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Taylor v. Chesapeake Operating Inc.

United States District Court, W.D. Oklahoma

February 11, 2019

DENNIS R. TAYLOR, CYNTHIA R. PARKS, LADONNA M. RILEY, BRENDA S. SIMMONS, And CLINTON L. TAYLOR, Plaintiffs,
v.
CHESAPEAKE OPERATING, INC., Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' Motion to Remand [Doc. No. 6]. Defendant has filed its Response [Doc. No. 8]. The matter is fully briefed and at issue.

         BACKGROUND

         This case concerns mineral interests owned by Plaintiffs. Plaintiffs allege Defendant failed to pay royalties and concealed under payments. Plaintiffs filed their Petition in the District Court of Roger Mills County, Oklahoma, on September 1, 2017, stating claims for: (1) breach of lease; (2) breach of overriding royalty interest; (3) actual and constructive fraud and negligent misrepresentation; and, (4) unjust enrichment. The Petition did not specifically identify any federal question claims.

         On March 1, 2018, Defendant filed a Response to Plaintiffs' Motion for Partial Summary Judgment [Doc. No. 1-6] containing what Plaintiffs interpreted to be a counter-motion for partial summary judgment. Plaintiffs filed a Response to that counter-motion [Doc. No. 1-10] on March 21, 2018, stating that they had “pled, in their Petition, facts in support of actual and constructive fraud, negligent misrepresentation and civil liable [sic] under the Racketeering Influence [sic] and Corrupt Organizations (RICO) Act.” Response to Motion for Partial Summary Judgment at 5. On April 17, 2018, a hearing was held on the motions for summary judgment and both were overruled. Court Minute [Doc. No. 1-13].

         On May 14, 2018, Plaintiffs filed their First Amended Petition [Doc. No. 1-15] amending Count III to specifically identify the Racketeering Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1964, as the statutory basis for that cause of action. Defendant Answered [Doc. No. 1-16] on May 25, 2018. On June 11, 2018, Defendant filed its Notice of Removal in this Court [Doc. No. 1] pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.

         Plaintiffs filed their Motion to Remand on June 27, 2018, asserting that: (1) the Notice of Removal is untimely as it was filed more than thirty (30) days after the filing of the Petition; (2) the Notice of Removal is untimely as it was filed more than thirty (30) days after their Response to Defendant's Motion for Partial Summary Judgment; and (3) Defendant waived removal by seeking summary judgment in state court. Plaintiffs also request an award of their costs and attorneys' fees. Defendant asserts that: (1) the Notice of Removal is timely because the Amended Petition was the first unequivocal notice of removability; (2) it did not waive removal; and, (3) there is no basis for an award of costs and fees to Plaintiffs.

         STANDARD OF DECISION

         “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant” and in the absence of “diversity of citizenship, federal-question jurisdiction is required.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). “The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C.A. § 1446(b)(1). However, “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C § 1446(b)(3).

         Removal statutes are strictly construed and all doubts are to be resolved against removal. Fajen v. Found. Reserve Inc. Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) and Greenshields v. Warren Petroleum Corp., 248 F.2d 61, 65 (10th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957)). The burden of proof for removal jurisdiction is on the party seeking removal. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554, 190 L.Ed.2d 495 (2014).

         In cases of removal based on federal question jurisdiction, removability is governed “by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 392; Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 840 - 41, 109 S.Ct. 1519, 1521, 103 L.Ed.2d 924 (1989) (“[W]hether a case is one arising under [federal law], in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim.”) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 725, 58 L.Ed. 1218 (1914) (alterations in original)).

         The thirty-day clock for removal “does not begin to run until the plaintiff provides the defendant with ‘clear and unequivocal notice' that the suit is removable.” Paros Properties LLC v. Colorado Cas. Ins. Co., 835 F.3d 1264, 1269 (10th Cir. 2016) (quoting Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir. 1998)). The Tenth Circuit is clear that “[i]f the statute is going to run, the notice ought to be unequivocal. It should not be one which may have a double design.” Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1078 (10th Cir. 1999) (quoting DeBry v. Transamerica Corp., 01 F.2d 480');">601 F.2d 480, 489 (10th Cir. 1979)). However, in determining whether removal is timely, “all factual and legal issues must be resolved in favor of the plaintiff.” Dutcher v. Matheson, 733 F.3d 980, 988 (10th Cir. 2013) (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998)).

         DISCUSSION

         The issues before the Court are: (1) from which date did the thirty-day period for removal begin; and, (2) whether Defendant waived ...


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