Boulter v. Noble Energy, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 20-cv-0861-WJM-SBP
MIKE BOULTER,
BOULTER, LLC,
RALPH NIX PRODUCE, INC., and
BARCLAY FARMS, LLC, on behalf of themselves and classes of similarly situated
persons,
Plaintiffs,
v.
NOBLE ENERGY, INC., and
KERR-MCGEE OIL & GAS ONSHORE, LP,
Defendants.
ORDER DENYING PLAINTIFFS’ MOTION FOR RELIEF FROM THE COURT’S
DISMISSAL ORDER AND JUDGMENT WITHOUT PREJUDICE
Before the Court is Plaintiffs Mike Boulter; Boulter, LLC; Ralph Nix Produce, Inc.;
and Barclay Farms, LLC’s (collectively, “Plaintiffs”) Motion for Relief from the Court’s
Dismissal Order and Judgment Without Prejudice (“Motion”). (ECF No. 60.)
Defendants Noble Energy, Inc. and Kerr-McGee Oil & Gas Onshore, LP’s (jointly,
“Defendants”) filed a response. (ECF Nos. 61.) Plaintiffs filed a reply. (ECF No. 62.)
The parties also filed supplemental briefing in light of the Tenth Circuit Court of Appeals’
ruling in Boulter v. Noble Energy Inc., 74 F.4th 1285 (10th Cir. 2023). (ECF Nos. 68,
69.) For the following reasons, the Motion is denied.
I. BACKGROUND AND PROCEDURAL HISTORY
On February 17, 2021, the undersigned granted Defendants’ motions to dismiss,
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holding that Plaintiffs were required to first present their dispute to the Colorado Oil &
Gas Conservation Commission (“COGCC”), which would determine whether the case
was one involving a bona fide dispute regarding interpretation of a contract. (ECF No.
58 at 10 (citing Colo. Rev. Stat. 34-60-118.5(5.5)) (“Boulter I”). “Only in the event that
the [Commission] finds that such a dispute exists does it decline jurisdiction,” at which
point the parties may proceed to litigation. (Id.) Accordingly, the Court dismissed
Plaintiffs’ action without prejudice for failure to exhaust their administrative remedies.
(Id. at 16.) Notably, Plaintiffs chose not to file a motion for reconsideration or appeal the
Court’s decision to the Tenth Circuit.
Instead, in the years since the Court’s decision in Boulter I, Plaintiffs have filed
three identical lawsuits in the District of Colorado. See Civil Action Nos. 1:21-cv-1346-
RM-KLM (“Boulter II”), 1:21-cv-3500-RM-SKC (“Boulter III”), and 1:22-cv-1843-DDD-
SKC (“Boulter IV”).
In Boulter II, the court rejected Plaintiffs’ argument that the decision of the
Colorado Court of Appeals in Antero Resources Corporation v. Airport Land Partners
Limited, 2021 WL 2365973 (Colo. App. June 3, 2021), aff’d sub nom. Antero Resources
Corp. v. Airport Land Partners, Ltd., 2023 CO 13, 526 P.3d 204 (Colo. 2023), was a
significant intervening change in the law that permitted them to essentially refile their
case, and that case was also dismissed. (Boulter II, ECF No. 47 at 1–2 (“But nothing in
that decision refutes the central rationale of Judge Martinez’s Order, which is that the
COGCC determines in the first instance whether it will decline jurisdiction because a
bona fide dispute exists.”).)
In Boulter III, the court again dismissed the case, declining “to allow Plaintiffs a
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third bite because their arguments are not new, and nothing of significance has
changed.” (Boulter III, ECF No. 23 at 2.)
In Boulter IV, the court yet again dismissed Plaintiffs’ case as precluded by res
judicata. (Boulter IV, ECF No. 41 at 4.) Importantly, in dismissing Boulter IV, the court
explained why the Colorado Supreme Court’s decision in Antero did not constitute a
significant intervening change in the law.
