United States District Court, D. New Mexico
GERALD ULIBARRI, on behalf of himself and a class of similarly situated persons, Plaintiff/Counter Defendant,
ENERGEN RESOURCES CORP., Defendant/Counter Claimant.
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
DEFENDANT TO PRODUCE THE ROYALTY OWNERS' ADDRESSES AND
has filed a class action against Defendant that seeks royalty
payments allegedly due in connection with leases on numerous
natural gas wells. In an effort to obtain information
Plaintiff argues is relevant to class certification,
Plaintiff has moved to compel Defendant to produce royalty
owners' addresses and telephone numbers. Doc. 41.
Defendant resists such production, arguing that
Plaintiff's motion to compel is untimely and, even if it
were not, the information Plaintiff requests is unjustified
because it intrudes on the privacy of the individuals
Plaintiff intends to contact; is not necessary, reliable, or
proportional to the needs of the case; and is duplicative and
less current than information Plaintiff is already obtaining
in a separate lawsuit. For the reasons set forth below, the
Court GRANTS Plaintiff's Motion to
Compel (Doc. 41).
Although Untimely, the Court Will Consider Plaintiff's
Motion to Compel Based on Findings of Good Cause and
argues that the Court should deny Plaintiff's motion to
compel because it is untimely. Doc. 49 at 5. It points out
that Plaintiff requested the contact information through a
request for production served on August 15, 2018.
Id. at 6. Defendant then served its objection to
this request on September 19, 2018. Id. Pursuant to
District of New Mexico Local Rule 26.6, Plaintiff had 21 days
thereafter to file his motion to compel. D.N.M.LR-Civ 26.6.
Rather than filing his motion to compel on the October 10,
2018 due date, Plaintiff filed it on November 7, 2018.
acknowledges he untimely filed his motion to compel but
argues that the Court should allow the late filing pursuant
to Federal Rule of Civil Procedure 6(b)(1)(B), which allows
courts to consider untimely filed motions upon a finding of
good cause and excusable neglect. Doc. 57 at 4; see
also Fed. R. Civ. P. 6(b)(1)(B) (allowing Court to grant
an extension of time to a party who has missed a deadline
“for good cause . . . if the party failed to act
because of excusable neglect.”). In so arguing,
Plaintiff overlooks the final sentence of Local Rule 26.6
which requires a “good cause” finding but no
“excusable neglect” finding. D.N.M.LR-Civ 26.6
(“[f]or good cause, the Court may, sua sponte
or on motion by a party, change the twenty-one (21) day
period.”). Given that the local rule which sets the
21-day requirement also contains a standard for modifying the
requirement, it is doubtful that the standards of Rule
6(b)(1)(B) apply to, and supplant, the standard in the local
rule itself. See Williams v. City of Tulsa, Okla.,
204 Fed.Appx. 762, 764 (10th Cir. 2006) (unpublished)
(rejecting argument that Rule 6(b) applies to time limit set
by local rule). Nonetheless, because Plaintiff himself
asserts that Rule 6(b) applies and because the end result is
the same regardless of whether the Court applies the
standards of Local Rule 26.6 or of Rule 6(b), the Court will
conduct the “excusable neglect” analysis from
Rule 6(b) as well as the “good cause” analysis
found in both rules. The Court begins with the “excusable
determination of whether a party's neglect is excusable
“is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's
omission.” United States v. Torres, 372 F.3d
1159, 1162 (10th Cir. 2004) (quoting Pioneer Inv.
Services Co. v. Brunswick Associates Ltd. P'ship,
507 U.S. 380, 395 (1993)). “[I]t is well established
that inadvertence, ignorance of the rules, and mistakes
construing the rules do not constitute excusable neglect for
purposes of Rule 6(b).” Quigley v. Rosenthal,
427 F.3d 1232, 1238 (10th Cir. 2005). The Court considers
certain factors in deciding whether a party's neglect is
excusable, including: (1) the danger of unfair prejudice to
the opposing party; (2) the length of the delay caused by the
neglect and its impact on judicial proceedings; (3) the
reason for delay, and whether it was in the reasonable
control of the moving party, and (4) the existence of good
faith on the part of the moving party. Torres, 372
F.3d at 1162. “Although inadvertence, ignorance of the
rules, or mistakes construing the rules do not usually
constitute ‘excusable' neglect, it is clear that
‘excusable neglect' under Rule 6(b) is a somewhat
‘elastic concept' and is not limited strictly to
omissions caused by circumstances beyond the control of the
movant.” Pioneer Inv. Services Co., 507 U.S.
at 392. Further, rulings on discovery matters are within the
broad discretion of the trial court. See Cole v. Ruidoso
Mun. Schools, 43 F.3d 1373, 1386 (10th Cir. 1994).
the Rule 6 factors here, the Court finds excusable neglect.
