-HDY Hardy et al v. Bartmess, No. 1:2009cv00041 - Document 126 (E.D. Ark. 2011)
Court Description: ORDER granting deft's motion to file exhibits under seal 97 ; denying pltfs' first motion to strike 101 ; pltfs' motion for "leave to seal and file under seal exhibits to motion to strike and objections to proposed exhibits offe red by deft in connection with motion for judgment on the pleadings" is granted 102 ; denying pltfs' second motion to strike 107 ; deft's motion to substitute and file substituted Exhibit 1-A under seal is granted 116 . Signed by Magistrate Judge H. David Young on 2/28/11. (vjt)
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-HDY Hardy et al v. Bartmess Doc. 126 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION JAMES HARDY, JR.; HARDY RESOURCES, LLC; B & H RESOURCES, LLC; MARY HARDY; HARDY ENERGY SERVICES, INC.; ELITE COIL TUBING SOLUTIONS, INC.; and NORTHSTAR FARMS, LLC v. PLAINTIFFS NO. 1:09CV00041 DPM/ HDY HELEN BARTMESS, Execut rix of t he Est at e of George Bart mess DEFENDANT ORDER On January 20, 2011, t he defendant filed t he pending mot ion for j udgment on t he pleadings. See Document 94. The defendant accompanied t he mot ion wit h several document s, one of which was an appendix t hat purport ed t o be an abst ract of relevant fact s alleged in t he plaint iffs’ first supplement al, amended, and rest at ed complaint . On January 28, 2011, t he defendant filed t he pending mot ion t o file exhibit s under seal. See Document 97. In t he mot ion, t he defendant asked t o file under seal four document relevant t o t he mot ion for j udgment on t he pleadings. The four document s were: (1) a “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as Exhibit 1; (2) a “ LLC Membership Int erest Purchase Agreement ,” ident ified as Exhibit 2; (3) a “ Buy-Sell Agreement ,” ident ified as Exhibit 3; and (4) an assignment , ident ified as Exhibit 4. Dockets.Justia.com On February 3, 2011, t he plaint iffs filed t wo separat e pleadings. First , t hey filed t he pending mot ion t o st rike and obj ect ions t o t he proposed exhibit s offered by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings. See Document 101. In t he plaint iffs’ mot ion, t hey did not oppose t he defendant ’ s request t o place under seal t he “ Buy-Sell Agreement ,” ident ified as Exhibit 3, or t he assignment , ident ified as Exhibit 4. The plaint iffs did obj ect , however, t o t he request t o place under seal t he “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as Exhibit 1, and t he “ LLC Membership Int erest Purchase Agreement ,” ident ified as Exhibit 2. Wit h regard t o t he “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as Exhibit 1, t he plaint iffs maint ained, int er alia, t hat it is “ not hing more t han t wo pages from t he proj ect draft out line” and “ does not represent an agreement bet ween t he part ies ...” See Document 101 at 2. Wit h regard t o t he “ LLC Membership Int erest Purchase Agreement ,” ident ified as Exhibit 2, t he plaint iffs maint ained t hat it is not a complet e copy of t he “ LLC Membership Int erest Purchase Agreement ” but is inst ead an incomplet e copy of t hat document . The plaint iffs also obj ect ed t o t he appendix filed by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings. They maint ained t hat t he appendix is not “ an agreed summat ion of t he pleadings and is simply defense counsel’ s argument s as t o what t he pleading say.” See Document 101 at 4. The plaint iffs asked t hat t he appendix be st ruck. -2- Second, t he plaint iffs filed t he pending mot ion for “ leave t o seal and file under seal exhibit s t o mot ion t o st rike and obj ect ions t o proposed exhibit s offered by defendant in connect ion wit h mot ion for j udgment on t he pleadings.” See Document 102. The mot ion was virt ually ident ical t o t heir mot ion t o st rike, see Document 101, save t he plaint iffs’ request t o file under seal “ t he deposit ion t ranscript port ions and accurat e copies of Exhibit 8, 8A, and 10 ...” See Document 102 at 3-4. 