Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 10/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S MOTION TO AMEND THE JUDGMENT PURSUANT TO F.R.C.P. 59(e) ______________________________________________________________________________ Plaintiff, M.D. Mark, Inc. ("MD MARK"), respectfully motions this Court to amend the Judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) to add the separate awards of the jurors and by adding interest on the judgment. CERTIFICATION PURSUANT TO LOCAL RULE 7.1A Counsel for Plaintiff has conferred with counsel for Defendants, Marie R. Yeates, Esq., regarding the filing of this motion. Counsel for Defendants objects to the relief requested herein. INTRODUCTION On Friday, September 28, 2007, the jury returned verdicts in favor of M.D. Mark, Inc against Defendants, Kerr-McGee Corporation and Oryx Energy Company. On the first claim, the jury was asked to determine whether Oryx breached license agreements. The jury found that Oryx breached its license agreements when it transferred the license agreements to Kerr-McGee

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Corp. without prior approval and awarded damages of $15,745,000.00. On the second claim, the jury was asked to determine whether Kerr-McGee Corporation breached license agreements. The jury found that Kerr-McGee Corp breached its license agreements when it transferred license agreements to Kerr-McGee Oil & Gas without prior consent and by not returning all the data and not safe guarding M.D. Mark's trade secrets. The jury awarded $968,750.00 on that claim. On the third claim, the jury was asked to determine whether Kerr-McGee misappropriated M.D. Mark's trade secrets. The jury found that Kerr-McGee gained access to and possessed PGI Data through improper means and determined that it gained access to the PGI Data through improper means in 1996 when the PGI Data was shipped to MidCon Data Services from KerrMcGee Offices in Houston. The jury also determined that Kerr-McGee wrongfully transferred control of the PGI Data from a wholly owned subsidiary of Oryx to a subsidiary of Kerr-McGee Corporation. The jury awarded $25,266,381.00 on this claim. The Court then ordered that Judgment be entered in favor of Plaintiff, M.D. Mark, Inc. against Defendants, Kerr-McGee Corporation and Oryx Energy Company in the amount of $25,266,381.00 instead of adding the awards for each separate claim. ARGUMENT (Separate wrongful conduct by Defendants) Each claim is separate and distinct and the jury awards for each claim should be added together. In the first claim, the jurors were asked to determine whether Oryx Energy Company breached the license agreements. The jurors determined that Oryx breached the license

agreements by transferring the license agreements to Kerr-McGee Corporation without consent and awarded $15,745,000.00 as damages. 2

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In the second claim, the jurors were asked to determine whether Kerr-McGee Corporation breached the license agreements. The jurors determined that Kerr-McGee

Corporation breached the license agreements by transferring license agreements to Kerr McGee Oil & Gas without prior consent. The jurors further determined that all data was not returned and trade secrets were not safeguarded and awarded $968,750.00 on that claim. In the third claim, the jurors were asked to determine whether Kerr-McGee Corporation gained access to and possessed PGI Data through improper means. The jurors determined in the affirmative and further determined that Kerr-McGee improperly gained access to and possessed the PGI data in 1996 when it was shipped to MidCon Data from Kerr-McGee offices in Houston. The jurors also determined that Kerr McGee wrongfully transferred control of the PGI Data from Oryx or any wholly owned subsidiary of Oryx to a subsidiary of Kerr-McGee Corporation. Thus the misappropriation of trade secrets claim relates to different and distinct conduct of KerrMcGee Corporation and separate PGI Data which do not relate to the first and second awards. The first award dealt with the transfer from Oryx to Kerr-McGee Corporation, the second award dealt with the transfer of the PGI Data licensed by Kerr-McGee Corporation to Kerr-McGee Oil and Gas Corporation and the third award dealt with bootlegged seismic data and transfers from Kerr-McGee Corporation to one of its subsidiaries. Thus, the damages awarded by the jury on the third claim does not include the awards on the first two claims and does not constitute a multiple recovery as contemplated by instruction 3.8. The first breach of contracts was the wrongful acts of Oryx Energy Company in transfer of the PGI Data license agreements to KerrMcGee Corporation by Oryx Energy Company without consent. The damages for this breach are different from the breach of contracts by Kerr-McGee Corporation and these damages are 3

