United States District Court, W.D. Oklahoma
DENNIS R. TAYLOR, CYNTHIA R. PARKS, LADONNA M. RILEY, BRENDA S. SIMMONS, And CLINTON L. TAYLOR, Plaintiffs,
CHESAPEAKE OPERATING, INC., Defendant.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
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.
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.
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].
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.
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.
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).
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).
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)).
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)).
issues before the Court are: (1) from which date did the
thirty-day period for removal begin; and, (2) whether
Defendant waived ...