Browder et al v. X T O Energy Inc

Filing 179

MEMORANDUM ORDER granting 71 Anadarko's Motion to Dismiss. All claims against Anadarko are hereby dismissed with prejudice. XTO's Motion to Dismiss [Record Document 67] is GRANTED, and all claims against XTO are hereby dismissed with prej udice. Beverly Miller's adopted motion to dismiss is hereby GRANTED, and all claims against Beverly Miller are hereby dismissed with prejudice. The following motions are DENIED: [Record Documents 79,81,85,87,89,92,93,98,100,108,113-116,119,124,126,135-142,143-149,153-166]. Any other pending motions by Plaintiffs directed towards Anardarko or XTO are likewise DENIED as moot. Signed by Judge Elizabeth E Foote on 3/11/2013. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

DARRYL KEITH BROWDER, ET AL

CIVIL ACTION NO. 5:11-CV-01428

VERSUS

JUDGE ELIZABETH ERNY FOOTE

XTO ENERGY INC.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
In this case, Plaintiffs appearing pro se have lodged a number of claims premised
on Defendants’ alleged interference with Plaintiffs’ minerals rights. Defendants
Anadarko Petroleum Corporation (“Anadarko”) and XTO Energy Inc. (“XTO”) have filed
motions to dismiss under Rule 12(b)(6). [Record Documents 71 and 67]. Defendants
argue that Plaintiffs’ pleadings are unintelligible and therefore fail to state a plausible
claim for relief. Plaintiffs have filed an exceptional number of motions. [Record
Documents 79, 81, 85, 87, 89, 92, 93, 98, 100, 108, 113-16, 119, 124, 126, 135-37,
139-49, and 153-166]. The Court has previously encouraged Plaintiffs to obtain
counsel, stayed this case to allow Plaintiffs adequate time to attempt to obtain counsel,
and given Plaintiffs the opportunity to restate their claims in a clearer manner in order
to avoid previous motions to dismiss. [Record Documents 21 and 52]. The Court will
now take up the pending motions to dismiss.
I.

Applicable Law

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of any claim that
fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
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order to survive a Rule 12(b)(6) motion to dismiss, a “complaint must allege sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.” Hershey
v. Energy Transfer Partners, L.P, 610 F.3d 239, 245 (5th Cir. 2010). While a complaint
attacked by a Rule 12(b)(6) motion need not contain detailed factual allegations, it must
at least allege plausible grounds from which one could infer that the elements of the
claim can be made out. Bell Atlantic Co. v. Twombly, 550 U.S. 544, 556 (2007); In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). That is, the
complaint must allege “enough fact to raise a reasonable expectation that discovery will
reveal evidence of [every element of the claim].” Bell Atlantic Co., 550 U.S. at 556.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The Court
must not, however, convert this “plausibility” requirement into an analysis of whether
the non-moving party is likely to succeed on the merits. Bell Atlantic Co., 550 U.S. at
556 (“of course, a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.”) (citations omitted). Rule 8(e) provides that “[p]leadings must be construed
as to do justice.” Pro se pleadings must be treated liberally, and dismissal
under Rule 12(b)(6) is generally disfavored. U.S. v. Robinson, 78 F.3d 172, 174 (5th Cir.
1996); Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir. 2004). As this case is
before the Court under diversity jurisdiction, the Court must apply the substantive law
of the forum state. Bradley v. Allstate Ins. Co., 620 F.3d 509, 517 n.2 (5th Cir. 2010)
(citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
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II.

Plaintiff’s Claims

As ordered by the Court, Plaintiffs have filed a more definite statement of their
claims. [Record Document 63]. This pleading was docketed as an amended
complaint. In this case, the Court must walk a fine line between treating pro se
pleadings liberally and avoiding the unnecessary expenditure of judicial resources by
effectively acting as advocate for the Plaintiffs. In this case, were the Court to attempt
to piece together a coherent claim from all of Plaintiffs’ pleadings, the Court would be
effectively acting as Plaintiff’s counsel which would be both inappropriate in our
adversarial system and a waste of judicial resources. On the other hand, were the
Court to construe Plaintiffs’ pleadings too narrowly, the Court would be unduly inhibiting
access to the courts by pro se litigants. In order to find a middle ground between these
two extremes to enable the Court to rule on the pending motions to dismiss, the Court
will consider only those pleadings that are coherent and legible and that give a
reasonably clear statement of Plaintiffs’ claims without requiring undue interpretive
work by the reader. This standard is met only by Plaintiffs’ initial response to the first
motion for more definite statement and Plaintiffs’ amended complaint. [Record
Documents 17 and 63].
A.

