United States District Court, S.D. Texas, Houston Division
In re BP p.l.c. Securities Litigation This document relates to Alameda County Emp. Retirement Assoc.
BP p.l.c. Avalon Holdings Inc.
BP p.l.c. South Yorkshire Pensions Authority
BP p.l.c. Mondrian Global Equity Fund, L.P.
BP p.l.c. Stichting Pensionenfonds Metaal en Techniek
BP p.l.c. HESTA Super Fund
BP p.l.c. New York City Employees' Retirement System
BP p.l.c. Nova Scotia Health Employees' Pension Plan
BP p.l.c. Ark. Teacher Retirement System
BP p.l.c. The Bank of America Pension Plan
BP p.l.c. Deka Investment GmbH
BP p.l.c. DiNapoli
BP p.l.c. IBM United Kingdom Pension Trust Limited
BP p.l.c. Merseyside Pension Fund
BP p.l.c. Pension Reserves Inv. Mgmt. Bd. of Mass.
BP p.l.c. Universities Superannuation Scheme Ltd.
BP p.l.c. Virginia Retirement System
BP p.l.c. Washington State Investment Board
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
the Court are Defendant Robert Malone's Motion for
Reconsideration (Dkt. No. 1584) and Plaintiffs' Cross
Motion for Reconsideration (Dkt. No. 1587). The parties
request reconsideration of the Court's June 30, 2017
Order (Dkt. No. 1581) (“Order”). Mr. Malone
requests reconsideration of the Court's denial of his
motion to dismiss Plaintiffs' claims based on his April
7, 2007 statement in BP Magazine. (Dkt. No. 1584 at
3.) Plaintiffs request reconsideration of the Court's
dismissal of claims based upon statements in the 2006 Annual
Review and a statement by Mr. Malone in BP Magazine.
(Dkt. No. 1587 at 13.) Upon reviewing the submissions of the
parties and the applicable law, the Court finds that the
motions for reconsideration should be denied.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. Shepherd v.
Internat'l Paper Co., 372 F.3d 326, 328 n. 1 (5th
Cir. 2004). Reconsideration motions are generally analyzed
under the standards for motions to alter or amend judgment
under Rule 59(e) or motions for relief from a judgment or
order under Rule 60(b). Id. (citing Hamilton
Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n.
10 (5th Cir. 1998)). If a motion for reconsideration is filed
no later than twenty-eight days after the judgment or order
of which the party complains, it is considered a Rule 59(e)
motion. See id., Fed.R.Civ.P. 59(e). The parties
filed their reconsideration motions within twenty-eight days
of entry of the Court's order, so the Court analyzes the
motions under Rule 59(e).
motion under Rule 59(e) “calls into question the
correctness of a judgment.” Templet v. HydroChem
Inc., 367 F.3d 473, 478-79 (5th Cir. 2004) (citing
In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002)). Relief under Rule 59(e) is appropriate where the
motion clearly establishes either a manifest error of law or
fact or presents newly discovered evidence. Ross v.
Marshall, 426 F.3d 745, 763 (5th Cir. 2005). Relief is
also appropriate when there has been an intervening change in
the controlling law. Schiller v. Physicians Resource
Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). Motions
under Rule 59(e) “cannot be used to raise arguments
which could, and should, have been made before the judgment
issued.” Id. A motion for reconsideration
“is not the proper vehicle for rehashing evidence,
legal theories, or arguments that could have been offered or
raised before the entry of judgment.” Templet,
367 F.3d at 478-79 (citing Simon v. United States,
891 F.2d 1154, 1159 (5th Cir.1990)); Sooter v. Siemens
Indus., Inc., No. 4:14-CV-3637, 2015 WL 1540161, at *2
(S.D. Tex. Apr. 7, 2015). Reconsideration under Rule 59(e) is
an extraordinary remedy that courts should use sparingly.
Templet, 367 F.3d at 479.
DEFENDANT MALONE'S MOTION FOR RECONSIDERATION
Request for Reconsideration of 2007 Statement
June 30 Order, the Court denied Defendants' motion to
dismiss Plaintiffs' claims based on one of Mr.
Malone's April 7, 2007 statements in BP
Magazine. Doc. No. 1581 at 26. The statement at issue
(hereinafter “2007 Statement”) is the following:
“This year, we'll complete a large fibre optic
system in the Gulf to connect all of our deepwater fields to
shore with a high-fidelity data network. This network will
significantly improve safety and operations
efficiency.” Doc. No. 1361 (Alameda Compl.) at ¶
359(c). Defendants ask that the Court dismiss the claims
against Mr. Malone that are based on the 2007 Statement
because Plaintiffs did not allege sufficient facts to support
a conclusion that the statement was false or that Mr. Malone
had the requisite scienter.
Malone has not met the high standard for reconsideration.
Reconsideration is appropriate when there is newly discovered
evidence, there has been an intervening change in the law, or
the motion clearly establishes either a manifest error of law
or fact. Ross v. Marshall, 426 F.3d 745, 763 (5th
Cir. 2005); Schiller, 342 F.3d at 567. Mr. Malone
has neither put forth new evidence nor cited to an
intervening change in law, so the Court has re-examined its
order to determine whether the Order contains a
“manifest error of law or fact.”
Court finds that it has not made a manifest error of law or
fact with regard to falsity or scienter. Plaintiffs have
alleged that Defendants, including Mr. Malone, knew or
recklessly disregarded the fact that BP's process safety
procedures did not adequately address known risks of
deepwater drilling and misrepresented concrete steps
purportedly being taken to increase safety at offshore sites.
Doc. No. 1361 at ¶¶ 127, 360.
Malone also argues that the claims based on the alleged
misstatement should be dismissed because Plaintiffs cannot
demonstrate loss causation. Doc. No. 1584 at 4. The parties
dispute when the fiber optic network was completed, so it
would be premature to dismiss on this basis. Additionally,
this was not raised in the original briefing on the motion to
dismiss. Motions for reconsideration “cannot be used to
raise arguments which could, and should, have been made
before the judgment issued.” Sooter v. Siemens
Indus., Inc., No. 4:14-CV-3637, 2015 WL 1540161, at *2
(S.D. Tex. Apr. 7, 2015) (quoting Ross, 426 F.3d at
763). Similarly, Defendants' arguments regarding the
statute of repose were not raised in the original briefing.
Request for Clarification of Ruling on Section 20(a)
ask the Court to clarify its ruling on Section 20(a) claims
against Mr. Malone and other individual Defendants.
Defendants raised their Section 20(a) arguments in the
briefing on the motion to dismiss, and the Court will clarify
its analysis here.
20(a) of the Exchange Act establishes secondary liability for
persons who control others who violate Section 10(b).
Plaintiffs must show that there was an underlying securities
fraud violation and prove that the controlling person against
whom the Section 20(a) claim has been brought had actual
power over the controlled person and induced or participated
in the alleged violation. In re BP p.l.c. Sec.
Litig., 922 F.Supp.2d 600, 639 (S.D. Tex. 2013);
Dennis v. General Imaging, Inc., 918 F.2d 496, 509
(5th Cir.1990). Section 20(a) claims are subject only to the
pleading requirements of Rule 8. In re BP p.l.c. Sec.
Litig., 922 F.Supp.2d at 640. A plaintiff must plead
facts indicating that defendants not directly involved in the
making of actionable misrepresentations nonetheless
“had the requisite power to directly or indirectly
control or influence corporate policy.” G.A.
Thompson & Co. Inc. v. Partridge, 636 F.2d 945, 958
(5th Cir. 1981). Allegations that defendants participated ...