Fout v. EQT Production Company

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JOHN FOUT, NANCY FOUT,

J&N MANAGEMENT, LLC and

J&N MANAGEMENT ENTERPRISES, LLC,

Plaintiffs,

v. Civil Action No. 1:15CV68

(STAMP)

EQT PRODUCTION COMPANY,

a Pennsylvania corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFFS’ MOTION TO ALTER JUDGMENT

I. Background

Following the jury trial of this civil action, the plaintiffs

have filed a motion to alter judgment pursuant to Federal Rule of

Civil Procedure 60.1 ECF No. 181. The plaintiffs argue that the

judgment should be altered or amended for the following reasons:

(1) the defendant, EQT Production Company (“EQT”), has a written

policy dealing with the deductions, which is a contradiction to and

misrepresents the oral policy, thereby prejudicing the plaintiffs;

and (2) in order to comply with the laws of West Virginia,

specifically West Virginia Code § 22-6-8, the written policy of EQT

should be followed. Id. at 5-9. The plaintiffs cite Kay Co., LLC

v. EQT Production, Civil Action No. 1:13-CV-151, and request that

1The plaintiffs do not specify which part of Federal Rule of

Civil Procedure 60 pursuant to which they file their motion to

alter judgment.

this Court “restore[] [ ] their correct rental payments.” Id.

at 6, 9.

The defendant filed a response in opposition to the motion, in

which it asserts that the plaintiffs are simply dissatisfied with

the jury’s verdict in this case and that they are barred by the

doctrine of res judicata from joining the class and class

settlement in Kay Co. ECF No. 183 at 3. The defendant cites the

United States Court of Appeals for the Fourth Circuit, explaining

that a Rule 60(b)(3) motion should be granted if: “(1) the moving

party has a meritorious defense; (2) the misconduct is proved by

clear and convincing evidence; and (3) the misconduct prevented the

moving party from fully presenting its case.” Columbia

Communications Corp. v. EchoStar Satellite Corp., 2 F. App’x 360,

366 (4th Cir. 2001) (citing Shultz v. Butcher, 24 F.3d 626, 630

(4th Cir. 1994). Id. at 4. The defendant asserts that the

plaintiffs do not meet any of these prongs. Id. at 4-5.

The plaintiffs did not file a reply to the defendant’s

response in opposition.

II. Discussion

Because the plaintiffs have not filed their motion or attached

memorandum pursuant to a particular part of Federal Rule of Civil

Procedure 60, this Court will proceed to analyze the plaintiffs’

motion under each part of Federal Rule of Civil Procedure 60.

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A. Rule 60(a)

Federal Rule of Civil Procedure 60(a) provides that a court

“may correct clerical mistakes or mistakes arising from oversight

or omission.” Fed. R. Civ. P. 60(a); see also Am. Trucking Ass’ns

v. Frisco Transp. Co., 358 U.S. 133, 145, 79 S. Ct. 170, 177, 3

L.Ed.2d 172, 26 P.U.R.3d 527 (1958) (“It is axiomatic that courts

have the power and the duty to correct judgments which contain

clerical errors or judgments which have issued due to inadvertence

or mistake.”). “[T]he scope of a court’s authority under Rule

60(a) to make corrections to an order or judgment is circumscribed

by the court’s intent when it issued the order or judgment.”

Sartin v. McNair Law Firm PA, 756 F.3d 259, 266 (4th Cir. 2014).

Plaintiffs have failed to identify any clerical mistake or

correction necessary to conform the judgment to the Court’s intent.

Therefore, any request for relief under Rule 60(a) is denied.

B. Rule 60(b)

Federal Rule of Civil Procedure 60(b) provides that a court

may, upon motion or upon such terms as are just, relieve a party

from a final judgment, order, or proceeding for one of 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

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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). “The extraordinary remedy of Rule 60(b) is

only to be granted in exceptional circumstances.” Wilson v.

Thompson, No. 04-1099, 2005 WL 1607760, at *1 (4th Cir. July 11,

2005) (unpublished) (citing Compton v. Alton S.S. Co., 608 F.2d 96,

102 (4th Cir. 1979).

1. Rule 60(b)(1)

“To obtain relief under [ ] Rule [60(b)(1)], a party must

demonstrate[, among other things,] that he was not at fault and

that the nonmoving party will not be prejudiced by the relief from

the judgment.” Home Port Rentals, Inc. v. Ruben, 957, F.2d 126,

132 (4th Cir. 1992). Moreover, “when a party is blameless, his

attorney’s negligence qualifies as a ‘mistake’ or as ‘excusable

neglect’ under Rule 60(b)(1).” Augusta Fiberglass Coatings, Inc.

v. Fodor Contracting, 843 F.2d 808, 811 (4th Cir. 1988). “When the

party is at fault, the [judicial system’s need for finality and

efficiency in litigation] dominate[s] and the party must adequately

defend its conduct in order to show excusable neglect.” Id.