The problem, though, is that (as Judge Moore recognized in
Boulter II) the issue that was dispositive in Boulter I was not
at issue in either iteration of Airport Land. Boulter I held that
Plaintiffs were required to first present their dispute to the
Colorado Oil & Case Conservation Commission which would
determine whether the case was one involving a “bona fide
dispute regarding interpretation of a contract.” Boulter I at
10 (citing Colo. Rev. Stat. 34-60-118.5(5.5)). “Only in the
event that the [Commission] finds that such a dispute exists
does it decline jurisdiction” at which point the parties may
proceed to litigation. Id.
That was not in question in Airport Land. What both the
court of appeals and the supreme court addressed there was
what constitutes such a bona fide dispute regarding
interpretation of a contract. See Antero Resources Corp.,
2023 WL 2640471 at *2. The plaintiff in that case had in fact
taken its dispute to the Commission, and the question was
whether the Commission was right that the matter was not
one of contract interpretation and therefore properly within its
jurisdiction. Id. In other words, Airport Land is about the
second step of the process described in Boulter I. But
Boulter I turned on the first step: presenting the dispute to
the Commission for the initial determination. That the
Colorado Supreme Court held that at the second step that
the dispute was a matter of contract interpretation so the
Commission should have declined jurisdiction does not say
anything about whether Boulter I was wrong about the first
step. Airport Land is therefore not a significant intervening
change in the law,[] and this case is barred by res judicata.
The remainder of Plaintiffs’ arguments are attempts to
explain why Boulter I was wrong, and exhaustion was not
required or would be futile. See Doc. 32 at 14-18. But even
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if I thought Boulter I (and Boulter II, and Boulter III) was
wrongly decided, I would be compelled to grant the motion to
dismiss this case as precluded by res judicata. A party who
believes a district court wrongly dismissed its case has a
number of options: it can ask for reconsideration or it can
appeal, for example, and have the result reversed. Filing the
same case three more times is not one of those options.
(Boulter IV, ECF No. 41 at 3–4.)
Plaintiffs appealed Boulter II, Boulter III, and Boulter IV. On July 27, 2023, the
Tenth Circuit affirmed the dismissals of Boulter II and Boulter III based on res judicata.
(ECF No. 64.) 	The Tenth Circuit analyzed whether an exception to res judicata
advanced by Plaintiffs—an alleged change in law as a result of a Colorado Court of
Appeals decision in Antero—prevented application of Boulter I.1 The Tenth Circuit
concluded that even if it overlooked the unpublished and thus non-binding nature of the
Colorado Court of Appeals’ decision in Antero, the panel could not see how it changed
Colorado law. (ECF No. 64-1 at 17.) Instead, the Tenth Circuit characterized the
Colorado Court of Appeals’ decision in Antero as merely deciding whether the COGCC
correctly concluded it lacked jurisdiction under that case’s facts. (Id.) Accordingly, that
“fact-based inquiry” alone did not demonstrate a change in the law, and the court found
that Boulter I precluded Plaintiffs from relitigating exhaustion and futility in Boulter II and
Boulter III. Because Plaintiffs failed to exhaust their administrative remedies with
COGCC, the Tenth Circuit concluded that the district court lacked subject matter
jurisdiction over both Boulter II and III.
On April 13, 2023, Plaintiffs appealed the dismissal of Boulter IV, and that appeal
1 The Colorado Supreme Court had not yet issued its opinion affirming the Colorado
Court of Appeals’ opinion at the time the Tenth Circuit ruled, and therefore, the Tenth Circuit
only addressed the Colorado Court of Appeals’ decision in affirming Boulter III and Boulter IV.
(ECF No. 64-1 at 12.)
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remains pending before the Tenth Circuit. (Boulter IV, ECF No. 43.)
Not two weeks later, on April 25, 2023, Plaintiffs filed the instant Motion,
requesting Rule 60 relief from this Court. (ECF No. 60.)
