Concededly unencumbered by research, I have the following preliminary
thoughts, some of which already had been expressed by David:


1.  In the context of a Rule 9 (b) motion, ordinarily the case is not
dismissed.  If the motion is granted, the plaintiff is usually given 20 or
30 days to replead.  The case remains on the docket.  I think that's what
happened on the first 9(b) conspiracy motion in the Lufkin oil case.   While
it is possible to obtain a Rule 9(b) dismissal with prejudice, that is
unlikely here in the Wright case.  Truth be told, I think that Downes could
give even Grynberg one more chance to replead.

2.   Also, the government has already intervened in part in the Wright case.
So even a dismissal of the relator's claims would leave the case in Judge
Downes' court.   Wright would have to move to sever, seek some type of Rule
54 (b) relief, or file some other motion to get out from under the existing
case -- short of filing a whole new lawsuit.

3.  Filing a new lawsuit creates limitations problems of all kinds for him.
At a minimum, he would lose more than four years of claims.

4.  A new lawsuit has "first to file" problems.  Grynberg and Osterhoudt
would be ahead of him as to some claims.  Also, remember the Perry case.  It
was transferred from New Mexico to Lufkin only recently, the MDL tag-along
notice was filed even more recently, and the case is not yet in Downes'
court.  Perry is apparently a relatively attractive relator who actually has
some first hand knowledge (at least as to Burlington).  But the government
apparently decided to stick with Wright because he was so far ahead of
Perry.   Hosie likely would be aware of the risk of the government
reconsidering the decision if Wright had to start all over.

5.  A new complaint has obvious public disclosure and original source
problems for Wright.  He would be starting all over filing material evidence
when the government already has complaints on file.

6.   Even if everything in Judy's hypothetical happened, there still would
some non-measurement issues in Downes' court.  The transportation allowance
and condensate claims (there may be one other) are not covered by the
government's motion to dismiss in the Grynberg case.  Thus, there would
still be an argument in support of MDLing a new case.  A less strong
argument, I recognize.

7.   Filing a new suit would be a high risk tactical move which likely would
anger Downes, the MDL Panel, and perhaps even Hannah.

8.   I do not favor a Rule 12(e) motion for a more definite statement.  The
case law is much different than under 9(b), or even 8(a).  Also, I believe
that it shows weakness.

9.  In short, I don't see a great risk of filing a Rule 9(b) motion.
However, what this points out (and thanks for flagging it) is that we must
be continually alert not to do anything now or later that would allow Wright
or the government to go to Downes and ask him to transfer the case back to
Lufkin.  While they can always file such a motion based on the boilerplate
language in the MDL order,  we should not say anything that will make the
Wright allegations seem so different from the Grynberg and Quinque
allegations that such motion might be taken seriously by Downes.


FINALLY, SORRY FOR THE LENGTH OF THIS E-MAIL.











-----Original Message-----
From: Judith.Matlock@dgslaw.com [mailto:Judith.Matlock@dgslaw.com]
Sent: Wednesday, October 25, 2000 3:26 PM
To: steve_williams@eogresources.com; apickens@gibbs-bruns.com;
breasoner@gibbs-bruns.com; mbeatty@beattylaw.com; ctetrault@velaw.com;
david_zott@chicago.kirkland.com
Subject: Back to East Texas?


Steve Williams has asked the question of whether Wright and the US could get
back to East Texas if (i) Judge Downes grants the Wright defendants' Motion
to Dismiss for Failure to Plead Fraud With Particularity but gives Wright
leave to amend, (ii) Judge Downes dismisses Grynberg with prejudice (since
this is Grynberg II and he has already had a second chance), and (iii) after
(ii), Wright, instead of amending in Wyoming, simply files a new complaint
in East Texas (with no pending Grynberg complaint to MDL him back to
Wyoming).  We are looking into this question and thought you might want to
as well.  Are defendants able to get a dismissal with prejudice if a
plaintiff who has been granted leave to amend chooses not to amend?  Would a
better course of proceeding be to file a Motion for a more definite
statement for failure to plead fraud with particularity so that the relief
granted would be an order to plead more definitely rather than an order
granting dismissal (with leave to amend).  If Wright then did not plead with
particularity, a motion to dismiss with prejudice or even a motion for
judgment o the pleadings could be filed.  Your thoughts would be
appreciated.

 - C.DTF