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Enron Mail |
We have considered, discussed, and researched the issue of whether, by
"substituting named plaintiffs" instead of simply designating some of the 80+ individual plaintiffs as class reps, plaintiffs' attorneys effectively nonsuited all but the three named plaintiffs, and thus whether they must re-add them to pursue their claims individually. Our conclusion was that the substitution was probably tantamount to a nonsuit, and that the plaintiffs would have to be re-added. While considering potential trial on the merits, however, I was reminded that Intratex filed a counterclaim in 1996, to effectively hold the lawsuit in Harris County. At the time, we had some concern that plaintiffs would nonsuit and refile in Midland, which they might perceive to be a friendlier forum, and a forum more scary to Enron, in light of the jury's verdict in the Conoco v. Northern case (a verdict subsequently overturned on appeal.) The question thus arises: does the presence of the counterclaim affect our original answer to the nonsuit question? The inquiry is actually somewhat circular: the First Amended Counterclaim, filed in April 1996, is against "Richard Beeson, Eclipse Oil & Gas, Inc., O'Neill Properties, Ltd., and all other plaintiffs in the above-style action...." Thus, if the other individual plaintiffs were effectively nonsuited, arguably they weren't counterclaimed against either. I wanted to call this to your attention, however. It bears noting that the answer to the nonsuit question does not, as of now, affect limitations on the non-class-rep plaintiffs' main claims, breach of contract and fraud, which are governed by a 4-year statute. That is because limitations as to all would-be class members is tolled from the time certification was sought until, at the earliest, it was reversed by the Supreme Court. Plaintiffs claimed they first learned of their claims in late September or October of 1994. They sought certification on February 16, 1996. If they were nonsuited, under general nonsuit law their claim would not be tolled during the pendency of their original individual lawsuit pre-certification (a year and 4 months). It is unclear how much tolling has occurred between March 9, 2000 and now. Did tolling resume as of the time plaintiffs moved to redefine class, or as of the later time when they filed their supplemental motion for certification? But evening assuming, for the sake of argument, that all tolling ceased as of the time the Texas Supreme Court reversed certification on March 9, 2000, only about another 7 months can be added to the year and 4 months. So limitations would not have run on the 4-year claims. (Plaintiffs are, however, cutting it close on their 2-year claims, such as negligence and negligence per se.)
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