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Abraham v. WPX Energy Production, LLC

United States District Court, D. New Mexico

September 30, 2017

STEVEN J. ABRAHAM, and H LIMITED PARTNERSHIP on behalf of themselves and others similarly situated, Plaintiffs,
v.
WPX ENERGY PRODUCTION, LLC, f/k/a WILLIAMS PRODUCTION COMPANY, LLC; WILLIAMS FOUR CORNERS, LLC; and WILLIAMS ENERGY RESOURCES, LLC, Defendants.

          Jake Eugene Gallegos Michael J. Condon Gallegos Law Firm, P.C. Santa Fe, New Mexico Attorneys for the Plaintiffs

          Sarah Gillett Dustin L. Perry Hall Estill Hardwick, P.C. Tulsa, Oklahoma and Christopher A. Chisman Holland & Hart LLP Denver, Colorado and Mark F. Sheridan Bradford C. Berge Robert J. Sutphin John C. Anderson Elisa C. Dimas Holland & Hart LLP Santa Fe, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion to Alter or Amend and to Reconsider Memorandum Opinion and Order [Doc. 252], filed September 15, 2016 (Doc. 255)("Motion to Amend"); and (ii) the Plaintiffs' Second Motion for Class Certification, filed September 15, 2016 (Doc. 256)("Second Motion for Class Certification"). The Court held a hearing on January 24, 2017. The primary issues are: (i) whether the Plaintiffs may raise a new class definition not in the Fourth Amended Complaint, filed October 31, 2013 (Doc. 96-1); (ii) if the Court required the Plaintiffs to amend their Complaint before proposing a new class definition, whether rules 15(a) and 16(b)(4) bar such an amendment; (iii) whether the Plaintiffs previously waived their new class definition by proposing and withdrawing an older one; (iv) whether the new proposed class is ascertainable; (v) whether the new proposed class definition creates commonality; and (vi) whether the new proposed class definition will allow common issues to predominate over individual ones. The Court concludes that (i) the Plaintiffs may raise a new class definition not in the operative complaint; (ii) even if the Plaintiffs could not do so, rules 16(b)(4) and 15(a) would not bar the Plaintiffs from amending their complaint; (iii) the Plaintiffs have not previously waived their new class definition; (iv) the proposed class definition is ascertainable; (v) the proposed class definition does not create commonality; and (vi) common issues would not predominate over individual ones. Accordingly, the Court denies the Motion to Amend and the Second Motion for Class Certification.

         FACTUAL BACKGROUND

         Plaintiffs Steven J. Abraham and H Limited Partnership filed this class action in August 2012 to recover damages for gas royalty underpayments that Defendant WPX Energy Production L.L.C. ("WPX Energy") allegedly makes. Motion to Amend at 1. WPX Energy pays the plaintiff royalty owners on a payment method called the keep-whole payment methodology. See Motion to Amend at 1. This payment method "pays royalty on a well's volume of produced MMbtus (British Thermal Units) based on methane volume and omits royalty [payments] on the value of [Natural Gas Liquids]" or NGLs. Motion to Amend at 2. The Plaintiffs' major contention is that this payment method does not pay them royalties on the value of refined NGLs. See Motion to Amend at 1. Previously, the Plaintiffs moved the Court to certify them as a class, which the Court denied. See Abraham v. WPX Production Productions, LLC, 317 F.R.D. 169, 175 (D.N.M. 2016)(Browning, J.)("Abraham"). The Court denied the previous motion for class certification for several reasons. First,

because the Plaintiffs' class definition includes only those wells whose gas is or has been processed at three specific processing plants, the Court cannot adequately ascertain the class. Second, because the Plaintiffs' class definition includes only that gas that was processed for natural gas liquid extortion and marketing, the Court must determine which gas was processed.

317 F.R.D. at 175. In other words, the Court held that the proposed class was not ascertainable. See 317 F.R.D. at 254.

         The Court further concluded that "how the Defendants should have paid the Plaintiffs . . . varies between leases" because of "textual variations among the leases." 317 F.R.D. at 175. The Court ruled that these factors destroyed two key requirements of class certification, commonality and predominance. See Fed.R.Civ.P. 23(a)(2), (b)(3). The Court also held, however, that the Plaintiffs met the other requirements for class certification. See Abraham, 317 F.R.D. at 175. Because the Court ultimately denied the Motion, the Plaintiffs have now filed a Motion to Amend and Second Motion for Class Certification.

         PROCEDURAL BACKGROUND

         The Court will outline the basic allegations and legal arguments underlying the Plaintiffs' motions. The Court will also describe the Defendants' responses to those arguments. Finally, the Court will summarize the hearing on these motions.

         1. The Motion to Amend.

         The Plaintiffs contend that the Court should alter or amend its opinion in Abraham based on a new proposed class definition. See Motion to Amend at 5. Specifically, the Plaintiffs have proposed the following new class definition:

The class consists of all present and former owners of royalty and overriding royalty from August 2006 to the present whose instruments provide for payment on "proceeds" or on "market value at the well" by WPX Energy Production LLC and its corporate predecessors on production of natural gas from San Juan Basin conventional formations and whose royalty and overriding royalty has been calculated on a "keep-whole" method omitting payment on the value of the processed natural gas liquids portion of the production.
The New Mexico subclass consists of present and former owners of royalty and overriding royalty that burden WPX Energy Production LLC oil and gas leases and wells in the San Juan Basin in New Mexico.
The Colorado subclass consists of present and former owners of royalty and overriding royalty that burden WPX Energy Production LLC oil and gas leases and wells in the San Juan Basin in Colorado.
The Class membership excludes the United States of America in its own right and as trustee for Indian tribes or Indian lessors and any other lessors for which an agency of the Secretary of Interior administers royalties. The class excludes the State Land Board of Colorado and the Commissioner of Public Lands of New Mexico and oil and gas leases issues by either of those states. The class excludes WPX Energy Production, LLC f/k/a Williams Production Company, LLC, Williams Four Corners, LLC and Williams Energy Resources, LLC and their predecessors, successors and affiliates.

Motion to Amend at 5-6. The Plaintiffs make several arguments why this class definition improves upon the original one. First, the Plaintiffs contend that, unlike in the original class definition, "the class members can be identified without regard to where their gas was processed, or whether it was processed on the WFC system." Motion to Amend at 6. The Plaintiffs assert, "[t]he class includes owners who are paid on the keep-whole methodology regardless of the circumstance of the gas processing." Motion to Amend at 6. They assert that "WPX records provide a database which can identify the class members." Motion to Amend at 6.

         Next, the Plaintiffs argue that "the amended class definition addresses many of the Court's concerns about commonality, " because, "[d]uring the relevant period, WPX has uniformly paid royalty and overriding royalty to the members of the putative class on a keep-whole method for production gathered and processed by WFC . . . ." Motion to Amend at 7. According to the Plaintiffs, this royalty payment system "calculates payment to class members despite variables in gas flow delivery to processing plants and whether in given instances some of the class wells' gas stream may not be processed." Motion to Amend at 7.