Plaintiffs have not alleged any “mistake, inadvertence,

surprise, or excusable neglect[,]” that would warrant the

extraordinary remedy of Rule 60(b). Therefore, any request for

relief under Rule 60(b)(1) is denied.

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2. Rule 60(b)(2)

A party seeking relief under Rule 60(b)(2) must demonstrate

that the “newly discovered evidence” was “of such a material and

controlling as [would] probably [have] changed the outcome.”

Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994) (alteration in

original; internal quotation marks omitted).

The plaintiffs have failed to show that any newly discovered

evidence is present in this case. The plaintiffs reference Kay Co.

and West Virginia Code § 22-6-8. First, even if this Court were to

construe the settlement as “evidence” for purposes of Rule

60(b)(2), the defendant correctly notes that the terms of the Kay

Co. class settlement reflect a settlement of claims negotiated

after litigation between the parties to that case. Specifically,

the plaintiffs have failed to demonstrate how the Kay Co.

settlement is evidence that would probably have changed the outcome

in this case. Second, to the extent that plaintiffs assert that

the modification of West Virginia Code § 22-6-8 entitles the

plaintiffs to relief under Rule 60(b), this Court will consider

that argument in the sections of this memorandum opinion and order

that discusses potential relief under Rule 60(b)(5) or (b)(6). See

Atwell v. Equifax, Inc., 86 Fed. R. Serv. 2d 1209 (D. Md. May 6,

1980) (“A petition to vacate a judgment based on a change in law is

normally considered under either (b)(5) or (b)(6) of Rule 60”).

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3. Rule 60(b)(3)

There are three factors that a moving party must establish in

order to prevail on a Rule 60(b)(3) motion:

(1) the moving party must have a meritorious defense; (2)

the moving party must prove misconduct by clear and

convincing evidence; and (3) the misconduct prevented the

moving party from fully presenting its case.

Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994).

As defendant correctly notes, the plaintiffs are restating the

merits of the claims and arguments that were previously rejected.

See ECF No. 183 at 4. Further, the plaintiffs have not alleged

misconduct by the defendant. Therefore, the plaintiffs are not

entitled to relief under Rule 60(b)(3).

4. Rule 60(b)(4)

As the Fourth Circuit explained, “[a] judgment is not ‘void’

under Rule 60(b)(4) merely because it is erroneous.” Cromer v.

Kraft Foods North Am., 390 F.3d 812, 817 (4th Cir. 2004); see also

Baumlin & Ernst, Ltd., 637 F.2d 238, 242 (4th Cir. 1980) (“The

judgment, therefore, may, at most, have been erroneous, but any

error, if it indeed existed, could have been attacked on appeal.

Error, however, does not make the judgment void and, therefore,

Fed. R. Civ. P. 60(b)(4) is inapplicable.”). A judgment is “void

only if the court that rendered it lacked jurisdiction of the

subject matter, or of the parties, or if it acted in a manner

inconsistent with due process of law.” Eberhardt v. Integrated

Design & Constr., 167 F.3d 861, 871 (4th Cir. 1999) (quoting

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Schwartz, 976 F.2d at 217); see also United Student Aid Funds, Inc.

v. Espinosa, 559 U.S. 260, 271 (2010) (“Federal courts considering

Rule 60(b)(4) motions that assert a judgment is void of a

jurisdictional defect generally have reserved relief only for the

exceptional case in which the court that rendered judgment lacked

even an arguable basis for jurisdiction.”) (internal quotation

marks omitted). A court should “narrowly construe the concept of

a ‘void’ order under Rule 60(b)(4) . . . because of the threat to

finality of judgments and the risk that litigants . . . will use

Rule 60(b)(4) to circumvent an appeal process they elected not to

follow.” Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005); see

also Girardi v. Heep, 203 F.3d 820 (Table), 2000 WL 1287, at *2

(4th Cir. Dec. 30, 1999) (“Finality concerns and the danger that

litigants will use motions under Rule 60(b)(4) to eschew the

appellate process require that we narrowly construe the concept of

a void judgment.”). Therefore, relief under a Rule 60(b)(4) motion

is “an extraordinary remedy.” Garcia Fin. Group, Inc. v. Virginia

Accelerators Corp., 3 F. App’x 86, 88 (4th Cir. 2001).

Here, this Court clearly had more than an arguable basis for

exercising jurisdiction. Moreover, the plaintiffs do not allege

that this Court acted inconsistent with due process of law. Lastly,

the plaintiffs chose not to appeal this civil action to the Fourth

Circuit Court of Appeals. Therefore, to the extent that plaintiffs’

motion seeks relief under Rule 60(b)(4), such relief is denied.

