
In the plaintiffs’ motion to amend the complaint, they argue
that they should be allowed to amend their complaint in order to
clarify their claim of negligence against the defendants. Further,
they state that it is within the deadline provided by the amended
scheduling order and that the amended complaint will not cause any
undue delay or any undue prejudice to the defendants because they
already have notice of the negligence claims.
The plaintiffs have
attached two versions of their amended complaint – one for if their
motion to reconsider or alter judgment is granted (ECF No. 62 Ex.
A) and one for if that motion is not granted (ECF No. 62 Ex. B).
complaint, Columbia contends that the plaintiffs should not be
allowed to amend their complaint because the assertions they are
attempting to make against Columbia have already been dismissed
Columbia asserts that this Court should uphold its
order dismissing CNX and that the same principles should be applied
to it as its gas wells are also adjacent to the plaintiffs’
property. Finally, Columbia claims that its assertions are not the
same as those it made in its motion to dismiss because it did not
make the “near or adjacent” argument in its motion to dismiss as
As for the plaintiffs’ motion to amend, CNX claims that if
this Court does not grant the plaintiffs’ motion to alter or amend,
the plaintiffs’ motion to amend its complaint would be futile.
Secondly, if this Court does grant the motion to alter or amend
judgment, CNX argues that the plaintiffs still fail to meet the
requirements of Rule 15 and 12(b)(6) because the plaintiffs still
attempt in their amended complaint to bring the statutory claims
that this Court had granted the motion to dismiss on. Finally, CNX
because they will continue to have to pay attorneys’ fees and costs
because of the plaintiffs’ motions and other pleadings.
Motion to Alter or Amend Judgment
The plaintiffs request that this Court alter or amend its
judgment dismissing CNX as a defendant based upon the merits of
that judgment, pursuant to Federal Rule of Civil Procedure 59(e).
The United States Court of Appeals for the Fourth Circuit has
recognized three grounds for amending an earlier judgment: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct
a clear error of law or prevent manifest injustice.
Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
“[Federal] Rule [of Civil Procedure] 59(e) motions may not be used
. . . to raise arguments which could have been raised prior to the
issuance of the judgment, nor may they be used to argue a case
under a novel legal theory that the party had the ability to
address in the first instance.”
A Rule 59(e) motion may not
be used to re-litigate old matters and is an extraordinary remedy
that should be used sparingly.
It is improper to use such a
motion to ask the court to “rethink what the court has already
thought through–rightly or wrongly.”
Above the Belt, Inc. v. Mel
Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
Motion for Leave to Amend Complaint
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides
that, after a defendant files a responsive pleading, and either
leave of court or permission of the opposing party is necessary to
amend a complaint, requests for such leave should nonetheless be
granted “freely . . . when justice so requires.” The Supreme Court
has held that, “in the absence of any apparent or declared reason
–such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendment,
futility of amendment, etc.–the leave sought should, as the rules
require, be ‘freely given.’”
Foman v. Davis, 371 U.S. 178, 182
This is true even when leave to amend is requested after the
district court has entered judgment in a case.
See Laber v.
Harvey, 438 F.3d 404 (4th Cir. 2006) (holding that the standard for
granting a post-judgment leave to amend is the same as it is for
granting a pre-judgment motion for the same).
This is because, in
the Fourth Circuit, “delay alone” is not sufficient reason to deny
a motion for leave to amend.
Therefore, the simple fact that
judgment has been entered is not grounds, without more, for denying
leave to amend. Id. at 427. However, the post-judgment climate is
a major factor in the consideration of the other factors relevant
to the inquiry, most especially those of bad faith and prejudice to
the opposing party.
See id. and Adams v. Gould, 739 F.2d 858, 864
(both remarking that the analysis of the factors will be influenced
by the fact that judgment has been entered before leave to amend
The most significant difference between pre-judgment motions
to amend and post-judgment requests is that, when judgment has been
entered, it must be vacated pursuant to Federal Rule of Civil
Procedure 59(e) or 60(b) before leave to amend may be granted. See
Laber, 438 F.3d at 427.
However, the inquiry regarding whether or
not to vacate the judgment in order to allow a post-judgment motion
for leave to amend is not that of either Rule 59(e) or 60.
the standard to be employed is simply that of Rule 15.
must simply decide whether to grant leave to amend and if leave is
appropriate, the original judgment should be vacated.
Penn National Gaming, Inc., 637 F.3d 462, 470-71 (4th Cir. 2011).
Motion to Alter or Amend Judgement
The plaintiffs argue that because of this Court’s order
dismissing CNX, they did not further address their common law
negligence claims because this Court stated that they had already
alleged those claims through the statutes they cited as creating a
Further, they claim that they have not completed discovery
with CNX and thus are not able to fully address those issues.
Finally, the plaintiffs claim that they are not trying to make new
arguments but have maintained these claims throughout litigation
since Columbia’s motion to dismiss was filed and thus, CNX would
not be prejudiced by being reinstated as a defendant.
these arguments, the plaintiffs state that they would face manifest
First, this Court will not consider the plaintiffs’ argument
as to not having enough discovery to address issues against CNX
because this argument was not raised in their opposition brief to
CNX’s motion to dismiss.
See ECF No. 48.