         Regarding the issue of predominance, the Plaintiffs contend that "[c]ommon issues will predominate where the class is limited to those owners paid on proceeds and market value of gas at the well leases." Motion to Amend at 9. Specifically, they argue that, under the new class definition, "the Court must resolve the premier common issue, whether plaintiffs are entitled to royalty on processed NGLs, as to only two lease forms, " "proceeds" leases and "market value of gas at the well" leases. Motion to Amend at 9-10. The Plaintiffs' key contention is that, despite the Court previously categorizing all of the leases at issue into eleven categories (plus another for illegible leases), only two categories of leases exist under the Plaintiffs' new class definition, namely, "proceeds" leases and "market value" leases. Motion to Amend at 20; Abraham, 317 F.R.D. at 274-75. The Plaintiffs concede that the leases previously referenced as those in Categories B and F are excluded from their new class definition. See Motion to Amend at 20-21.[1]

         Finally, the Plaintiffs assert that, given the new class definition, the Court should certify the Plaintiffs' claims for breach of the implied covenant to market. See Motion to Amend at 22. Their contention is that "WPX does not market the NGLs for the benefit of the class under the keep-whole methodology." Motion to Amend at 22. The Plaintiffs argue that this conduct breaches the implied covenant to market "as to all royalty owners who are entitled to processed NGLs under their royalty provisions." Motion to Amend at 22-23. According to the Plaintiffs, the two categories of leases in their proposed class - proceeds and market value leases - "entitle royalty owners to payment on processed NGLs." Motion to Amend at 23. The Plaintiffs conclude that, because those two lease categories are allegedly entitled to payments on NGLs, the implied covenant to market "applies to those two lease types across the board." Motion to Amend at 23.

         Separately, the Plaintiffs contend that their claim for breach of the duty of good faith and fair dealing is also certifiable. See Motion to Amend at 26. They argue that, because WPX Energy has denied the class members payment on NGL royalties, WPX Energy has breached the duty of good faith and fair dealing.

         In conclusion, the Plaintiffs ask the Court to amend its decision in Abraham to conclude that the Plaintiffs' new class definition satisfies all of the rule 23 class certification requirements, and certify the case as a class action based on claims for breach of contract, breach of the duty of good faith and fair dealing, and breach of the implied covenant to market. See Motion to Amend at 27.

         2. The Second Motion for Class Certification.

         Much of the Second Motion for Class certification repeats arguments in the Motion to Amend. It states the Plaintiffs' new class definition and again contends that the new definition meets the rule 23(a)(2) commonality requirement. See Second Motion for Class Certification at 2. It notes again that, "[t]he proposed class definition eliminates the processing issue and focuses on those owners who are paid on the keep-whole methodology." Second Motion for Class Certification at 4.

         The Second Motion for Class Certification also argues that the new class definition satisfies the rule 23(b)(3) predominance requirement. See Second Motion for Class Certification at 7. Specifically, the Plaintiffs contend that the question - "are the class members entitled to be paid on the value of processed NGLs" - is answerable on a class-wide basis under the new class definition. Second Motion for Class Certification at 7. After resolving that question, the Plaintiffs argue that "[t]he only lease language inquiry required is: do proceeds (net and gross) leases and market value at the well leases entitle the lessors to share in the value of processed NGLs?" Second Motion for Class Certification at 8. The Plaintiffs argue that this question can be answered on a class-wide basis. See Second Motion for Class Certification at 8-9.

         The Plaintiffs then reassert their argument that the Court should certify their claims for beach of the implied covenant to market and the duty of good faith and fair dealing. See Second Motion for Class Certification at 10. The Plaintiffs further reassert their argument that the Court should certify their claim for civil conspiracy to breach their royalty agreements. See Second Motion for Class Certification at 11.

         Finally, the Plaintiffs conclude by asking the Court to certify the class based on the new class definition, and to certify their claims for breach of contract, breach of the covenant of good faith and fair dealing, breach of the implied covenant to market, and civil conspiracy. See Second Motion for Class Certification at 13. The Plaintiffs also request that the Court appoint the named Plaintiffs, Steve Abraham and H Limited, as class representatives, and appoint the Gallegos Law Firm, P.C. as class counsel. See Second Motion for Class Certification at 13.

         3. The Response to the Plaintiffs' Motion to Amend.

         The Defendants[2] respond to the Motion to Amend. See Defendants' Response in Opposition to Plaintiffs' Motion to Alter or Amend and to Reconsider Memorandum Opinion and Order, filed November 2, 2016 (Doc. 260)("Response to Motion 1"). The Defendants briefly argue that the new class definition "does not constitute a material change in circumstances and thus does not support relief under Rule 23(c)(1)(C)." Response to Motion 1 at 6.

         Next, the Defendants assert that, "by pursuing and then abandoning the 'keep-whole' aspect of their new [class] definition, Plaintiffs waived it." Response to Motion 1 at 6. The Defendants argue that the Plaintiffs had previously offered a similar class definition, but later "admitted that their proposed amendment was 'inappropriate' and voluntarily withdrew it.” Response to Motion 1 at 6-7 (quoting Plaintiffs' Position on Defendants' Motion to Determine Class Certification Based on the Class Definition Contained in Plaintiffs' Fourth Amended Complaint, filed September 23, 2015 (Doc. 242). On these facts, the Defendants conclude that the Plaintiffs waived the "keep-whole" aspect of the new class definition. Response to Motion 1 at 6-7.

         The Defendants then contend that "custom and usage evidence supports the Court's Commonality and Predominance rulings." Response to Motion 1 at 8. The Defendants note that, in Abraham, "the Court correctly concluded that 'the different industry custom and usage evidence needed to identify each proposed class members' royalty interest and determine how they should be paid' is not common, and cuts against predominance." Response to Motion 1 at 9-10 (quoting Abraham, 317 F.R.D. at 273). The Defendants add that, "at a trial on the merits, evidence of trade usages could potentially bind H Ltd, Mr. Abraham, [and others] to the meaning within the oil and gas industry of disputed lease terms. Whether any of them would be bound would be a question of fact as to each of them." Response to Motion 1 at 11. The Defendants make other arguments in support of the Court's previous rulings regarding commonality and predominance. See Response to Motion 1 at 12, 16, 17, 20, 22, 23. Most notably, however, the Defendants assert that, "whether considering 'proceeds' or 'market value' leases, [nothing] require[s] that royalty be paid on 'processed gas.'" Response to Motion 1 at 27. Specifically, the Defendants argue that the Court did not hold in Abraham that "proceeds" leases "require royalty payment on processed gas, and hence, on the value of refined NGLs." Response to Motion 1 at 27 (emphasis in original). The Defendants refer to a footnote in Abraham in which the court gave its "inclinations about what some of the royalty terms mean . . . 'Proceeds' . . . forbids paying NGL royalty on a keep-whole basis." Abraham, 317 F.R.D. at 275 n.82. The Defendants note that this statement was merely the Court's "inclination" and not a holding. Response to Motion 1 at 27. "In contrast to its 'inclinations, ' the Court held . . . that Plaintiffs' breach-of-contract claims "require an individualized inquiry." Response to Motion 1 at 28 (citing Abraham, 317 F.R.D. at 263).