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5. Rule 60(b)(5)

Subsection (b)(5)of Rule 60 provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud, etc. On motion and upon such

terms as are just, the court may relieve a party or his

legal representative from a final judgment, order, or

proceeding for the following reasons:

. . .

(5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have

prospective application.

Fed. R. Civ. P. 60(b)(5).

Plaintiffs do not specify which of the particular grounds

under Rule 60(b)(5) should apply to this case. However, this Court

finds, and as the defendant correctly notes, none of the grounds,

i.e. “the judgment has been satisfied, released, or discharged, or

a prior judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the judgment

should have prospective application[,]” apply. Plaintiffs

reference Kay Co. and a modification in West Virginia Code

§ 22-6-8. First, as the defendant correctly notes, the terms of the

Kay Co. class settlement do not establish any policy. Second, even

if this Court were to construe the plaintiffs’ references to the

Kay Co. settlement and West Virginia Code § 22-6-8 as assertions

that there has been a change in law or a change in judicial view of

the applicable law, such changes, after a final judgment, are not

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bases for vacating a judgment entered before announcement of such

changes. See Wright & Miller, supra § 2863, at 204; Nunnery v.

Barber, 23 Fed. R. Serv. 2d 232 (4th Cir. 1977); 7 Moore’s Federal

Practice 60.23(3) at 325; Comment, Pierce v. Cook & Co.: Change in

State Law as a Ground for Relief from a Federal Judgment, 124 U.

Pa. L. Rev. 843, 850 (1976); see also Atwell v. Equifax, Inc., 29

Fed. R. Serv. 2d 1209 (D. Md. May 6, 1980) (“The weight of

authority in the Fourth Circuit and in other circuits is that a

change in a rule of law is insufficient to warrant reopening a

final judgment.”); Schwartz v. U.S., 129 F.R.D. 117, 121 (D. Md.

Jan. 25, 1990) (“It is thus the settled rule that a change in the

judicial view of the applicable law, after a final judgment, is not

a basis for vacating a judgment entered before announcement of the

change.”) (internal quotation marks omitted).

6. Rule 60(b)(6)

Subsection (b)(6) of Rule 60 allows a court to grant Rule

60(b) relief for “any other reason justifying relief from the

operation of the judgment.” Fed. R. Civ. P. 60(b)(6). “[C]lause

(6) and the first five clauses are mutually exclusive and [ ]

relief cannot be had under clause (6) if it would have been

available under the earlier clauses.” 11 C. Wright & A. Miller,

Federal Practice and Procedure: Civil, § 2864 (1973). “[T]he

language of the ‘other reason’ clause, for all reasons except the

five particularly specified, vests power in courts adequate to

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enable them to vacate judgments whenever such action is appropriate

to accomplish justice.” Klapprot v. United States, 335 U.S. 601,

614-15, 69 S. Ct. 384, 390-91, 93 L.Ed. 266 (1949).

The consequences resulting from a conscious decision regarding

the process of litigation is not covered by Rule 60(b)(6). See

Schwartz, 129 F.R.D. at 121 (“[I]f a party makes a free and

conscious choice regarding the conduct of litigation, he cannot be

granted relief under Rule 60(b)(6) from the consequences of that

decision.”); see also Ackermann v. United States, 340 U.S. 193, 196

71 S. Ct. 209, 211 95 L.Ed. 207 (1950).

Plaintiffs, here, made a conscious decision in stipulating,

and thereby narrowing the issue to be decided at trial.

Specifically, the parties stipulated that the “sole remaining issue

is the reasonableness of the post-production expenses actually

incurred by the lessee.” ECF No. 43 at 1. The plaintiffs have not

shown “exceptional” circumstances that would justify relief under

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subsection (6).2 Therefore, to the extent plaintiffs’ motion seeks

relief under Rule 60(b)(6), such relief is denied.

III. Conclusion

For the reasons described above, plaintiffs’ Rule 60(b) motion

to alter judgment (ECF No. 181) is DENIED.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein.

DATED: August 5, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

2This Court notes, as explained in Securities and Exchange

Commission v. Tsao, 317 F.R.D. 31, 36 n. 2 (D. Md. Apr. 4, 2016)

that:

[t]he ‘exceptional’ or ‘extraordinary’ circumstances

requirement is sometimes framed as a prerequisite to Rule

60(b) relief in general, and sometimes more narrowly

described as an element of the Rule 60(b)(6) catchall.

Compare Werner v. Carbo, 731 F.2d 204, 206–07 (4th Cir.

1984) (“To bring himself within Rule 60(b), the movant

must make a showing of . . . exceptional circumstances”)

with Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011)

(requiring “extraordinary circumstances” for applications

of subsection (6) in particular).

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