II. LEGAL STANDARD
“On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for [six] reasons[.]” Fed. R.
Civ. P. 60(b). The first five reasons are scenarios that arise with enough frequency to
be specifically called out (e.g., excusable neglect, newly discovered evidence,
satisfaction of judgment). See Fed. R. Civ. P. 60(b)(1)–(5). Then Rule 60(b)(6) permits
a court to grant relief for “any other reason justifying relief.” While relief under the five
enumerated clauses of Rule 60(b)(1)–(5) is “extraordinary and may only be granted in
exceptional circumstances,” “Rule 60(b)(6) relief is even more difficult to attain and is
appropriate only when it offends justice to deny such relief.” Yapp v. Excel Corp., 186
F.3d 1222, 1231–32 (10th Cir. 1999).
Ultimately, all Rule 60(b) motions are addressed to the sound discretion of the
trial court. Zimmerman v. Quinn, 744 F.2d 81, 82 (10th Cir. 1984).
III. ANALYSIS
Plaintiffs argue that the Court should grant relief under Rule 60(b)(4), (5), or (6).
(ECF No. 60 at 11–15.) The Court rejects their arguments for the following reasons.
A. 	Rule 60(b)(4)
Plaintiffs argue that the Court’s decision is void; specifically, they argue that the
decision was “inconsistent with due process, because it prevented Plaintiffs from having
a court of competent jurisdiction in which to litigate their claims, depriving Plaintiffs of an
opportunity to be heard on the merits of their case.” (ECF No. 60 at 12.) They contend
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that the Court deprived them of “any opportunity to have their claims heard.” (Id.)
Not so. “Relief for lack of due process is not appropriate in a case in which the
district court has not deprived a party of ‘notice, hearing, or other fundamental
constitutional rights. . . .’” Wilson v. Reid, 838 F. App’x 351, 355 (10th Cir. 2020)
(citation omitted). According to the Supreme Court, “’[a] judgment is not void,’ for
example, ‘simply because it is or may have been erroneous.’” United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 270–71 (2010) (quoting Hoult v. Hoult, 57 F.3d
1, 6 (1st Cir. 1995) (additional citations omitted)). “Similarly, a motion under Rule
60(b)(4) is not a substitute for a timely appeal.” Id. (citing Kocher v. Dow Chemical Co.,
132 F.3d 1225, 1229 (8th Cir. 1997)); see also Matter of Novoa, 690 F. App’x 223, 227
(5th Cir. 2017) (rejecting Rule 60(4)(b) motion partially on basis that party did not
appeal, and the court will not allow litigants to use Rule 60(b)(4) as substitute for a
direct appeal). “Instead, Rule 60(b)(4) applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional error or on a violation of
due process that deprives a party of notice or the opportunity to be heard.” Id. (citing
United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (additional
citations omitted)). For a judgment to be void under Rule 60(b)(4), the entering court
must have been powerless to enter the judgment at the time it was entered. V.T.A., Inc.
v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979).
The Court finds that its February 17, 2021 Order is not void. As Defendants
explain, the Court would have needed to deprive Plaintiffs of their due process rights in
the issuing of the order. (ECF No. 61 at 9.) However, even Plaintiffs do not argue in
their Motion that the Court’s Order was void ab initio or that the Court failed to give them
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notice and an opportunity to be heard on the jurisdictional dispute between the parties.
Plaintiffs had such an opportunity, which they took advantage of in litigating Defendants’
motions to dismiss. They also had the opportunity to appeal the Court’s Order, which
they decided not to do. Cf. Johnson v. Spencer, 950 F.3d 680, 698 (10th Cir. 2020)
(“Even assuming that such a due-process argument is cognizable under Rule 60(b)(4),
we conclude that Mr. Johnson waived it by abandoning it in his direct appeal[.]”).