         Finally, the Defendants argue that the "Plaintiffs' implied duty to market and implied duty of good faith and fair dealing claims do not satisfy commonality or predominance." Response to Motion 1 at 31. Regarding the implied duty to market, the Defendants note that the Court held that, '"[e]ven if a reasonably prudent operator would not have marketed the products using the keep-whole scheme, the Plaintiffs suffer harm only if the keep-whole scheme deprived them of their royalty interest.'" Response to Motion 1 at 31 (quoting Abraham, 317 F.R.D. at 265). "The duty to market, " the Court noted, '"does not define the lessor's royalty interest; the lease's royalty provision does that.'" Response to Motion 1 at 31 (quoting Abraham, 317 F.R.D. at 265). "Thus, determining whether WPX breached the duty to market turns on an individualized inquiry into whether a particular class member's royalty instrument provides for royalty on refined NGLs." Response to Motion 1 at 31. On these facts, the Defendants conclude that "the question whether WPX breached the duty to market is, as the Court held, not a common one." Response to Motion 1 at 32 (citing Abraham, 317 F.R.D. at 265-66).

         Finally, the Defendants assert that the Court cannot certify the claim for breach of the duty of good faith and fair dealing. See Response to Motion 1 at 32. The Defendants argue that the Plantiffs "bald[ly] conclude[e] that WPX breached the duty by denying payment on the value of refined NGLs . . . but they do not explain why this claim is a common one." Response to Motion 1 at 32. The Defendants conclude that the Court should deny the Motion. Response to Motion 1 at 33.

         4. The Response to the Plaintiffs' Second Motion for Class Certification.

         The Defendants respond to the Plaintiffs' Second Motion for Class Certification. See Defendants' Response in Opposition to Plaintiffs' Second Motion for Class Certification, filed November 2, 2016 (Doc. 259)("Response to Motion 2"). They make several procedural arguments. First, the Defendants assert that "the Court must continue to determine class certification based on the Definition contained in the operative complaint." Response to Motion 2 at 3. Specifically, the Defendants contend that the "Plaintiffs are bound by the class definition in the complaint and 'absent an amended complaint [the Court] will not consider certification beyond it.'" Response to Motion 2 at 3 (quoting Costelo v. Chertoff, 258 F.R.D. 600, 604-05 & n.6 (CD. Cal. 2009)(Selna, J.)). The Defendants contend that "courts will not permit plaintiffs to change or expand their class definition through a motion to certify." Response to Motion 2 at 3 (citing Phelps v. Parsons Tech. Support. Inc., 2010 WL 4386918, at *3 (S.D. Ind. 2010)(Magnus-Stinson, J.)). The Defendants conclude that, because the Plaintiffs have not moved to amend their Complaint, the Court should not entertain the Plaintiffs' Motions. See Response to Motion 2 at 3.

         Next, The Defendants argue that the Plaintiffs cannot obtain leave to amend their Complaint, because "the deadline to Amend has passed, and Plaintiffs cannot show good cause under Rule 16(b)(4)." Response to Motion 2 at 3. The Defendants argue that a key requirement of the good-cause standard is "diligence" and that the Plaintiffs have not been diligent by tendering "this new [class] definition nearly three years after they first learned of their ascertainability problem and more than two years after the parties completed extensive discovery and a multi-day hearing premised on the [original class] definition." Response to Motion 2 at 7.

         Additionally, the Defendants contend that, to amend a complaint, "a party seeking to amend must satisfy Rule 15(a), under which a court may deny an amendment for, among other things, the moving party's undue delay or the non-movant's undue prejudice." Response to Motion 2 at 7 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)(emphasis in original)). The Defendants contend that both undue delay and undue prejudice are grounds for denying a motion to amend a complaint here. See Response to Motion 2 at 7. The Defendants assert that the Plaintiffs "offer no adequate explanation for their delay." Response to Motion 2 at 8. Regarding undue prejudice, they assert that the "Defendants have been litigating class certification under the [original] class definition for over four years" and have relied on that definition, thus prejudicing the Defendants. Response to Motion 2 at 8.

         The Defendants next briefly reassert their waiver argument, before contending that "the proposed new class definition does not constitute a material change in circumstances justifying Plaintiffs' request to alter or amend the class certification ruling." Response to Motion 2 at 9. Specifically, the Defendants contend that Rule 23(c)(1)(C) "is designed so that 'a determination once made can be altered or amended before the decision on the merits, if upon fuller development of the facts, the original determination appears unsound.'" Response to Motion 2 at 9 (quoting Fed.R.Civ.P. 23 advisory committee notes to 1966 amendment). According to the Defendants, a new class definition, offered to replace one the court found wanting, does not meet this standard. See Response to Motion 2 at 10.

         Next, the Defendants assert that the Plaintiffs' new class definition "does not solve the ascertainability problem." Response to Motion 2 at 11. The Defendants argue that the new class definition is not ascertainable, because

it is still tied to a demand for payment on processed NGLs. Although they have eliminated the reference to the three processing plants, Plaintiffs have provided no new evidence concerning processing. Because most gas is not processed, and because Plaintiffs failed to prove whether or not other gas was processed, the problem of ascertaining whose gas was processed, and thus, who belongs in the class, remains.

Response to Motion 2 at 12.

         Additionally, the Defendants argue that the new class definition "does not supply commonality." Response to Motion 2 at 13. They argue that "the breach of lease claims and the implied duty claims do not present a common question, " and that "the civil conspiracy claim is derivative of the breach-of-contract claims, and it therefore does not supply a common issue." Response to Motion 2 at 13, 19.

         Further, the Defendants assert that "the proposed new definition does not eliminate the predominance of individual issues over any common ones." Response to Motion 2 at 20. Specifically, they posit that, despite the new class definition, "lease language variations will continue to overwhelm any alleged common issue, " and that "industry custom and usage evidence and other parol evidence will require individualized inquiries." Response to Motion 2 at 20-21.

         The Defendants additionally argue that "damages evidence remains highly individualized." Response to Motion 2 at 20. Specifically, "because Plaintiffs have not shown they are entitled to extracted NGLs or actual amounts received by WPX under all royalty and overriding royalty instruments at issue, determining liability and damages requires an individualized inquiry that will differ by lease, well, and month." Response to Motion 2 at 22.

         Finally, the Defendants assert that "former royalty owners add individualized issues concerning ownership of claims, which further defeats predominance." Response to Motion 2 at 23. The Defendants contend that the new class definition contains former royalty owners, and that "current royalty owners do not necessarily have the right to assert claims and recover damages for royalties that were not paid to their predecessors-in-interest." Response to Motion 2 at 23. "Accordingly, determining whether a right of action was transferred, and thus, who owns a claim for past underpayments - the current or former owner - will entail examinations of the chain of title for each class member, and possibly extrinsic evidence." Response to Motion 2 at 24. The Defendants thus conclude that the Court should deny the Motion. See Response to Motion 2 at 24.