Anadarko

The only section of Plaintiffs’ amended complaint that mentions Anadarko reads
as follows:
THE WAYS IN WHICH BOTH XTO AND ANADARKO HAVE INTERFERED WITH
THOSE RIGHTS; they violated plaintiffs’ GRAVEL RIGHTS,. AND SOLID MINERAL
RIGHTS, SAND AND SUBSURFACE AND TRESPASS RIGHTS,.AND
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CONSTRUCTIVE PRODUCTION” & ROYALTY PAYMENT! AND SHUT-IN
RIGHTS,.AND COMPENSATORY ROYALTY PAYMENTS RIGHTS,. AND PLAINTIFF’S
SERVITUDE RIGHTS, AND OIL AND GAS RIGHTS,.AND JUVENILE MINERAL
RIGHTS,.AND SALT MINERAL RIGHTS,.AND SULPHUR RIGHTS, AND EGRESS
AND INGRESS RIGHTS,.AND DIVISION ORDER RIGHTS, AND CONTRACT
RIGHTS, AND LEASE-hold, and title rights,. [sic]
[Record Document 63, pp.1-2].
Plaintiffs do not mention any Anadarko wells that are on Plaintiff’s property, or any
other acts or omissions of Anadarko that support the above claims. Conclusory
recitation of the elements of a cause of action do not state a claim for relief that is
plausible on its face. Bell Atlantic Co. 550 U.S. at 555. A fortiori, conclusory recitation
of the names of rights accompanied by a statement that a defendant violated those
rights will not state a claim for relief. Because Plaintiffs have failed to allege any
connection between Anadarko and their alleged property rights, their claims against
Anadarko are implausible and must be dismissed under Rule 12(b)(6). Accordingly,
Anadarko’s Motion to Dismiss [Record Document 71] is hereby GRANTED.
B.

XTO

In the first three pages of their amended complaint, Plaintiffs allege that
damages should be awarded against XTO because:
1)

Plaintiffs are the sole owners of the mineral rights located in the following
five areas of Bossier and Webster Parishes:
a)

Section 16, Township 22 North, Range 11 West. The Court is
assuming this section is located in Bossier Parish;

b)

Section 26, Township 22 North, Range 11 West. The Court is

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assuming this section is located in both Bossier Parish and Webster
Parishes;
c)

Section 28, Township 22 North, Range 10 West. The Court is
assuming this section is located in Webster Parish;

d)

Section 32, Township 22 North, Range 120 West. This description
appears to be an error in that there is no “Range 120 West” in
either parish.

e)

Section 32, Township 22 North, Range 10 West. The Court
assumes this section is located in Webster Parish;

2)

a prior mineral servitude burdening all these properties has terminated
through prescription for non-use; and

3)

XTO operates three gas wells in the GRAY RA SUC unit: RH Curry; Antrim
Trust; and Browder Estate #1 Alt.

Plaintiffs state that they own these mineral rights by virtue of the fact that they
ARE THE HEIRS, OF JOHNNY MAC BROWDER,. AND KEATHER BROWDER AND
WESLEY BROWDER, SR. AND PASSETT WILLIS A/K/A ETTA BLACKSHIRE WILLIS
BROWDER, .MS RUBY SUE BROWDER, WAS MARRIED TO JOHNNY MAC
BROWDER, AFTER HIS DEATH AUGUST 14, 1976 in POLK COUNTY, IOWA; SHE
WAS INTITLED TO INTEREST IN THESE PROPERTIES, AND MINERALS 100%
interest,. [sic]
[Record Document 63, p.1].
Plaintiffs do not further explain the connection between their heirs and these properties.
Reading these first three pages liberally, Plaintiffs’ only non-conclusory
allegations against XTO are that they operate three wells that have some connection