First, while generally noting that the class certification
discovery deadline was November 30, 2018, Defendant
identifies no unfair prejudice. Doc. 49 at 6. The Court does
not countenance Plaintiff missing the motion to compel
deadline. The Court acknowledges, however, that Plaintiff
sought the contact information from Defendant more than three
months before the discovery deadline. Further, even had
Plaintiff timely filed his motion to compel on October 10,
2018, briefing on the issue would not have been completed
until shortly before the November 30, 2018 class
certification discovery deadline. Thus, this issue would not
have been resolved before the November 30, 2018 deadline in
any event. Nor has Plaintiff's late filing interfered
with a trial or hearing date. As a result, the Court resolves
this first factor in favor of Plaintiff.
the length of delay does not threaten to severely impact the
judicial proceedings. The length of delay is less than one
month, no trial date has been set and Plaintiff's motion
for class certification is not due until February 28, 2019.
To the extent Plaintiff's failure to timely file his
motion to compel causes a less than one month delay in the
proceedings, given the current posture of this case, the
delay would not constitute a “severe impact.”
Plaintiff has asserted a sufficient reason to excuse the
delay. Plaintiff points out that Judge Ritter had just
decided a nearly identical issue in a related case and argues
that it would have been inefficient to immediately litigate
the same issue without first trying to to resolve it
informally. Doc. 57 at 5. Judge Ritter did, on October 1,
2018, orally grant a motion to compel in a related case that
was almost identical to the one currently before the Court.
See Ulibarri v. Southland Royalty Company, LLC.
16-cv-215-RB-JHR, Doc. 58. Given the similarity in discovery Judge
Ritter ruled Plaintiff could obtain from Southland and the
discovery Plaintiff seeks from Defendant in this case, it was
reasonable for Plaintiff to believe that he could resolve the
issue with Defendant informally and thereby avoid the
expenditure of costs and resources associated with litigating
a motion to compel. Thus, although Plaintiff should have
sought an extension of the motion to compel filing deadline,
Plaintiff's reason for not timely filing his motion to
compel weighs in his favor.
Plaintiff acted in good faith. The Court has no indication
that Plaintiff delayed filing his motion for any reason other
than a desire to avoid litigating an issue Plaintiff
reasonably believed could be worked out informally.
Importantly, “[t]here is no indication that the
tardiness was part of a strategy designed to gain a tactical
advantage.” In re Four Seasons Sec. Laws
Litigation, 493 F.2d 1288, 1290 (10th Cir. 1974);
see also Putnam v. Morris, 833 F.2d 903, 905 (10th
Cir. 1987) (“[S]ome showing of good faith on the part
of the party seeking the enlargement and some reasonable
basis for noncompliance within the time specified is normally
required”) (quoting Winters v. Teledyne Movible
Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985))
(quotation marks and emphasis omitted).
based on Plaintiff's asserted reason for his late filing,
an absence of bad faith, and an absence of prejudice, the
Court finds good cause exists to permit the late filing.
See Four Seasons, 493 F.3d 1288
(“noting that “Rule 6(b)(2) requires both a
demonstration of good faith by the parties seeking the
enlargement and also it must appear that there was a
reasonable basis for not complying within the specified
period” and succinctly finding “[i]nasmuch as
there was no showing of bad faith or prejudice to the
appellant, the trial court's ruling enlarging the time
under Rule 6(b)(2) was not erroneous.”). Although
Plaintiff should have filed a motion to extend the time to
file a motion to compel and is cautioned to avoid future late
filings, the Court finds good cause and excusable neglect to
justify allowing Plaintiff to file his motion to compel late.
The Burden of Producing the Requested Information is
Proportional to the Need for the Information
Court agrees with Judge Ritter's determination that the
addresses and telephone numbers of the royalty owners are
relevant to issues of class certification, including
numerosity and ascertaining which royalty owners are members
of the proposed Class. See Ulibarri v. Southland Royalty
Company, LLC, No. 16-cv-215-RB-JHR, Doc. 63 at 1.
Nonetheless, in addition to arguments Judge Ritter already
considered, Defendant presents the additional argument that
Plaintiff does not need the information requested because it
is duplicative and less current than information Judge Ritter
ordered Southland to provide Plaintiff. Defendant, however,
stops short of representing that, without exception, its
contact information pertains to the same individuals
identified in Southland's discovery. Thus, it appears
that Defendant's information may at least supplement the
information Judge Ritter ordered Southland to provide
Plaintiff. Because Defendant has not asserted, much less
established, that production of the information sought would
be burdensome, it is appropriate for Defendant to provide the
contact information Plaintiff requests.
The Court Will Adopt Judge Ritter's Order with Added
Court agrees with, and adopts with slight modification, Judge
Ritter's Order in Ulibarri v. Southland Royalty
Company, LLC, No. 16-cv-215-RB-JHR, Doc. 63.
Specifically, the Court orders Defendant to produce to
Plaintiffs counsel the addresses and telephone numbers of all
its royalty owners within seven days of the date of this
Order. The Court orders Plaintiff to then observe the same
limitations on the use of this information that Judge Ritter
imposed in his October 16, 2018 Order in Ulibarri v.
Southland Royalty Company. In addition, the Court orders
Plaintiff to cross-reference the information Southland has
provided with information Defendant has provided to determine
if the same individuals are on both lists. If ...