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Enron Mail |
Concededly unencumbered by research, I have the following preliminary
thoughts, some of which already had been expressed by David: 1. In the context of a Rule 9 (b) motion, ordinarily the case is not dismissed. If the motion is granted, the plaintiff is usually given 20 or 30 days to replead. The case remains on the docket. I think that's what happened on the first 9(b) conspiracy motion in the Lufkin oil case. While it is possible to obtain a Rule 9(b) dismissal with prejudice, that is unlikely here in the Wright case. Truth be told, I think that Downes could give even Grynberg one more chance to replead. 2. Also, the government has already intervened in part in the Wright case. So even a dismissal of the relator's claims would leave the case in Judge Downes' court. Wright would have to move to sever, seek some type of Rule 54 (b) relief, or file some other motion to get out from under the existing case -- short of filing a whole new lawsuit. 3. Filing a new lawsuit creates limitations problems of all kinds for him. At a minimum, he would lose more than four years of claims. 4. A new lawsuit has "first to file" problems. Grynberg and Osterhoudt would be ahead of him as to some claims. Also, remember the Perry case. It was transferred from New Mexico to Lufkin only recently, the MDL tag-along notice was filed even more recently, and the case is not yet in Downes' court. Perry is apparently a relatively attractive relator who actually has some first hand knowledge (at least as to Burlington). But the government apparently decided to stick with Wright because he was so far ahead of Perry. Hosie likely would be aware of the risk of the government reconsidering the decision if Wright had to start all over. 5. A new complaint has obvious public disclosure and original source problems for Wright. He would be starting all over filing material evidence when the government already has complaints on file. 6. Even if everything in Judy's hypothetical happened, there still would some non-measurement issues in Downes' court. The transportation allowance and condensate claims (there may be one other) are not covered by the government's motion to dismiss in the Grynberg case. Thus, there would still be an argument in support of MDLing a new case. A less strong argument, I recognize. 7. Filing a new suit would be a high risk tactical move which likely would anger Downes, the MDL Panel, and perhaps even Hannah. 8. I do not favor a Rule 12(e) motion for a more definite statement. The case law is much different than under 9(b), or even 8(a). Also, I believe that it shows weakness. 9. In short, I don't see a great risk of filing a Rule 9(b) motion. However, what this points out (and thanks for flagging it) is that we must be continually alert not to do anything now or later that would allow Wright or the government to go to Downes and ask him to transfer the case back to Lufkin. While they can always file such a motion based on the boilerplate language in the MDL order, we should not say anything that will make the Wright allegations seem so different from the Grynberg and Quinque allegations that such motion might be taken seriously by Downes. FINALLY, SORRY FOR THE LENGTH OF THIS E-MAIL. -----Original Message----- From: Judith.Matlock@dgslaw.com [mailto:Judith.Matlock@dgslaw.com] Sent: Wednesday, October 25, 2000 3:26 PM To: steve_williams@eogresources.com; apickens@gibbs-bruns.com; breasoner@gibbs-bruns.com; mbeatty@beattylaw.com; ctetrault@velaw.com; david_zott@chicago.kirkland.com Subject: Back to East Texas? Steve Williams has asked the question of whether Wright and the US could get back to East Texas if (i) Judge Downes grants the Wright defendants' Motion to Dismiss for Failure to Plead Fraud With Particularity but gives Wright leave to amend, (ii) Judge Downes dismisses Grynberg with prejudice (since this is Grynberg II and he has already had a second chance), and (iii) after (ii), Wright, instead of amending in Wyoming, simply files a new complaint in East Texas (with no pending Grynberg complaint to MDL him back to Wyoming). We are looking into this question and thought you might want to as well. Are defendants able to get a dismissal with prejudice if a plaintiff who has been granted leave to amend chooses not to amend? Would a better course of proceeding be to file a Motion for a more definite statement for failure to plead fraud with particularity so that the relief granted would be an order to plead more definitely rather than an order granting dismissal (with leave to amend). If Wright then did not plead with particularity, a motion to dismiss with prejudice or even a motion for judgment o the pleadings could be filed. Your thoughts would be appreciated. - C.DTF
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