         5. The Reply to the First Response.

         The Plaintiffs reply to the Defendants' arguments. See Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion to Alter or Amend and to Reconsider Memorandum Opinion and Order, filed November 28, 2016 (Doc. 263)("Reply 1"). First, the Plaintiffs re-assert that their new class definition meets the commonality and predominance requirements. See Reply 1 at 1. They re-assert that the leases at issue can be divided into two categories of "proceeds" leases and "market value" leases, and that, at the very least, proceeds leases forbid paying NGL royalty on a keep-whole basis. Reply 1 at 2-3 (citing Abraham, 317 F.R.D. at 275 n.82).

         Next, the Plaintiffs argue that the class is ascertainable. See Reply 1 at 4. Specifically, "defining the class by those who are paid on the keep-whole method identifies the persons entitled to relief and who are bound by the judgment. It supplies a source of identification . . . based on WPX's records of past and current monthly remittances for royalty and overriding royalty." Reply 1 at 4.

         Additionally, the Plaintiffs argue that, although the Court concluded '"the evidence suggests 'gas' refers to the gas produced at the wellhead rather than the processed products, '" there is no dispute "that the proceeds and market value leases entitle payment on 'gas.'" Reply 1 at 7 (quoting Abraham, 317 F.R.D. at 263). "There are no sales at the wells. The proxy for sales of gas at the well are proceeds achieved by sales of the gas components at the place and in the subdivide forms of the production found at the outlet of processing plants." Reply 1 at 7-8.

         The Plaintiffs also argue that "[construction of leases is to favor lessors, " specifically that "between lessor and lessee construction of the lease shall be against the lessee and in favor of the lessor." Reply 1 at 10 (citing Greer v. Salmon, 1971-NMSC-002, 479 P.2d 294). This rule exists, because "the lessors ... are not familiar with oil-and-gas industry usage and the leases are form contracts not ordinarily the product of meaningful negotiation." Reply 1 at 11.

         The Plaintiffs conclude by asking the Court to amend its decision denying class certification. See Reply 1 at 12.

         6. The Reply to the Second Response.

         The Plaintiffs reply to the Second Response. See Reply in Support of Plaintiffs' Second Motion for Class Certification, filed November 28, 2016 (Doc. 264)("Reply 2"). First, the Plaintiffs argue that their Second Motion is timely. See Reply 2 at 1. They contend that, "[u]ntil the Court filed [Abraham] on August 16, 2016, the Plaintiffs reasonably believed that this case would be certified. There was no reason for Plaintiffs to file additional motions addressed to the certification issue until the Court announced its decision." Reply 2 at 2. The Plaintiffs further argue that "the Court has ample authority to consider the Second Motion." Reply 2 at 3. Specifically, they contend that "Rule 23 does not limit the class definition to a definition set forth in the complaint. To the contrary, Rule 23 puts the responsibility for defining a class on the Court. The class definition is ultimately determined by the Court, not the parties." Reply 2 at 5 (citing Blair v. Transam Trucking. Inc., 2015 WL 5006076, at *3 (D. Kan. 2015)(Melgren, J.)). Further, the Plaintiffs contend that "[t]he Tenth Circuit has never ruled that a district court is limited to the class definition in the complaint." Reply 2 at 5. The Plaintiffs argue: "The most that can be said in support of WPX's position is that district courts are split on the issue." Reply 2 at 6. The Plaintiffs add that, "[e]ven if the Court were inclined to narrowly view its authority to consider a class definition in a motion for class certification different from that in the operative complaint, the remedy should be to allow plaintiffs to amend their complaint." Reply 2 at 7.

         Next, the Plaintiffs assert that their new class definition cures the ascertainability problem. See Reply 2 at 7. They reassert that royalty owners paid on the keep-whole methodology are "readily ascertainable based on WPX's own records." Reply 2 at 7. The Plaintiffs further contend that the new class definition establishes commonality and predominance. See Reply 2 at 8. The Plaintiffs reassert their arguments that the new class definition includes only owners paid under proceeds and market value leases, and that these owners are similarly situated "for purposes of the case, subject only to minor variations in the damage formula that would apply to each." Reply 2 at 9.

         Finally, the Plaintiffs re-argue that their implied covenant claims are also certifiable. See Reply 2 at 12. Plaintiffs contend that WPX Energy has breached the implied covenant to market and the breach of the duty of good faith and fair dealing, because "WPX does not fully market the production for the class members, so [it] cannot establish that it has marketed to get the best possible price." Reply 2 at 12.

         The Plaintiffs conclude by requesting that the Court grant their Second Motion and certify the new class definition. See Reply 2 at 12.

         7. The Hearing.

         The Court held a motion hearing on January 24, 2017. See Transcript of Motion Proceeding at 1:1 (taken January 24, 2017)(Court)("Tr."). The Plaintiffs began by stating "there is no doubt that the class is financially injured by nonpayment of the royalty and overriding royalty on natural gas liquids produced from the leases to which are burdened by those royalty interests, and that injury can only be remedied by a certified class action." Tr. at 3:18-24 (Gallegos). Regarding the Defendants' procedural challenges, the Plaintiffs argued that "[t]his is not an issue about amending a complaint. We're not changing or amending any causes of action or claims or defense. A motion is the proper means to seek an order of the Court. The motion is the proper way to come forward for class certification." Tr. at 7:3-8 (Gallegos).

         Turning to the ascertainability issue, the Plaintiffs argued that the new class is ascertainable, because "[t]hose royalty owners and overriding royalty owners who are paid on a keep-whole basis are parties that can be easily determined from the database of WPX." Tr. at 10:16-18 (Gallegos). The Plaintiffs then pivoted to commonality, arguing that, under the new class definition, "the issue in this case simply becomes, with everybody paid on the same basis, on the keep-whole basis, are the parties injured by that, or are they not injured by that." Tr. at 12:9-13 (Gallegos). The Plaintiffs continued arguing on commonality, asserting that all but a few leases fit into one of two categories - proceeds leases and market value leases. See Tr. at 23:7-12 (Gallegos). The Plaintiffs concluded by saying that

we believe that what has been brought before the Court regarding application of the proceeds and market value leases, along with the definition of the proposed description of the class, the three elements, the three issues that [argued] against certification, set forth on page 2 of your opinion, have been satisfied; that there is no longer a problem.