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with the label “GRAY RA SUC,” and the names of the wells are “RH Curry,” “Antrim
Trust,”and “Browder Estate #1 Alt.” Plaintiff’s only other mention of specific wells, in
their response to the first motion for more definite statement, makes clear that the XTO
wells at issue are related somehow to Section 26, Township 22 North, Range 11 West,
in Bossier Parish:
THE PLAINTIFF, AS DARRYL KEITH BROWDER, WENT TO SEE SECTION 27 ON
THE 4th OF JULY, 2011, THERE IS A GAS WELL ON SECTION 26, WITH PIPES
LINES UNDER GROUND GOING TO OTHER GAS WELLS ON THE PROPERTY. AS
SECTION 26, TOWNSHIP 22 NORTH, RANGE 11 WEST, IN BOSSIER PARISH,
LOUISIANA. 44 ACRES IN ETTA BLACKSHIRE, WILLIS, BROWDER, NAME. ON
THE DEFENDANT XTO ENERGY INC. NOTICE OF REMOVAL ON PAGE(3). IT
STATE THAT NONE OF THESE 8 WELLS ARE LOCATED IN SECTION 26, BUT
NEARLY ALL OF SECTION 26 IS POOLED INTO THE SOUTH SEREPTA UNIT. US
PLAINTIFF’S ET AL, IS MAKING A CHARGE OF FRAUD, AND A CHARGE OF
DECEIVE, AS IN DECEIVING, DECEIVED),.TO MISLEAD THE MIND OF; TO
IMPOSE ON; TO DELUDE, TO FRUSTRATE(HOPES,ETC.). A DECEIVER, ONE WHO
DECEIVES. LIKE XTO ENERGY INC. EMPLOYEE, AS MARTHA ENGLISH,
THEREFORE, THIS ALSO BURDENING ALL PORTIONS OF THIS 44 ACRE TRACT
HAS TERMINATED THROUGH FRAUD, FALSE REPORT, DECEIVING. [sic]
[Record Document 17, page 3].
Thus, read their pleadings liberally, Plaintiffs allege that they own mineral interests in
the named wells in Bossier Parish, and that XTO’s operation of wells infringes on those
interests.
Plaintiffs have attached a letter to their pleading, however, that contradicts these
allegations. The letter, written by an attorney retained presumably by the Plaintiffs to
determine the validity of their claims, asserts that Plaintiffs do not own any mineral
interests in the Bossier Parish properties. [Record Document 63, p. 7]. The attorney
concludes that the only property in Bossier Parish having anything to do with this suit is

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located in SW 1/4 of SE 1/4 of Section 26, Township 22 North, Range 11 West.1 Id. at
7-9. It is the attorney’s opinion that Plaintiffs’ ancestors “[own] no interest in the oil,
gas and other minerals underlying this Tract.” Id. at 7. The attorney explains that he
arrived at this conclusion by examining the Conveyance records of Bossier Parish which
indicate that on July 24, 1948 Plaintiffs’ ancestors entered into a mineral lease with an
individual named Sam York. Relatively soon thereafter, Keather Browder, Plaintiffs’
ancestor, executed three mineral deeds, recorded in Conveyance Book 247 at pages
561, 571 and 637, conveying all his interest in the oil, gas, and other minerals under
the land in question to L.L. Robinson. Id. at 8. The attorney further states that “I am
informed that since the initial production in 1953, there has been continuous production
from a well or wells or property unitized therewith to the present date.” Id.
This letter attached to their amended complaint renders the claims premised on
XTO’s interference with Plaintiffs’ mineral rights in Bossier Parish facially implausible.
This is not to say that Plaintiffs are unlikely to prove these claims, but rather that what
Plaintiffs allege in their pleadings with regard to their mineral rights claim is
contradictory and thus by definition cannot be proved. The notice pleading standard