This Court’s judgment was not void when entered, and the Court did not violate
Plaintiffs’ due process rights. To the extent Plaintiffs contend that the Court’s Order was
erroneous, the Supreme Court has found that even such error would not render the
judgment “void” under Rule 60(b)(4). Espinosa, 559 U.S. at 270–71. And Plaintiffs
cannot “use Rule 60(b)(4) to circumvent an appeal process they elected not to follow.”
Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005). Accordingly, the Court denies the
Motion under Rule 60(b)(4.)
B. 	Rule 60(b)(5)
Rule 60(b)(5) allows a district court to grant relief from a final order if “it is no
longer equitable that the judgment should have prospective application.” Fed. R. Civ. P.
60(b)(5). Invoking this portion of Rule 60, Plaintiffs contend that “applying the judgment
prospectively is no longer equitable.” (ECF No. 60 at 14.) Plaintiffs “believe this case
presents a unique set of circumstances which requires a more liberal reading of Rule
60(b)(5) than has historically been applied, especially in light of the equitable
considerations embodied directly within Rule 60(b)(5).” (Id. at 15.)
Plaintiffs concede that they “do not believe Colorado law surrounding resolution
of royalty underpayment claims, and the corresponding jurisdiction of the courts and the
Commission has ‘changed’ per se[.]” (Id. at 14.) Nevertheless, they argue that the
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Colorado Supreme Court’s opinion resolves any doubt that they cannot resolve their
claims before the COGCC because it has no jurisdiction to hear them. (Id.) Further,
they explain that other District of Colorado judges have “prospectively applied to prevent
Plaintiffs from having their claims heard due [to] repeated reliance on this Court’s
February 17, 2021 dismissal Order.” (Id. (citing Boulter II, ECF No. 47; Boulter III, ECF
No. 23; Boulter IV, ECF No. 41).) Thus, according to Plaintiffs “[t]he alternative result is
that Plaintiffs will have no forum in which to litigate their royalty underpayment claims
against Defendants, an inexplicable inequity.” (Id.)
The Court determines that Rule 60(b)(5) does not provide the relief Plaintiffs
seek. Other courts have found that this provision is limited to orders like “injunctions
and consent decrees that involve long-term supervision of changing conduct or
conditions.” See, e.g., Comfort v. Lynn School Committee, 560 F.3d 22, 28 (1st Cir.
2009). Dismissals without prejudice do not have the “prospective application”
contemplated by Rule 60(b)(5). See Picco v. Global Marine Drilling Co., 900 F.2d 846,
851 (5th Cir. 1990) (dismissal without prejudice for forum non conveniens not
prospective for purposes of Rule 60(b)(5)).
Accordingly, the Court’s judgment dismissing Plaintiffs’ claims without prejudice
does not have prospective application in the unique manner which Plaintiffs argue. To
the contrary, the Court’s judgment applies “prospectively” only in the sense that “it
precludes relitigation of the issues decided, which is clearly not enough.” Id.
Defendants correctly point out that Plaintiffs fail to cite any authority supporting their
apparently novel application of Rule 60(b)(5). (ECF No. 61 at 11.)
“Having failed to appeal” this Court’s Order, Plaintiffs “cannot correct alleged
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errors under the guise of a 60(b)(5) motion.” Lightfoot v. Union Carbide Corp., 1997 WL
752357, at *3 (S.D.N.Y. Dec. 2 1997) (citing Cruickshank & Co., Ltd. v. Dutchess
Shipping Co., 805 F.2d 465, 468 (2d Cir. 1986)); see also Title v. United States, 263
F.3d 28, 31 (9th Cir. 1959) (expressly recognizing that the underlying judgment was
erroneous, yet denying Rule 60(b)(5) relief because the error should have been raised
in a direct appeal). Accordingly, the Court denies the Motion under Rule 60(b)(5).2
C. 	Rule 60(b)(6)
Plaintiffs argue that “[t]he reality of this unfortunate situation is, Plaintiffs have
been wholly precluded from prosecuting the merits of their breach of contract claims
against Defendants for more than 3 years, and will continue to be precluded from
having their day in court unless and until this Court grants relief from its prior 2021
dismissal Order.” (ECF No. 60 at 9–10.) They ask that the Court liberally interpret Rule
60 because the facts in this case are “exceptional.” (ECF No. 68 at 4.)