Tr. at 29:3-11 (Gallegos). The Defendants began their argument on the ascertainability issue. See Tr. at 31:6-8 (Sheridan). Specifically, they asserted that in the Plaintiffs' Reply, they "challenged for the first time findings and conclusions that the Court made with respect to the - which gas from which leases was or was not processed. And he does so in a way that is in direct conflict with the record in the case." Tr. at 32:5-10 (Sheridan). "[T]he reason that this becomes significant is that if the gas was not processed, if it was sold without processing, then there would be no proceeds from the sale of refined NGLs, no proceeds derived by either WFC or WPX." Tr. at 32:23-25, 33:1-2 (Sheridan). "So on the ascertainability question, the Court has to ask itself: Have the plaintiffs proven which gas from which wells on which leases was processed or not? Because if it wasn't processed, then there is no royalty obligation under their new definition." Tr. at 36:9-14 (Sheridan). "[T]he Court's findings and conclusions stand for the proposition that a very substantial quantity of the WPX operated conventional production is not processed. And their definition doesn't cure that." Tr. at 39:8-12 (Sheridan).

         The Defendants then turned to their procedural arguments. See Tr. at 40:12-13 (Sheridan). They argued that "a new class certification motion can effectively be nothing more than a motion for reconsideration of the denial of the prior class certification motion, " meaning that a court should apply the standards applicable to a motion for reconsideration when considering a second motion for class certification. Tr. at 41:19-24. The Defendants argued that the Plaintiffs' Motions "do nothing more than raise issues that have already been raised, and then advance arguments that they could have raised, but tactically and strategically elected not to." Tr. at 41:7-11 (Sheridan).

And if the Court's standards for reconsideration mean anything, then they mean that this motion must be denied, and they mean that this second motion for class certification is nothing more than a rehash of the same issues that have been in the case since they filed their motion for class certification in 2014.

Tr. at 53:11-17 (Sheridan). Turning to the proceeds issue, the Defendants argued that

[t]he Court did not, in footnote 82, [3] nor anywhere else in the opinion that I can find, render a holding, whether for purposes of class certification, or otherwise, that a royalty on a keep-whole . . . contract, where the royalty owner does not own an interest in the refined NGLs, nonetheless is required to be paid royalty as he did.

Tr. at 55:23-25, 1-5 (Sheridan) (citing Abraham, 317 F.R.D. at 275 n.82). Regarding commonality, the Defendants posited: "I think that, without first considering the circumstances surrounding the execution of those leases, when they were entered into, what was going on in the industry . . . they may not necessarily mean the same thing. That becomes an individualized inquiry." Tr. at 64:4-10 (Sheridan).

Our argument with respect to custom and usage evidence supporting the Court's commonality and predominance ruling is uncontested. They rely on a canon of construction that an agreement is to be construed against the drafter. And they ignore, however, that that canon of construction applies only after the Court has fully considered the extrinsic evidence.

Tr. at 66:12-19 (Sheridan). The Defendants concluded by saying: "I think this Court correctly found that the Plaintiffs could not establish the requirements of commonality and predominance. And nothing that they've said in their motion for reconsideration or second motion for class certification changes the Court's findings and conclusions in that respect." Tr. at 70:5-10 (Sheridan).

         The Court then asked the Defendants about the new class definition. See Tr. at 71:1-2 (Court). The Defendants asserted that there were several problems with the new class definition, including the inclusion of former owners and overriding royalty owners. See Tr. at 71:5-8 (Sheridan).

         The Court then inquired as to the Defendants' procedural arguments, asking how the Defendants would be prejudiced if the court ruled on the new class definition. See Tr. at 74:1-10 (Court). The Defendants responded by saying:

The Plaintiffs in this case filed an initial motion for class certification . . . sometime in 2013. It was withdrawn. They refiled a motion for class certification in January of 2014 . . . [T]hey prepared and prosecuted their motion for class certification at great time and expense to the defendants . . . [T]he burden of discovery in these cases, as the Court knows, falls largely on the defendants.

Tr. at 77:13-23 (Sheridan). The Court also asked the Plaintiffs about prejudicing the Defendants by ruling on the new class definition. See Tr. at 89:13-16 (Court). The Plaintiffs responded that "we basically had a mini trial [-] five, six days of evidence . . ., I think every issue was thoroughly tried at that hearing." Tr. 90:20-25 (Gallegos).

         LAW REGARDING MOTIONS TO RECONSIDER

         Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall into three categories:

(i) a motion to reconsider filed within [twenty-eight] days of the entry of judgment is treated as a motion to alter or amend the judgment under rule 59(e); (ii) a motion to reconsider filed more than [twenty-eight] days after judgment is considered a motion for relief from judgment under rule 60(b); and (iii) a motion to reconsider any order that is not final is a general motion directed at the Court's inherent power to reopen any interlocutory matter in its discretion. See Price v. Phjipot, 420 F.3d 1158, 1167 & n.9 (10th Cir. 2005).

Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.). See Price v. Philpot, 420 F.3d at 1167; Computerized Thermal Imaging, Inc. v. Bloomberg. L.P., 312 F.3d 1292, 1296 (10th Cir. 2002).

         1. Motions for Reconsideration Under Rules 59(e) and 60(b).

         Courts may treat motions for reconsideration as a rule 59(e) motion when the movant files within twenty-eight days of a court's entry of judgment. See Price v. Philpot, 420 F.3d at 1167 n.9. If the movant files outside that time period, courts should treat the motion as seeking relief from judgment under rule 60(b). See Price v. Philpot, 420 F.3d at 1167 n.9. "[A] motion for reconsideration of the district court's judgment, filed within [rule 59's filing deadline], postpones the notice of appeal's effect until the motion is resolved." Jones v. United States, 355 Fed.Appx. 117, 121 (10th Cir. 2009)(unpublished). The time limit in rule 59(e) is now twenty-eight days from the entry of a judgment. See Fed.R.Civ.P. 59(e).

         Whether a motion for reconsideration should be considered a motion under rule 59 or rule 60 is not only a question of timing, but also "depends on the reasons expressed by the movant." Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1200 (10th Cir. 2011). Where the motion "involves 'reconsideration of matters properly encompassed in a decision on the merits, '" a court considers the motion under rule 59(e). Phelps v. Hamilton, 122 F.3d 1309, 1323-24 (10th Cir. 1997)(quoting Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir. 1989)). In other words, if the reconsideration motion seeks to alter the district court's substantive ruling, then it should be considered a rule 59 motion and be subject to rule 59's constraints. See Phelps v. Hamilton, 122 F.3d at 1324. In contrast, under rule 60,

[o]n motion and just terms, the court may relieve a party or its legal representatives from a final judgment, order, or proceeding for 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 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). Neither a rule 59 nor a rule 60 motion for reconsideration

are appropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion. . . . Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.

Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). "[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d at 1012. A district court has considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d at 1324.

         Rule 60 authorizes a district court to, "[o]n motion and just terms[, ] . . . relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons, " including "any other reason that justifies relief." Fed.R.Civ.P. 60(b). A court cannot enlarge the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347 (10th Cir. 1988)(holding that district courts lack jurisdiction over untimely rule 59(e) motions); Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., No. 11-0103, 2012 WL 869000, at *2 (D.N.M. Mar. 8, 2012)(Browning, J.)("The Court may not extend the time period for timely filing motions under Rule 59(e) . . . ."). "A motion under rule 59 that is filed more than 28 days after entry of judgment may be treated as a Rule 60(b) motion for relief from judgment." 12 James Wm. Moore et al., Moore's Federal Practice § 59.11 [4][b], at 59-32 (3d ed. 2012)(citations omitted). Nevertheless, a court will not generally treat an untimely rule 59(e) motion as a rule 60(b) motion when the party is seeking '"reconsideration of matters properly encompassed in a decision on the merits' contemplated by Rule 59(e)." Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005).