1

As XTO points out, the author appears to have made a typographical error in
writing “section 16" instead of “section 26." The “RE:” line at the top of the letter
indicates that the subject of the letter reads “Ownership of Oil, Gas and other Minerals
under SW 1/4 of SE 1/4 of Section 26, Township 22 North, Range 11 West, Bossier
Parish, Louisiana.” [Record Document 62, p.7]. The Court reads the letter to refer to
section 26. This reading is consistent with Plaintiffs’ allegation in their amended
complaint and their response to the first motion for more definite statement that the
wells in question are related to Section 26, Township 22 North, Range 11 West, Bossier
Parish.
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and the requirement that pro se pleadings be read liberally do not extend so far as to
require Defendants to submit to discovery on such facially implausible claims.
In a later filing, Plaintiffs appear to explain that they actually disagree with the
conclusions of the title opinion:
PLAINTIFF, NOW WANT TO TALK ABOUT THIS AMENDED COMPLAINT WHICH
ADDS MULTIPLE TRACTS OF LAND, AND WHICH PLAINTIFF, ATTACHED AN
EXHIBIT APPEARING TO BE A LEGAL OPINION THAT REALLY LOOK LIKE ITS
CONTRADICTING THE PLAINTIFF, ALLEGATIONS ASSERTED WITHIN THE
AMENDED COMPLAINT. PLAINTIFF, OBJECT TO SOMETHINGS IN THE LETTER
OF OPINION. RELEVANT, HERESAY, AND LEADING, AND SPECULATION,
ARGUMENTATIVE,.THE LETTER OF OPINION MUST BE DISPUTED
IMMEDIATELY. [sic]
[Record Document 79-1, p.8].
This later filing does not explain why the letter was attached in the first place if
Plaintiffs do not agree with its contents. While pro se pleadings must be construed
liberally, the most basic requirements of our adversarial litigation process demand that
there be a limit to the lengths a Court will go to discern the basis of a pro se Plaintiff’s
claims. Before the pending motions to dismiss were filed and before the Court ordered
Plaintiffs to file a more definite statement of their claims, Plaintiffs were given ample
opportunity to file whatever they wanted in the record. See [Record Documents 11, 13,
15, 16, 17, 18, 22, 23, 27, 28, 31-37]. The Court has been careful to not deny Plaintiffs
access to this Court merely because they are unfamiliar with the Federal Rules of Civil
Procedure. See e.g. [Record Documents 21 and 52]. However, for the Court to
entertain a confusing plea to disregard half of the amended complaint filed in response
to a Court order that Plaintiffs file “a concise and clear statement of their claims,” would

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be to undermine the litigation process to such an extent that it could no longer be
reasonably conducted. [Record Document 52, p.4]. In order for it to be possible for
litigation to proceed, Plaintiffs must at some point be made to stand by the contents of
their pleadings. In this case, the Court sought to help Plaintiffs meet this basic
requirement by ordering them to file a clear and concise statement of their claims.
Accordingly, the Court will not disregard the letter attached to Plaintiff’s amended
complaint. XTO’s Motion to Dismiss is therefore GRANTED.
C.

Defendant Beverly Miller

The Court has granted Defendant Beverly Miller’s Motion to Adopt XTO’s Motion
to Dismiss [Record Document 112]. The Court ordered Plaintiffs to provide a more
definite statement of their claims only with respect to Anadarko and XTO. [Record
Document 52, p. 4]. Accordingly, the Court will not limit itself to examining only
Plaintiff’s amended complaint in order to determine whether Plaintiffs have stated a
plausible claim against Beverly Miller. Plaintiffs moved to amend their complaint to add
Beverly Miller on September 29, 2011. [Record Document 20]. This motion to amend
contains no explanation of Ms. Miller’s connection to Plaintiffs’ claims. Neither do any of
Plaintiffs’ other pleadings provide any explanation. In a later filing, Plaintiffs do state
that “SOME OF THESE CAUSES OF ACTIONS WAS ALSO AGAINST DEFENDANTS
BEVERLY M.MILLER, AND MARTHA ENGLISH....” [Record Document 79-1]. The Court,
however, finds no details in any of Plaintiffs’ previous filings regarding the nature of
Plaintiffs claims against Ms. Miller or how Ms. Miller is in any way connected to these
properties. Because Plaintiffs have not clearly and concisely alleged any connection
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between their existing claims and Beverly Miller, the Court GRANTS her adopted
motion to dismiss.
D.

Plaintiff’s Other Motions

The Court has reviewed Plaintiffs’ various motions for sanctions, “trespass,” to
stop or suspend oil production, to strike, for separate trial, for judgment on offer of
judgment, for summary judgment, for relief regarding other motions for summary
judgment, and for relief under portions of the Louisiana Code of Civil Procedure, and
finds that they lack merit. [Record Documents 79, 81, 85, 87, 89, 92, 93, 98, 100, 108,
113-16, 119, 124, 126, 135-142, 143-149, 153-166]. These motions are therefore
DENIED. Any other pending motions by Plaintiffs directed towards Anadarko or XTO
are likewise DENIED as moot.
III.

Conclusion
For the foregoing reasons, Anadarko’s Motion to Dismiss [Record Document 71]

is hereby GRANTED. All claims against Anadarko are hereby dismissed with
prejudice.
XTO’s Motion to Dismiss [Record Document 67] is hereby GRANTED, and all
claims against XTO are hereby dismissed with prejudice.
Beverly Miller’s adopted motion to dismiss is hereby GRANTED, and all claims
against Beverly Miller are hereby dismissed with prejudice.
IT IS SO ORDERED.

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