1 The defendant in t urn filed t wo separat e pleadings on February 4, 2011. The defendant filed a response t o t he plaint iffs’ mot ion t o st rike and a reply t o t he plaint iffs’ obj ect ions t o t he proposed exhibit s offered by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings. In t he defendant s’ response/ reply, t he defendant addressed t he plaint iffs’ obj ect ions t o t he “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as Exhibit 1; t he “ LLC Membership Int erest Purchase Agreement , ident ified as Exhibit 2; and t he appendix filed by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings. Wit h regard t o t he “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as Exhibit 1, t he defendant represent ed t he following: 1 The Court underst ands exhibit 8 and exhibit 8A t o be t he same document s. They are apparent ly t he allegedly incomplet e copies of t he “ LLC Membership Int erest Purchase Agreement ” t hat t he defendant offered during t he deposit ions of James and John Hardy, specifically, Exhibit 8 was offered by t he defendant during t he deposit ion of James Hardy and Exhibit 8A was offered by t he defendant during t he deposit ion of John Hardy. See Document 102 at 2-3. Exhibit 8 and exhibit 8A are apparent ly ident ical t o Exhibit 2 offered by t he defendant in connect ion wit h t he mot ion t o file exhibit s under seal. The Court underst ands Exhibit 10 t o be what t he plaint iffs purport t o be t he complet e copy of t he “ LLC Membership Int erest Purchase Agreement .” It was apparent ly designat ed as Exhibit 10 during t he deposit ions of James and John Hardy. -3- In regard t o Ex. 1 filed under seal, it has come t o t he defendant ’ s at t ent ion t hat he apparent ly failed t o include t he full and complet e document of t he “ Proj ect Proposal” or “ Let t er of Int ent ” in t hat it consist s of t hree pages, t he last of which was signed by plaint iff James Hardy, Jr. and defendant and wit nessed by plaint iff John Hardy and Ed Bell. At t ached heret o is a full and complet e copy of said document which defendant would request t o be subst it ut ed as Ex. 1 under seal. See Document 103 at 2. Wit h regard t o t he “ LLC Membership Int erest Purchase Agreement ,” ident ified as Exhibit 2, t he defendant represent ed, in part , t he following: “ To avoid furt her quibbling and argument s of such a nat ure as how many angels can dance on t he head of a pin, defendant has at t ached heret o as a subst it ut e Ex. 2 under seal, a copy of t he document which plaint iffs refer t o as Ex. 10 of t he deposit ion ...” See Document 103 at 2. Wit h regard t o t he appendix filed by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings, t he defendant represent ed t hat t he appendix cont ains no argument and, even if it does, argument is allowed. 2 The plaint iffs responded by filing a second mot ion t o st rike on February 8, 2011. See Document 107. In t hat submission, t hey obj ect ed t o t he defendant ’ s request t o file under seal t he subst it ut ed Exhibit 1, i.e., t he t hree page “ Let t er of Int ent ” or “ Proj ect Proposal.” The plaint iffs’ maint ained t hat t he document is a sham and but t ressed t hat assert ion wit h affidavit s from James and John Hardy. 2 On February 4, 2011, t he defendant also filed a response t o t he plaint iffs’ mot ion for “ leave t o seal and file under seal exhibit s t o mot ion t o st rike and obj ect ions t o proposed exhibit s offered by defendant in connect ion wit h mot ion for j udgment on t he pleadings.” See Document 104. The defendant ’ s response added lit t le. -4- On February 18, 2011, t he defendant filed a combined response t o t he plaint iffs’ second mot ion t o st rike and a “ mot ion t o subst it ut e and file exhibit under seal.” See Exhibit 116. In t hat submission, t he defendant asked t o replace Exhibit 1 and subst it ut ed Exhibit 1 wit h subst it ut ed Exhibit 1-A and t o file subst it ut ed Exhibit 1-A under seal as an exhibit t o t he mot ion for j udgment on t he pleadings. The Court begins an analysis of t he issues at bar by not ing t hat t wo document s are clearly not in disput e, i.e., t he “ Buy-Sell Agreement ,” ident ified as Exhibit 3; and (4) an assignment , ident ified as Exhibit 4. Those document s will be filed under seal as Exhibit s 3 and 4 t o t he defendant ’ s mot ion for j udgment on t he pleadings. 3 It also appears t hat t he disput e over t he “ LLC Membership Int erest Purchase Agreement ” has been resolved. The defendant has wit hdrawn Exhibit 2 and replaced it wit h subst it ut ed Exhibit 2, which t he defendant represent s t o be t he same document t hat was ident ified as Exhibit 10 during t he deposit ions of James and John Hardy. The plaint iffs cannot now obj ect t o subst it ut ed Exhibit 2/ Exhibit 10 as t hey previously maint ained t hat “ Exhibit 10 was afforded defense counsel as t he act ual, complet e [‘ LLC Membership Int erest Purchase Agreement .’ ]” See Document 102 at 3. The subst it ut ed “ LLC Membership Int erest Purchase Agreement ” will be filed under seal as subst it ut ed Exhibit 2 t o t he defendant ’ s mot ion for j udgment on t he pleadings. 3 The defendant ’ s mot ion for j udgment on t he pleadings was accompanied by four exhibit s t hat were marked Exhibit s A-D. See Document 94. In order t o different iat e bet ween t hose exhibit s and t he exhibit s t he defendant seeks t o now file under seal, t he lat t er exhibit s will be designat ed in a numerical fashion. -5- What , t hen, of t he “ Let t er of Int ent ” or “ Proj ect Proposal,” ident ified as subst it ut ed Exhibit 1-A? Aft er t he submission of t he pleadings ident ified above, t he plaint iffs not ified t he Court t hat t hey have no obj ect ion t o subst it ut ed Exhibit 1-A. Accordingly, subst it ut ed Exhibit 1-A will be filed under seal as subst it ut ed Exhibit 1-A t o t he defendant ’ s mot ion for j udgment on t he pleadings. The plaint iffs also obj ect t o t he appendix filed by t he defendant in connect ion wit h t he mot ion for j udgment on t he pleadings. The Court will not st rike t he appendix as t he plaint iffs request . The Court will give t he appendix t he weight it ult imat ely deserves. The quest ion remains as t o what t o do wit h t he ot her document s t he part ies submit t ed in support of, and in response t o, t he defendant ’ s mot ion t o seal, i.e., original Exhibit 1, subst it ut ed Exhibit 1, original Exhibit 2, and t he plaint iffs’ Exhibit s 8, 8A, and 10 (“ t he addit ional exhibit s” ). Because t he addit ional exhibit s are similar t o t he exhibit s going under seal, t he addit ional exhibit s likely cont ain informat ion t hat should be accorded some prot ect ion. Because t he addit ional exhibit s are a part of t he record, ret urning t hem t o t he part ies is not a viable opt ion. Inst ead, t he Court direct s t he Clerk of t he Court t o also file under seal original Exhibit 1, subst it ut ed Exhibit 1, original Exhibit 2, t he plaint iffs’ Exhibit s 8, 8A, and 10, and any ot her exhibit submit t ed in support of, and in response t o, t he defendant ’ s mot ion t o seal t hat is not subst it ut ed Exhibit 1-A, subst it ut ed Exhibit 2, Exhibit 3, or Exhibit 4. -6- In accordance wit h t he foregoing findings and conclusions, t he Court orders t he following: (1) The defendant ’ s mot ion t o file exhibit s under seal is grant ed. See Document 97. The Clerk of t he Court is ordered t o file t he following document s under seal as exhibit s in support of t he defendant ’ s mot ion for j udgment on t he pleadings: (A) The defendant ’ s subst it ut ed Exhibit 1-A, which is t he t hird “ Let t er of Int ent ” or “ Proj ect Proposal” submit t ed by t he defendant s in connect ion wit h t heir mot ion t o seal. (B) The defendant ’ s subst it ut ed Exhibit 2, which is t he second “ LLC Membership Int erest Purchase Agreement ” submit t ed by t he defendant s in connect ion wit he t heir mot ion t o seal. (C) The defendant ’ s Exhibit 3, which is t he “ Buy-Sell Agreement .” (D) The defendant ’ s Exhibit 4, which is t he assignment . (2) The plaint iffs’ first mot ion t o st rike is denied. See Document 101. (3) The plaint iffs’ mot ion for “ leave t o seal and file under seal exhibit s t o mot ion t o st rike and obj ect ions t o proposed exhibit s offered by defendant in connect ion wit h mot ion for j udgment on t he pleadings” is grant ed. See Document 102. (4) The plaint iff’ s second mot ion t o st rike is denied. See Document 107. (5) The defendant ’ s mot ion t o subst it ut e and file subst it ut ed Exhibit 1-A under seal is grant ed. See Document 116. -7- (6) The Clerk of t he Court shall also file under seal original Exhibit 1, subst it ut ed Exhibit 1, original Exhibit 2, t he plaint iffs’ Exhibit s 8, 8A, and 10, and any ot her exhibit submit t ed in support of, and in response t o, t he defendant ’ s mot ion t o seal t hat is not subst it ut ed Exhibit 1-A, subst it ut ed Exhibit 2, Exhibit 3, or Exhibit 4. The addit ional exhibit s shall be maint ained separat e and apart from subst it ut ed Exhibit 1-A, subst it ut ed Exhibit 2, Exhibit 3, and Exhibit 4. IT IS SO ORDERED t his 28 day of February, 2011. UNITED STATES MAGISTRATE JUDGE -8-
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