         Under some circumstances, parties can rely on rule 60(b)(1) for a mistake by their attorney or when their attorney acted without their authority. See Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999)("Rule 60(b)(1) motions premised upon mistake are intended to provide relief to a party . . . when the party has made an excusable litigation mistake or an attorney has acted without authority . . . ."). Mistake in this context entails either acting without the client's consent or making a litigation mistake, such as failing to file or to comply with deadlines. See Yapp v. Excel Corp., 186 F.3d at 1231. If the alleged incident entails a mistake, then it must be excusable, meaning that the party was not at fault. See Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. 380, 394 (1993); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)("If the mistake alleged is a party's litigation mistake, we have declined to grant relief under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled decision by the party."); Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)(holding that attorney carelessness is not a basis for relief under rule 60(b)(1)).

         Courts will not grant relief when the mistake of which the movant complains is the result of an attorney's deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577.

         This rule exists because a party

voluntarily chose [the] attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.

Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. at 397 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962))(internal quotation marks omitted). The Tenth Circuit has held that there is nothing "novel" about "the harshness of penalizing [a client] for his attorney's conduct, " and has noted that those "who act through agents are customarily bound, " even though, when "an attorney is poorly prepared to cross-examine an expert witness, the client suffers the consequences." Gripe v. City of Enid. Okla., 312 F.3d 1184, 1189 (10th Cir. 2002).

         Rule 60(b)(6) is a "grand reservoir of equitable power to do justice in a particular case." Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991)(internal quotation marks omitted). "If the reasons offered for relief from judgment could be considered under one of the more specific clauses of Rule 60(b)(1)-(5), those reasons will not justify relief under Rule 60(b)(6)." Moore, supra § 60.48[2], at 60-182. Accord Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.ll (1988)("This logic, of course, extends beyond clause (1) and suggests that clause (6) and clauses (1) through (5) are mutually exclusive."). "The Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice, ' while also cautioning that it should only be applied in 'extraordinary circumstances.'" Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 863.

         Generally, the situation must be one beyond the control of the party requesting relief under rule 60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S. 193, 202 (1950)("The comparison [of prior precedent] strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has no application to the situation of petitioner."). Legal error that provides a basis for relief under rule 60(b)(6) must be extraordinary, as the Tenth Circuit discussed in Van Skiver v. United States:

The kind of legal error that provides the extraordinary circumstances justifying relief under Rule 60(b)(6) is illustrated by Pierce [v. Cook & Co., 518 F.2d 720, 722 (10th Cir. 1975)(en banc)]. In that case, this court granted relief under 60(b)(6) when there had been a post-judgment change in the law "arising out of the same accident as that in which the plaintiffs . . . were injured." Pierce v. Cook & Co., 518 F.2d at 723. However, when the post-judgment change in the law did not arise in a related case, we have held that "[a] change in the law or in the judicial view of an established rule of law" does not justify relief under Rule 60(b)(6). Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958).

Van Skiver v. United States, 952 F.2d at 1244-45.

         2. Motions to Reconsider Interlocutory Orders.

         Considerable confusion exists among the bar regarding the proper standard for a district court to apply when ruling on a motion to reconsider one of its prior "interlocutory" or "interim" orders, Le., an order that a district court issues while the case is ongoing, as distinguished from a final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v. Does, which refers to rule 59(e) motions - "motion[s] to alter or amend a judgment" - as "motions to reconsider, "[4] compounded that baseline confusion. Fed.R.Civ.P. 59(e) (emphasis added); Servants of the Paraclete v. Does, 204 F.3d at 1005.

         Final judgments are different from interlocutory orders. See Fed.R.Civ.P. 54(a) ("'Judgment' as used in these rules includes a decree and any order from which an appeal Kes.")(emphasis added). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts . . . ."), the entry of final judgment narrows the district court's formerly plenary jurisdiction over the case in three ways. First, for the first twenty-eight days after the entry of judgment, when the court can entertain motions under rules 50(b), 52(b), 59, and 60, the district court's jurisdiction trumps that of the Court of Appeals. See Fed. R. App. P. 4(a)(4)(B). Even if a party files a notice of appeal, the Court of Appeals will wait until after the district court has ruled on the post-judgment motion to touch the case. See Fed. R. App. P. 4(a)(4)(B). Second, after twenty-eight days, when the court may consider motions under rule 60, if a party has filed a notice of appeal, the Court of Appeals' jurisdiction trumps the district court's, and the district court needs the Court of Appeals' permission even to grant a rule 60 motion. Third, after twenty-eight days, if no party has filed a notice of appeal, district courts may consider motions under rule 60.

         Final judgments implicate two important concerns militating against giving district courts free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in finality. The parties and the lawyers expect to go home, quit obsessing about the dispute, and put the case behind them, and the final judgment - especially once the twenty-eight day window of robust district court review and the thirty-day window of appeal have both closed - is the disposition upon which they are entitled to rely. Second, when a case is appealed, there is the need for a clean jurisdictional handoff from the district court to the Court of Appeals. "[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously, " as doing so produces a "danger [that] a district court and a court of appeals w[ill] be simultaneously analyzing the same judgment." Griggs v. Provident Consumer Discount Ca, 459 U.S. 56, 58-59(1982).

         The Court of Appeals needs a fixed record on which to base its decisions - especially given the collaborative nature of appellate decision making - and working with a fixed record requires getting some elbow room from the district court's continued interference with the case. The "touchstone document" for this jurisdictional handoff is the notice of appeal, and not the final judgment, see Griggs v. Provident Consumer Discount Co., 459 U.S. at 58 ("The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (citations omitted)); Garcia v. Burlington N. R.R. Co.. 818 F.2d 713, 721 (10th Cir. 1987)("Filing a timely notice of appeal pursuant to Fed. R. App. P. 3 transfers the matter from the district court to the court of appeals. The district court is thus divested of jurisdiction. Any subsequent action by it is null and void." (citations omitted)); Kirtland v. J. Ray McDermott & Co.. 568 F.2d 1166, 1170 (5th Cir. 1978)("[I]t is the filing of the appeal, not the entering of a final judgment, that divests the district court of jurisdiction." (citations omitted)), but, because the final judgment starts the parties' thirty-day clock for filing a timely notice of appeal, the Federal Rules and the Tenth Circuit have chosen to curtail the district court's jurisdiction over the case in the roughly month-long period of potentially overlapping trial- and appellate-court jurisdiction that immediately follows the entry of final judgment, see Servants of the Paraclete v. Does, 204 F.3d at 1009 (noting that post-final judgment motions at the district court level are "not intended to be a substitute for direct appeal").