Again, Rule 59(e)
motions cannot be used to make arguments that could have been made
before the judgment was entered by this Court. Pacific Ins. Co. v.
Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
because this argument was not made before this Court entered
judgment dismissing CNX, the plaintiffs cannot raise it here.
Second, this Court agrees with CNX that the plaintiffs have
not made a claim that would require this Court to reconsider its
order dismissing CNX as a defendant.
To reiterate, a motion to
amend or alter judgment may be granted (1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of
law or prevent manifest injustice.
Based on the plaintiffs’
supporting brief, this Court finds that the plaintiffs are couching
their motion to alter or amend on the third prong listed above.
However, the plaintiffs have not shown that this Court was in clear
error of the law or that manifest injustice will be prevented by a
reconsideration of the dismissal of CNX.
In considering CNX’s motion to dismiss, this Court considered
the plaintiffs’ negligence claims, both statutory and common law,
The plaintiffs claim that they relied on this Court’s
dismiss and in the order denying Columbia’s motion to dismiss and
granting Columbia’s motion for a more definite statement in the
alternative, and that those statements led them to not further
address their common law negligence claims.
This Court stated at
the conference and in its order granting the motion for a more
definite statement that “the plaintiffs’ more definite statement
should include more succinct allegations against each of the
contribution to the plaintiffs’ claimed injuries.” ECF No. 45 *11.
This directive clearly states that the plaintiffs should have
addressed all claims more succinctly against each defendant and
made it more clear to the Court what each defendant did in relation
to the plaintiffs’ claimed injuries–which includes the allegation
that a defendant owes a duty to the plaintiffs.
argument fails and does not show that the Court was in clear error
or that the plaintiffs will face manifest injustice if CNX is
dismissed as a defendant.
Further, the plaintiffs cannot make a valid argument as to the
Court’s dismissal of their statutory negligence claims against CNX.
As a matter of fact, the Court notes that the plaintiffs have
conceded in their motion to alter or amend judgment that this
Court’s dismissal of the statutory negligence claims was correct.
Consequently, the plaintiffs’ motion to alter or amend judgment is
Motion for Leave to Amend Complaint
Before addressing the motion, this Court finds that the motion
for leave to amend the complaint is denied as moot as to CNX based
on the findings above.
Thus, the Court will not address CNX’s
opposing arguments to the motion.
Further, following the same
reasoning, the Court will not consider Exhibit A to the motion to
The plaintiffs filed a motion to amend within the deadline
provided by the amended scheduling order.
In their motion to
amend, the plaintiffs claim that they should be allowed to clarify
their negligence claim against all defendants and that such an
amendment will not cause undue delay or any undue prejudice to the
defendants because they already have notice of the negligence
The plaintiffs have attached two versions of an amended
As stated previously, this Court is only considering
the exhibit which does not include CNX, Exhibit B.
See ECF No. 62.
Columbia contends that the plaintiffs should not be allowed to
amend their complaint because those claims they wish to clarify
have already been dismissed against CNX.
Thus, Columbia asserts
that the same principles applied in dismissing CNX should be
applied to this motion and therefore any clarification made by the
plaintiffs would be futile.
Although futility of the amendment is a valid reason to deny
a motion to amend, this Court must also consider the fact that
requests for such leave should be granted “freely . . . when
justice so requires” if futility is not apparent.
371 U.S. 178, 182 (1962); Fed. R. Civ. P. 15(a)(2).
Foman v. Davis,
This Court has
compared the original complaint with Exhibit B and finds that there
are differences in the plaintiffs’ claims for negligence in those
Further, the amended complaint, although not very
clear, provides for a duty that is owed by Columbia that could
possibly be couched in a common law duty rather than a statutory
Additionally, although Columbia makes an argument that this
dismissing CNX on similar claims made by the plaintiffs, the Court
notes that the standard used for a motion to dismiss is different
from that applied to a Rule 15 motion.
Although a motion to
dismiss should be granted sparingly and thus is similar to the
standard for denying a Rule 15 motion, Teamsters Local Union No.
171 v. Keal Driveaway Co., 173 F.3d 915, 918 (4th Cir. 1999), Rule
15 provides that permission to amend should be given freely and
only denied in rare circumstances. The differences in the two thus
account for the decision that this Court must make in granting the
plaintiffs’ motion to amend and the decision this Court made in
granting CNX’s motion to dismiss.
Consequently, because Rule 15 counsels against denying a
motion to amend, and there is no apparent futility with the
plaintiffs’ negligence claims against Columbia, this Court must
grant the plaintiffs’ motion to amend their complaint.1
For the reasons stated above, the plaintiffs’ motion for leave
to amend is hereby DENIED.
Further, the plaintiffs’ motion to
alter or amend judgment is DENIED IN PART AS MOOT as it pertains to
CNX and GRANTED IN PART.
Accordingly, the Clerk of Court is
DIRECTED to file Exhibit B to the plaintiffs’ motion to amend (ECF
No. 62) as plaintiffs’ second amended complaint.
The Court notes that the parties filed a stipulation of
discontinuance of plaintiffs’ Count II against Columbia on December
2, 2013. ECF No. 91. Because the plaintiffs’ amended complaint
will displace the complaint that the stipulation applied to, the
parties are hereby noticed that in order to discontinue Count II,
they would need to take further action.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
December 6, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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