According to the Tenth Circuit, Rule 60(b) relief “is extraordinary and may only be
granted in exceptional circumstances.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d
1281, 1289 (10th Cir. 2005) (quoting Servants of Paraclete v. Does, 204 F.3d 1005,
1009 (10th Cir. 2000)). “Parties seeking relief under Rule 60(b) have a higher hurdle to
overcome because such a motion is not a substitute for an appeal.” Id. Rule 60(b)(6)
“is appropriate only when it offends justice to deny such relief.” Yapp, 186 F.3d at 1232
(citation omitted).
2 Rule 60(c)(1) requires that Rule 60(b)(5) and (6) motions be brought in a “reasonable
time.” “[W]hat constitutes ‘reasonable time’ for a filing under Rule 60(b) depends on the facts of
each case.” Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir.
2004). Over two years have passed since the undersigned entered judgment in this case, and
other than their failure to obtain the relief they seek from other judges in this District, Plaintiffs
offer no explanation concerning why the timing of this Motion is reasonable under Rule 60(c)(1),
which is yet another reason to deny the Motion. (See ECF No. 61 at 10 n.3.)
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Plaintiffs’ argument that the Colorado Supreme Court’s decision undeniably
supports their position is without merit. United States District Judges Raymond Moore
and Daniel Domenico have interpreted the Colorado Court of Appeals’ and the Colorado
Supreme Court’s decisions in Antero and have determined that “the issue that was
dispositive in Boulter I was not at issue in either iteration of Airport Land.” (Boulter IV,
ECF No. 41 at 3.) Moreover, Plaintiffs’ argument that they are entirely foreclosed from
relief if this Motion is not granted is without merit. As Defendants point out, if Plaintiffs
are successful in their appeal of Boulter IV, the merits of their claims could be decided
on remand, refuting their argument that denial of the instant Motion would mean their
breach of contract claims will never be heard on the merits. (ECF No. 69 at 4 (citing
ECF No. 62 at 3).)
The Court agrees with Defendants’ contention that Plaintiffs are in their current
predicament based on their own “calculated choices.” (ECF No. 61 at 13.) As one
court in the Second Circuit succinctly stated, “a Rule 60(b) motion is no substitute for a
direct appeal of an allegedly erroneous judgment.” Lightfoot, 1997 WL 752357, at *3
(citation omitted). Plaintiffs argue that they had “more than a good faith basis not to
appeal, but rather, to refile in this Court, to preserve their claims, all the while also
seeking a jurisdictional determination from the Commission.” (ECF No. 68 at 5.)
What Plaintiffs fail to acknowledge is that while of course they were free to
choose how to litigate their claims, they are also bound by their strategic decision to
refile their case three different times rather than to appeal Boulter I. As Defendants
contend, they are here “because of their failure to appeal the Court’s dismissal and their
decision to engage in three years of procedural gymnastics to avoid exhausting their
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administrative remedies.” (ECF No. 61 at 13.) Particularly in light of the fact that
Plaintiffs have an appeal pending in the Tenth Circuit in Boulter IV, the Court finds that
Plaintiffs are not entitled to relief under Rule 60(b)(6).
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS that Plaintiffs Mike Boulter;
Boulter, LLC; Ralph Nix Produce, Inc.; and Barclay Farms, LLC’s Motion for Relief from
the Court’s Dismissal Order and Judgment Without Prejudice (ECF No. 60) is DENIED.
This case remains closed.
Dated this 22 nd day of November, 2023.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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