         Basically, rather than suddenly divesting the district court of all jurisdiction over the case - potentially resulting in the district court being unable to rectify easily fixable problems with the final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that might otherwise not need to be appealed - the Federal Rules set forth a jurisdiction phased de-escalation process, wherein the district court goes from pre-final judgment plenary jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to solely rule 60 review after twenty-eight days. In defining the "limited review" that rule 59(e) allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the Paraclete v. Does, incorporated traditional law-of-the-case grounds - the same grounds that inform whether a court should depart from an appellate court's prior decision in the same case - into rule 59(e). See United States v. Alvarez. 142 F.3d 1243, 1247 (10th Cir. 1998)(departing from the law-of-the-case doctrine in three exceptionally narrow circumstances: "(1)when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice") (citation omitted); Servants of the Paraclete v. Does, 204 F.3d at 1012 (incorporating those grounds into rule 59(e)).

         Neither of these concerns - finality nor jurisdictional overlap - is implicated when a district court reconsiders one of its own interlocutory orders. The Federal Rules do not specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the following open-ended proclamation about their mutability:

When an action presents more than one claim for relief - whether as a claim, counterclaim, crossclaim, or third-party claim - or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district court's ability to do so, other than that it must do so "before the entry of judgment." Fed.R.Civ.P. 54(b).

         The Tenth Circuit has not cabined district courts' discretion beyond what rule 54(b) provides: "[D]istrict courts generally remain free to reconsider their earlier interlocutory orders." Been v. O.K. Indus., 495 F.3d at 1225. In the Tenth Circuit, "law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another." Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011)(emphasis added) (citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this context, "the doctrine is merely a 'presumption, one whose strength varies with the circumstances.'" Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). In short, a district court can use whatever standard it wants to review a motion to reconsider an interlocutory order. It can review the earlier ruling de novo and essentially reanalyze the earlier motion from scratch, it can review the ruling de novo but limit its review, it can require parties to establish one of the law-of-the-case grounds, or it can refuse to entertain motions to reconsider altogether.

         The best approach, in the Court's eyes, is to analyze motions to reconsider differently depending on three factors. Of. Been v. O.K. Indus., Inc., 495 F.3d at 1225 ("[T]he doctrine is merely a 'presumption, one whose strength varies with the circumstances.'")(citation omitted). First, the Court should restrict its review of a motion to reconsider a prior ruling in proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to reconsider challenges. How "thoroughly" a point was addressed depends both on the amount of time and energy the Court spent on it, and on the amount of time and energy the parties spent on it - in briefing and orally arguing the issue, but especially if they developed evidence on the issue. A movant for reconsideration thus faces a steeper uphill challenge when the prior ruling was on a criminal suppression motion, class certification motion, or preliminary injunction, [5] than when the prior ruling is, e.g., a short discovery ruling. The Court should also look, not to the prior ruling's overall thoroughness, but to the thoroughness with which the Court addressed the exact point or points that the motion to reconsider challenges. A movant for reconsideration thus faces an easier task when he or she files a targeted, narrow-in-scope motion asking the Court to reconsider a small, discrete portion of its prior ruling than when he or she files a broad motion to reconsider that rehashes the same arguments from the first motion, and essentially asks the Court to grant the movant a mulligan on its earlier failure to present persuasive argument and evidence.

         Second, the Court should consider the case's overall progress and posture, the motion for reconsideration's timeliness relative to the ruling it challenges, and any direct evidence the parties may produce, and use those factors to assess the degree of reasonable reliance the opposing party has placed in the Court's prior ruling. See 18B CHARLES ALAN WRIGHT, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1, at 695-96 (2d ed. 2002)("Stability becomes increasingly important as the proceeding nears final disposition .... Reopening should be permitted, however, only on terms that protect against reliance on the earlier ruling."). For example, if a defendant (i) spends tens of thousands of dollars removing legacy computer hardware from long-term storage; then (ii) obtains a protective order in which the Court decides that the defendant need not produce the hardware in discovery; then (iii) returns the hardware to long-term storage, sustaining thousands more in expenses; and (iv) several months pass, then the plaintiffs should face a higher burden in moving the Court to reconsider its prior ruling that they faced in fighting the motion for protective order the first time.

         Third, the Court should consider the Servants of the Paraclete v. Does grounds. The Court should be more inclined to grant motions for reconsideration if the movant presents (i) new controlling authority - especially if the new authority overrules prior law or sets forth an entirely new analytical framework; (ii) new evidence - especially if the movant has a good reason why the evidence was not presented the first time around; or (iii) a clear indication - one that manifests itself without the need for in-depth analysis or review of the facts - that the Court erred.

         These three factors should influence the degree to which the Court restricts its review of a prior ruling, but they do not necessarily mean that the Court should always apply a deferential standard of review. The Court should pause before applying a standard of review to its own interlocutory orders that is more deferential than the standard that the Court of Appeals will apply to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or the party moving for reconsideration waived their right to appeal the alleged error by not raising the appropriate argument. Even in circumstances where the Court concludes that it is insulated from reversal on appeal, there are principled reasons for applying a de novo standard. After all, if the Court was wrong in its earlier decision, then, generally speaking, it is unjust to maintain that result - although the Court should weigh this injustice against any injustice that would result from upending the parties' reliance on the earlier ruling, which is the balancing test that the three factors above represent.

         What the Court means by "restricting its review" is less about applying a deferential standard of review - although that may be appropriate in some circumstances - and more about reducing (i) the depth of the Court's analysis the second time around - thus conserving judicial resources; and (ii) the impositions that relitigation of the prior ruling will impose on the party opposing the motion for reconsideration. The Court should consider the time and expense that the party opposing reconsideration spent in winning the earlier ruling, and should try to prevent that party from having to bear the same impositions again. Basically, even if the Court ultimately analyzes a motion to reconsider under the same standard that it analyzed the motion that produces the earlier ruling, it should analyze the motion in a different way - one focused on reducing the litigation burdens of the party opposing reconsideration. For example, when a party moves the Court for a preliminary injunction, standard practice is that the Court holds an evidentiary hearing as a matter of course, regardless whether it looks as if the party has a good chance of prevailing. If the party loses and the Court denies the injunction, however, and the party moves for reconsideration, the party should not be entitled to the presumption of an evidentiary hearing merely because he or she received that presumption the first time that the Court considered the motion.

         In light of these statements, it is perhaps better to characterize the increased burden that a movant for reconsideration faces as one of production and not of persuasion. The Court analyzes motions to reconsider by picking up where it left off in the prior ruling - not by starting anew. Parties opposing reconsideration can do the same, and they may stand on whatever evidence and argument they used to win the earlier ruling. Movants for reconsideration, on the other hand, carry the full burden of production: they must persuade the Court, using only the evidence and argument they put before it, that it should change its prior ruling; they must do all of the legwork, and not rely on the Court to do any supplemental fact-finding or legal research; and they must convincingly refute both the counterarguments and evidence that the opposing party used to win the prior ruling and any new arguments and evidence that the opposing party produces while opposing the motion to reconsider. Unlike the motion that produced the prior ruling, a motion to reconsider is not - and is not supposed to be - a fair fight procedurally. The deck is stacked against a movant for reconsideration, and if such a movant hopes to prevail, he or she must have not only a winning legal position, but the work ethic and tenacity to single-handedly lead the Court to his or her way of thinking.

