United States District Court, W.D. Oklahoma
JAMES BLOCKER and JAMI BLOCKER, husband and wife, et al., Plaintiffs,
CONOCOPHILLIPS COMPANY, Defendant.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
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 [Doc. No. 68]. The matter is fully briefed
and at issue.
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
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.
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].
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.
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
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).
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.
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].
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