United States District Court, D. Nevada
In re WESTERN STATES WHOLESALE NATURAL GAS ANTITRUST LITIGATION
WILLIAMS COMPANIES, et al., Defendants. REORGANIZED FLI, INC., et al., Plaintiffs, LEARJET, INC., Plaintiffs,
ONEOK, INC., et al. Defendants. SINCLAIR OIL CORP., Plaintiff,
E PRIME INC., et al. Defendants. SINCLAIR OIL CORP., et al. Plaintiff,
ONEOK ENERGY SERVICES CO., L.P., et al. Defendant. BRECKENRIDGE BREWERY OF COLORADO, LLC, Plaintiffs,
ONEOK INC., Defendants. HEARTLAND REGIONAL MEDICAL CENTER, et al. Plaintiffs,
ONEOK, INC., et al. Defendants. ARANDELL CORP., et al. Plaintiffs,
XCEL ENERGY INC., et al. Defendants. NEWPAGE WISCONSIN SYSTEM INC., Plaintiff,
CMS ENERGY RESOURCE MANAGEMENT CO., et al. Defendants. Nos. 2:03-cv-01431-RCJ-PAL, 2:05-cv-01331-RCJ-PAL, 2:06-cv-00233-RCJ-PAL, 2:06-cv-00267-RCJ-PAL, 2:06-cv-00282-RCJ-PAL, 2:06-cv-01351-RCJ-PAL, 2:07-cv-00987-RCJ-PAL
C. JONES UNITED STATES DISTRICT JUDGE
consolidated cases arise out of the energy crisis of
2000-2002. Plaintiffs (retail buyers of natural gas) allege
that Defendants (natural gas traders) manipulated the price
of natural gas by reporting false information to price
indices published by trade publications and by engaging in
"wash sales." Approximately forty motions are
pending before the Court, including the final group of
dispositive motions before remand to the transferor districts
2003, the Judicial Panel on Multidistrict Litigation
("JPML") transferred seven class action cases from
various districts in California to this District under 28
U.S.C. § 1407 as Multidistrict Litigation
("MDL") Case No. 1566, assigning Judge Pro to
preside. Since then, the JPML has transferred in several more
actions from various districts throughout the United States.
Between 2003 and 2015, Judge Pro ruled on many motions to
remand, to dismiss, and for summary judgment. He also
approved several class settlements. Several parties settled
on their own. One or more of the cases have been to the Court
of Appeals twice and to the Supreme Court once. In 2007, the
Court of Appeals reversed several dismissals under the filed
rate doctrine and remanded for further proceedings. In 2013,
the Court of Appeals reversed several summary judgment
orders, ruling that the Natural Gas Act did not preempt state
law anti-trust claims and that certain Wisconsin- and
Missouri-based Defendants should not have been dismissed for
lack of personal jurisdiction. The Supreme Court granted
certiorari as to preemption under the Natural Gas Act and
affirmed. The case was soon thereafter reassigned to this
Court when Judge Pro retired. The Court has issued several
dispositive orders and has denied class certification in
applicable cases. Eight of the eighteen consolidated cases
remain open, the others having been variously settled,
dismissed, or remanded to state courts.
MOTIONS TO RECONSIDER
Sinclair Oil Corp. asks the Court to correct an alleged
clerical error in the Court's March 30, 2017 order. In
the introduction to its ruling on cross-motions for summary
judgment on the issue of release, the Court wrote that
material issues of fact remained as to whether Sinclair Oil
had received sufficient notice of the settlements in the
NYMEX case. But the Court thereafter closely analyzed the
issue, finding that the release indeed precluded the present
claims and that there had been sufficient notice of the
settlements. Defendant ONEOK Energy Services Co., L.P.
("OESC") has responded that it has no objection to
a clarification to the effect that the Court misspoke in its
introductory remarks but intended to grant its motion (and
the joinder thereto filed by Defendants e prime, inc. and
Xcel Energy Inc.), as indicated in both the analysis
following the introduction and the "conclusion"
section of the order. Defendants are correct. The Court will
amend the previous order under Rule 60(a) to remove the final
sentence of the first paragraph of Part III.B.
SUMMARY JUDGMENT MOTIONS
must grant summary judgment when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is "to isolate and dispose of factually
unsupported claims." Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. "When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial." C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court needn't consider
the nonmoving party's evidence. See Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970). If the moving
party meets its initial burden, the burden then shifts to the
nonmoving party to establish a genuine issue of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the nonmoving party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that "the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial." T. W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass 'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See Anderson,
Ml U.S. at 249. The evidence of the nonmovant is
"to be believed, and all justifiable inferences are to
be drawn in his favor." Id. at 255. But if the
evidence of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, "a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment."
Motions Nos. 2745, 2764
to these motions are due two weeks after completion of
depositions of certain expert witnesses. (See
Orders, ECF Nos. 2786, 2797). Those depositions were expected
to have been completed by March 10, 2017. (See Order
No. 2786). No responses to Motions Nos. 2745 or 2764 appear
to have been filed, however. The Court will therefore deny
those motions without prejudice at this time.
Motion No. 2740
in the '233 Case have moved for summary judgment against
the "full consideration" remedy under Kansas law.
Defendants note that the Kansas Restraint of Trade Act
("KRTA") was amended in 2013 to replace the
"full consideration" measure of damages with a
triple damages remedy. Compare Kan. Stat. Ann.
§ 50-115 (repealed), with Id. § 50- 161(b)
(2013). The question is whether the amendment applies
retroactively to claims arising before the amendment.
Defendants are correct that under Kansas law, changes to
substantive rights apply only prospectively, but changes to
remedies alone apply retroactively:
It is the law of this state that a statute which merely
changes a remedy is not invalid, as there are no vested
rights in any particular remedy. While generally statutes
will not be construed to give them retroactive application
unless it appears that such was the legislative intent,
nevertheless when a change of law merely affects the remedy
or law of procedure, all rights of action will be enforced
under the new procedure without regard to whether they
accrued before or after such change of law and without regard
to whether or not the suit has been instituted, unless there
is a saving clause as to existing litigation.
Jones v. Garrett, 386 P.2d 194, 199 (Kan. 1963);
accord Nitchals v. Williams, 590 P.2d 582, 587 (Kan.
1979). Defendants note that two courts to address the
retroactivity of the repeal of the "full
consideration" remedy have found that the repeal is
retroactive under Kansas law. See In re
Polyurethane Foam Antitrust Litig., 998 F.Supp.2d
625, 640 (N.D. Ohio 2014); Assoc. Wholesale Grocers, Inc.
v. United Egg Producers, No. 10-cv-2171, at 4 (Kan.
Dist. Ct., Wyandotte Cnty. Oct. 3, 2013).
respond that the amendment to KTRA disclaimed any retroactive
effect, i.e., that it contains a saving clause of the type
mentioned by the Jones Court. The Court disagrees.
The saving clause applies only to causes of action
themselves, not to remedies:
K.S.A. 50-163 and the amendments to K.S.A. 50-101 and 50-112
by this act shall be applied retroactively to any choses in
action or defenses premised on any provision of the Kansas
restraint of trade act amended or repealed by this act, and
any such choses in action or defenses that have accrued as of
the effective date of this act shall be abated, but
causes of action that were pending in any court before the
effective date of this ...