         LAW REGARDING A CLASS DEFINITION NOT IN THE OPERATIVE COMPLAINT

         As an initial matter,

[d]istrict courts are split over whether to hold a plaintiff to the definition of a class as set forth in the complaint. Compare Costelo v. Chertoff, 258 F.R.D. 600, 604 (CD. Cal. 2009)("The Court is bound to class definitions provided in the complaint and, absent an amended complaint, will not consider certification beyond."); Berlowitz v. Nob Hill Masonic Mgmt., No. C-96-01241 MHP, 1996 WL 724776, at *2 (N.D. Cal. Dec.6, 1996)("The court is bound by the class definition provided in the complaint."), with Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 66181, at *2-3 (N.D. Ill. Jan. 4, 2013)(allowing amendment during certification proceedings and noting "[t]hat this approach is also consistent with Rule 23, which contemplated the amendment of a class certification order prior to judgment"); Bridgeview Health Care Ctr. Ltd. v. Clark, 09 C 5601, 2011 WL 4628744, at *2 (N.D. Ill. Sept. 30, 2011)(allowing amendment during certification proceedings).

Grodzitsky v. Am. Honda Motor Co. Inc., No. 2:12-CV-01142-SVW, 2014 WL 718431, at *4 (CD. Cal. Feb. 19, 2014)(Wilson, J.). The Tenth Circuit does not have a controlling opinion on this point, although Tenth Circuit language exists that might suggest that a court need not hold a plaintiff to the class definition in the operative complaint. See Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)("The district court can modify or amend its class-certification determination at any time before final judgment in response to changing circumstances in the case.")(citing Fed.R.Civ.P. 23(c)(1)(C)); In re Integra Realty Res., Inc., 354 F.3d 1246, 1261 (10th Cir. 2004)("Moreover, a trial court overseeing a class action retains the ability to monitor the appropriateness of class certification throughout the proceedings and to modify or decertify a class at any time before final judgment.")(citing Fed.R.Civ.P. 23(c)(1)).

         In litigation related to this case, this Court has noted:

Moreover, rule 23(c)(1)(C) authorizes courts to alter or amend orders granting or denying class certification before final judgment. See Fed.R.Civ.P. 23(c)(1)(C). The Court has "ample discretion to consider (or decline to consider) a revised class certification motion after initial denial." In re Initial Public Offering Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2007). Even after courts have denied a plaintiffs first attempt at class certification, courts allow plaintiffs to propose a refined class definition or different claims in an attempt to certify a different class than the one originally proposed. See Pettco Enterprises, Inc. v. White, 162 F.R.D. 151, 156 (M.D. Ala. 1995)(Albritton, J.) (allowing the plaintiffs to attempt to certify a class, even after the court had already denied certification once, and noting that the plaintiffs' new class definition changed the class and the claims). Courts of Appeals have made clear that nothing "precludes the [plaintiffs] from returning to the District Court to seek certification of a more modest class, as one to which the Rule 23 criteria might be met." In re Initial Public Offering Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2006). The United States Court of Appeals for the Fifth Circuit has "specifically invited" a district court to reconsider a denial of class certification. Calderon v. Presidio Valley Farmers Ass'n, 863 F.2d 384, 389 (5th Cir. 1989). The United States Court of Appeals for the Second Circuit has similarly noted that a plaintiff could seek to certify a narrower class after the Second Circuit upheld the district court's denial of class certification. See In re Initial Public Offering Sec. Litig., 483 F.3d at 73. The Second Circuit stated that the district court "can be expected to give such a request full and fair consideration." In re Initial Public Offering Sec. Litig., 483 F.3d at 73. On remand, the Honorable Shira A. Scheindlin, United States District Judge for the Southern District of New York, "held that the revised class definition satisfied the Rule 23 certification requirements" for purposes of a class settlement. In re Initial Public Offering Sec. Litig., 2011 WL 2732563, at *3 (S.D.N.Y. July 8, 2011)(Scheindlin, J.). On the other hand, the plaintiffs need to be careful not to turn a new class certification motion into a motion to reconsider, thereby asking the Court to apply the standards applicable to motions to reconsider.

Anderson Living Tr. v. WPX Energy Prod., LLC, No. CIV 12-0040, 2016 WL 5376325, at *9 (D.N.M. Aug. 27, 2016)(Browning, J.)("Anderson"). In summary, the Tenth Circuit has not explicitly ruled on this issue, but other Courts of Appeals have at least implied that a court need not hold a plaintiff to the class definition in the operative complaint. For these reasons, the Court concludes that a plaintiff is not bound to the class definition in the operative complaint for purposes of a second motion to certify a class. Class actions are hard work for the Court and the parties; the Court and the parties need to conform the pleadings to the reality of discovery, a lengthy class certification hearing, and the judicial resources expended in analyzing all of the extensive evidence on record. Some flexibility - not more formality - is needed in crafting a class action where one is warranted.

         LAW REGARDING WAIVER OF CLAIMS

         The Tenth Circuit has noted, in the context of waiver on appeal, that, "if the theory was intentionally relinquished or abandoned in the district court, we usually deem it waived and refuse to consider it." Richision v. Ernest Group, Inc., 634 F.3d 1123, 1127 (10th Cir. 2011)(Gorsuch, J.). "Waiver occurs when a party deliberately considers an issue and makes an intentional decision to forgo it." United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009). "We typically find waiver in cases where a party has invited the error that it now seeks to challenge, or where a party attempts to reassert an argument that it previously raised and abandoned below." United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008).

         In United States v. Zubia-Torres, 550 F.3d at 1207, the Tenth Circuit illustrated the waiver doctrine:

Similarly, in United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir.2008), the court found waiver, not forfeiture, when defense counsel first raised an issue and then affirmatively abandoned it. The defendant moved to suppress certain evidence, which the government claimed had been found in plain view. In a written pleading, the defendant argued that no facts were in dispute, but during the suppression hearing challenged the evidentiary basis for the government's plain view argument. The prosecutor responded that he thought the facts were undisputed but that the government could prove its position by testimony. Defense counsel neither contested the prosecutor's argument nor insisted that the testimony be heard. Accordingly, this Court found waived, the argument that the government had not proved that the contraband was in plain view. Defense counsel obviously knew of the issue. By his action, the defendant "affirmatively abandoned his challenge to the officers' testimony about the contraband and waived any claim on appeal.

United States v. Zubia-Torres, 550 F.3d at 1207 (internal citation omitted).

         LAW REGARDING MODIFICATION ...


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