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different than the damages for misappropriation of trade secrets. The judgment should be for $41,980,131.00 plus interest from the time of the wrongdoing. Interest on Judgment In addition to the damages awarded to M.D. Mark, Inc by the jury, M.D. Mark is also entitled to interest on the awards. Under Colorado law, pre-judgment interest in non-personal injury actions is available "at the rate of eight (8%) percent per annum compounded annually for all monies or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered whichever first occurs." Colo. Rev. Stat. §5-12-102 (1)(b). In this case, the property is the PGI Data. A federal court sitting in diversity applies state law, not federal law, regarding the issue of pre-judgment interest. Atlantic Richfield Company v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1156 (10th Cir. 2000). The Colorado Supreme Court in Mesa Sand and Gravel Company v. Landfill, Inc., 776 P.2d 362, 363-366 (Colo. 1989) cited a portion of §5-12-102's legislative history indicating that the legislature intending prevailing parties to recover pre-judgment interest from the time of the wrong Estate of Korf v. A.O. Smith Harvestore Prod., Inc., 917 F.2d 480, 486 (10th Cir. 1990). The wrongs were either the wrongful transfers of PGI Data, the wrongful withholding of PGI Data, the wrongful acquisition of PGI Data and the wrongful loss of PGI Data. Prejudgment interest is awarded in property damage cases from the date the injured party was wronged. Fed. Ins. Co. v. Ferrellgas, Inc., 961 P. 2d 511,514 (Colo. Ct. App. 1997). Section 5-12-102 is to be liberally construed to permit recovery of prejudgment interest Loughridge v. Chiles Power Supply Co. Inc., 431 F.3d 1268.

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In this case, in the first claim, the jurors determined that the defendant Oryx breached the contracts relating to the PGI Data agreements when it transferred the license agreements to KerrMcGee Corp. without prior approval. Kerr-McGee refused to return the PGI Data to M.D. Mark, Inc. at the time of the merger when Carlos Salazar wrote to M.D. Mark and told it that KerrMcGee was keeping the PGI Data. That date is April 8, 1999 (Plaintiff's Exhibit 124). Interest on the award of $15,745,000 from that date at eight (8%) percent per annum compounded annually is $14,563612.01 for a total of $30,308,612.01. In the second claim, the jurors determined that the defendant Kerr-McGee Corporation breached the contracts relating to the PGI Data when it transferred the licenses Kerr-McGee entered into to Kerr-McGee Oil & Gas, when it failed to return the data and failed to safeguard the trade secrets. That date is approximately the same date as in the first claim. Interest on the award of $968,750.00 from the same date at eight (8%) percent per annum compounded annually is $896,062.19 for a total of $1,864,812.19. In the third claim, the jurors determined that the defendant Kerr-McGee Corporation misappropriated M.D. Mark's trade secrets in 1996. The exact date is unknown but M.D. Mark is entitled to interest at eight (8%) percent per annum compounded annually commencing January 1, 1997 at the latest. Interest on the award of $25,266,381.00 at eight (8%) percent per annum compounded annually is $32,554,733.82 for a total of $57,821,114.82. CONCLUSION For the reasons stated above, M.D. Mark, Inc. respectfully requests the Court amend the Judgment against Kerr-McGee Corporation, pursuant to Fed.R.Civ.P. 59 (e) to $41,980,131.00

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and to add interest at 8% compounded annually as provided by law for a total judgment of $89,994,539.02. DATED: October 5, 2007. Respectfully submitted, PELZ & ASSOCIATES, P.C. s/ Harlan P. Pelz Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on the 5th day of October, 2007, a true and correct copy of the foregoing PLAINTIFF'S MOTION TO AMEND THE JUDGMENT PURSUANT TO FRCP 59(e) was faxed and placed in the United States Mail, postage prepaid, addressed as follows: M. Antonio Gallegos, Esq. Scott S. Barker, Esq. Gregory E. Goldberg, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 303-295-8261 Fax

s/ Allison E. Goldstein Allison E. Goldstein 6