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Blocker v. ConocoPhillips Co.

United States District Court, W.D. Oklahoma

May 22, 2018

JAMES BLOCKER and JAMI BLOCKER, husband and wife, et al., Plaintiffs,



         Before the Court is Defendant's Motion to Reconsider Prior Order [Doc. No. 48] and Reopen Limited Fact Discovery and Brief in Support [Doc. No. 54]. Plaintiffs timely responded in opposition [Doc. No. 67], and Defendant filed a reply[1] [Doc. No. 68]. The matter is fully briefed and at issue.


         On January 19, 2018, Defendant filed notices with the Court, indicating Defendant's intention to serve subpoenas on eight non-parties [Doc. Nos. 31-38]. The eight subpoenas directed the recipients to produce records by February 7, 2018. However, the Court's July 7, 2017 Scheduling Order [Doc. No. 17] directed discovery to be completed by February 1, 2018.

         On January 25, 2018, Plaintiffs filed their motion to preclude service of the subpoenas [Doc. No. 39], asserting that the production requested was overly broad and required production after the discovery cutoff date. The Court ordered Defendant to file an expedited response [Doc. No. 40]. Defendant filed a response on January 30, 2018 [Doc. No. 41], but did not request an extension of the discovery period.

         On January 31, 2018, Plaintiffs filed a reply [Doc. No. 42]. The Court entered an Order on January 31, 2018 [Doc. No. 43], acknowledging that the requested document production could not occur without an extension of the discovery period. On February 1, 2018, Defendant filed an opposed motion to extend the discovery period until March 1, 2018 [Doc. No. 44].

         On February 8, 2018, the Court granted Plaintiffs' motion to preclude service of the subpoenas [Doc. No. 48]. The Court concluded that Defendant had “not shown an adequate explanation for the delay in issuing the subpoenas, or a compelling reason to extend discovery.” [Doc. No. 48 at 6]. Although Defendant argued the subpoenas were prompted by the deposition testimony of Plaintiff Brian Wehr on January 15, 2018, the Court found that Plaintiff Wehr's meeting with realtors was disclosed to Defendant in written discovery responses on October 26, 2017 - three months prior to Plaintiff Wehr's deposition. [Doc. No. 48 at 4]. Further, both agents to the sales transaction - Darren Webb and Carlene Rupp - were identified in a document produced to Defendant on or about August 3, 2017. Id. Moreover, the Court concluded the subpoena requests were “overly broad and not limited to disclosures about water issues.” Id. at 5.

         Defendant now asks the Court to revisit its ruling. Specifically, Defendant asserts that Plaintiffs' expert report from appraiser Jim Artman, which contains opinions about home values, puts the disclosures in “stark focus.” Further, Defendant contends that Plaintiffs were not forthcoming during written discovery about their conversations with realtors and attorneys during the sale of their homes.


         The Federal Rules of Civil Procedure do not recognize a motion to reconsider. Computerized Thermal Imaging, Inc., v. Bloomberg, L.P., 312 F.3d 1292, 1296 n. 3 (10thCir. 2002). The Court construes such motions as filed pursuant to Rule 59(e) (motions to alter or amend a judgment) or Rule 60(b) (relief from a final judgment, order, or proceeding), depending on the asserted justification for, and timing of, the motion. Id. Under Rule 59(e), “[g]rounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

         Where, as here, the motion is filed beyond the deadline set forth in Rule 59(e), a motion to reconsider is generally analyzed under the requirements of Fed.R.Civ.P. 60(b). Hatfield v. Bd. of County Comm'rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional circumstances.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006). “A litigant demonstrates exceptional circumstances by satisfying at least one of Rule 60(b)'s six grounds for relief[, ]” including mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or fraud. Id. A motion to reconsider should not be used to revisit issues already addressed or to advance arguments that could have been raised earlier. Servants of Paraclete, 204 F.3d at 1012.


         Defendant asserts that “substantial new evidence” exists justifying its renewed request for subpoenas to third party realtors. The Court disagrees. Nothing changes the fact that Defendant knew as early as October 2017 that disclosures about water issues were made during home sales. Plaintiff Wehr stated in his written discovery responses dated October 26, 2017, that he, his realtor, and the seller's realtor had a disclosure meeting. [Doc. No. 41-3 at 9-10, 28]. Specifically, he disclosed that “[i]t was brought to [his] attention that some of the water[] wells in the front of the neighborhood near 178th Street had some issues (five cases, chloride in water, and over an oilfield).” Id. at 10. Further, Mr. Kerns testified in his November 7, 2017 deposition that his real estate agent disclosed the lawsuit against Defendant and the water issues to the Wehrs before they sold them the home. [Doc. No. 41-5 at 26].

         Defendant's reliance on Plaintiffs' supplemental discovery responses after the discovery cutoff is not persuasive. Defendant concedes that the Bolding Plaintiffs produced a disclosure to Defendant on November 3, 2017. [Doc. No. 68 at 7]. This reaffirms that Defendant had knowledge in early November 2017 that sellers had disclosed water issues. Although the Boldings revised the disclosure after they re-listed their home for sale in early 2018, Defendant concedes the ...

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