Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-0413 (BNB) M.D. MARK, INC., Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants.

D EFENDANTS ' O PPOSITION TO P LAINTIFF ' S M OTION S EEKING L EAVE TO P RESENT T ESTIMONY AT S UMMARY J UDGMENT H EARING
Defendants Kerr-McGee Corporation and Oryx Energy Company ("Oryx" or, collectively, "Kerr-McGee") 1 respectfully submit this opposition to Plaintiff's motion, premised upon Fed. R. Civ. P. 43(e), to present testimony at the July 27 summary judgment hearing by: (i) Marilyn Davies ("Davies"); (2) Robert Gray ("Gray"); and (3) John Moye ("Moye"). Plaintiff's motion should be denied.

L EGAL S TANDARD
1. Rule 43 permits the Court to entertain oral testimony at a summary

judgment hearing "[w]hen a motion is based on facts not appearing in the record." Fed. R. Civ. P. 43(e). However, the Tenth Circuit has cautioned that "oral testimony on summary judgment motions should be used sparingly and with great care. The purpose

Oryx ceased to exist on February 26, 1999, at which time it became Kerr-McGee as a result of a statutory corporate merger.

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of summary judgment, which is to provide quick resolution when there are no disputed issues of fact, would be compromised if the hearing permitted by Rule 43(e) became a preliminary trial." Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000). As the Tenth Circuit explained: Because of the nature of summary judgment motions, the taking of oral testimony poses problems: . . . Because the judge may not evaluate the credibility of the witnesses, the principal advantage of oral testimony is unavailable in hearings under Rule 43(e) on motions for summary judgment. . . . [In most circumstances] [o]ral testimony under Rule 43(e) will be redundant. . . . The litigants, their counsel, the witnesses, and the judge all will be the worse for the experience. One trial per case is enough. Rule 43(e) hearings on motions for summary judgment therefore should be rare. Id. at 1025 (citations omitted). Where there is "ample documentary evidence" in the record, and the proposed witnesses have "already been deposed," taking the "extraordinary" step of permitting testimony under Rule 43 at a summary judgment hearing is unwarranted and improper. Id. at 1026.

T HE C OURT S HOULD D ENY P LAINTIFF ' S R EQUEST T O S UPPLEMENT A 5Y EAR O LD R ECORD F EATURING 36 D EPOSITIONS , 125 R EQUESTS F OR P RODUCTION , 73 I NTERROGATORIES , & 12 R EQUESTS F OR A DMISSION
2. By its April 14, 2006 Order ("Order"), the Court set Kerr-McGee's

motions for summary judgment for oral argument on July 27, 2006. The Order set forth the Court's current thinking on the motions and identified issues for consideration at the hearing. 3. The Order did not invite the parties to supplement the record, which

closed in May 2004, nor should the Court permit further record development at this

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stage. Discovery commenced in September 2001 and closed in May 2004. During that time, the parties took 36 depositions (including of Gray, Moye, and Davies (3 times)), and served 125 document requests, 73 interrogatories, and 12 requests for admission. Plaintiff likewise served 3 expert reports, one for Gray, one for Moye, and one for Davies. 2 4. In its motion, Plaintiff claims that the Court would benefit from the

testimony of : (A) Moye "on the issue of law of Corporate Merger and Contract Interpretation." Pl's Mot. ¶ 2; (B) Gray to "address[] the Economic Loss Doctrine . . . [and] whether there exists a sufficient evidentiary basis," id. ¶ 3; and (C) Davies to "explain[] the fourth categories of data . . . and to clarify the chronology of the events." Id. ¶ 4. 5. What Plaintiffs fails to explain is why the Court needs any clarification on

these issues and why such information could not have been placed in the record at the time of summary judgment briefing, which occurred two years ago, with a full opportunity for both sides to support their respective positions from the voluminous record. Plaintiff's failure is particularly noteworthy in light of the fact that all three proposed witnesses were deposed. In fact, Davies was deposed 3 times and in January 2004, this Court struck her as an expert witness. Plaintiff had the opportunity to provide affidavits from these and other witnesses when it filed its summary judgment opposition. Permitting oral testimony will transform a straightforward hearing on

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This Court struck Davies as an expert. See January 23, 2004.

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summary judgment, for which a more-than-ample record exists, into a mini-trial based upon a three-year record that commenced 5 years ago. 6. Now, Plaintiff should not be allowed to use Rule 43(e) after the fact as a

mechanism to supplement the record "on the fly" at the summary judgment hearing. Rule 43(e), on its own terms, is designed for the situation in which the motion is based on "facts not appearing of record." That is not the case here, as the only pending summary judgment motions were filed by Kerr-McGee. 3 And as noted by the citations in each such motion, the motions were/are based entirely upon the record. Neither "motion is based on facts not appearing in the record," rendering Rule 43 seemingly inapplicable on its face. Fed. R. Civ. P. 43(e). 7. Moreover, the record in this case is voluminous. Here, as in the Seamons

case, there is "ample documentary evidence" in the record and, more importantly, each the proposed witnesses have "already been deposed." 206 F.3d at 1026. In fact, Davies has been deposed three times. Under these circumstances, oral testimony on summary judgment is a waste of time and, worse yet, runs the risk of obfuscating the issues and delaying expedient resolution. See id. (citing Stewart v. RCA Corp., 790 F.2d 625, 628 (7th Cir. 1986)). If plaintiff thought it needed more discovery or wanted to supplement the record, it should have applied for such relief at the time of briefing. 8. Plaintiff gives this Court no sound reason to depart from a conventional

hearing on summary judgment, as set forth in its Order.

By its June 15 and July 14, 2004 Orders, the Court (through its Special Master) denied Plaintiff the opportunity to file dispositive motions in this case.

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Plaintiff's motion should be DENIED. Dated June 19, 2006. Respectfully submitted,

s/Gregory E. Goldberg____________________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 A TTORNEYS F OR D EFENDANTS

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C ERTIFICATE O F S ERVICE
I hereby certify that, on June 19, 2006, I electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] Harlan P. Pelz, Esq. Dan Bonifazi, Esq. Pelz & Associates 1873 S. Bellaire Street, Suite 1401 Denver, CO 80222

s/ Gregory E. Goldberg ________________ H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8000 Fax: (303) 295-8261 A TTORNEYS F OR D EFENDANTS
3566030_3.DOC

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