Graham v. Antero Resources Corporation
Filing
31
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION TO FILE A SECOND SUPPLEMENTAL RESPONSE: It is ORDERED that Plaintiff's 10 Motion to Remand is DENIED, and the Defendant's 30 Motion to File a Second Supplemental Response is GRANTED. Signed by Senior Judge Frederick P. Stamp, Jr on 7/26/16. (cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LUSCIOUS GRAHAM,
Plaintiff,
v.
Civil Action No. 1:16CV26
(STAMP)
ANTERO RESOURCES CORPORATION,
a Delaware corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
AND GRANTING DEFENDANT’S MOTION TO
FILE A SECOND SUPPLEMENTAL RESPONSE
I.
Background
The plaintiff originally filed this civil action in the
Circuit Court of Ritchie County, West Virginia.
ECF No. 8 Ex. 1.
The defendant is a Delaware corporation with its principal place of
business located in Colorado. The plaintiff allegedly owns certain
mineral rights, and asserts that the defendant conducted oil and
gas operations without her permission on land that included a
portion of such rights.
In Count I, the plaintiff alleges a claim
of trespass, theft, and conversion.
In Count II, the plaintiff
alleges that she was forced to sign participation agreements that
favored
the
defendant.
For
relief,
the
plaintiff
seeks
compensatory damages, punitive damages amounting to $1,000,000.00,
a declaratory judgment as to the signed participation agreements,
and that a receiver be appointed to operate the defendant’s oil and
gas operations at issue.
action.
The defendant then removed this civil
ECF No. 1.
At issue now is the plaintiff’s motion to remand. ECF No. 10.
In her motion, the plaintiff states that she is a citizen of
Colorado.
She points to the following facts: (1) her home is in
Colorado, which burned down shortly after this cause of action
commenced; (2) her oldest child recently graduated from high school
in Colorado; and (3) she maintains a Colorado driver’s license.
Because the defendant, which has its principal place of business in
Colorado, and the plaintiff are not diverse, the plaintiff seeks to
have the notice of removal vacated and this action remanded.
The defendant filed a response in opposition.
ECF No. 12.
The defendant first points out that the amount in controversy is
undisputed by the plaintiff.
Next, the defendant asserts that the
plaintiff is a citizen of Arkansas.
The defendant points to the
joint operation agreements regarding the oil and gas operations
that
allegedly
affect
the
plaintiff’s
mineral
rights.
More
specifically, the defendant states that the agreements contain an
Arkansas address for notifying the plaintiff.
The defendant
further alleges that the plaintiff’s Colorado residence is merely
a vacation home.
Later, the defendant sets forth facts regarding
the plaintiff’s alleged name change, business operations, and other
relevant conduct that has occurred in Arkansas.
Based on those
facts, the defendant claims that the plaintiff is a citizen of
2
Arkansas, and thus, diversity jurisdiction exists. No reply, which
was due on March 28, 2016, was filed.
After reviewing the motion
and the parties’ filings, this Court entered an order directing the
parties to conduct limited discovery as to jurisdiction and to file
supplemental memoranda.
ECF No. 17.
The parties have since filed supplemental memoranda. ECF Nos.
27 and 28.
In the defendant’s supplemental response (ECF No. 27),
it asserts that the plaintiff is a citizen of either Arkansas or
West Virginia.
The defendant alleges that the plaintiff has
resided in West Virginia since September 21, 2015, when she bought
a one-way bus ticket to West Virginia.
Since then, the plaintiff
has allegedly lived with her mother in West Virginia.
Moreover,
the plaintiff lived in West Virginia for four months before she
filed her complaint, which was on January 13, 2016.
then
discusses
plaintiff.
additional
background
The defendant
information
about
the
Previously, the plaintiff lived in Arkansas with her
then-boyfriend until at least June 2013. Later, her then-boyfriend
purchased a farm in Colorado, at which time the plaintiff and her
then-boyfriend ended their relationship. The defendant then points
to a span of time when the plaintiff traveled back and forth from
Colorado to Arkansas. Ultimately, the plaintiff moved back to West
Virginia
in
September
2015.
The
defendant
later
discusses
miscellaneous facts and circumstances that support its argument,
including the following: (1) the plaintiff owns real property only
3
in West Virginia; (2) the farm in Colorado is owned solely by her
ex-boyfriend; (3) all of her financial accounts are in West
Virginia; (4) she has worked in West Virginia since returning; and
(5) the plaintiff has paid property taxes in Arkansas related to a
mobile home she has owned there since 2015.
In essence, the
defendant argues that the plaintiff is a citizen of either Arkansas
or West Virginia, in which case diversity jurisdiction exists.
Therefore,
the
defendant
requests
that
this
Court
deny
the
plaintiff’s motion to remand.
The plaintiff filed a supplemental reply.
ECF No. 28.
In
that reply, the plaintiff first states that she reasserts her
arguments found in her motion to remand.
contends
that
she
is
a
citizen
of
Next, the plaintiff
Colorado
because
of
the
following: (1) she has a Colorado driver’s license; (2) she has a
Colorado fishing license; (3) a state court by order allegedly
determined that the plaintiff was a resident of Colorado; (4) the
plaintiff’s only child graduated from high school in Colorado; and
(5) the plaintiff has a vehicle titled in Colorado.
As to the
state court order referenced by the plaintiff, that court order
pertained to a prior suit by the plaintiff in Colorado state court.
In that case, the plaintiff argued that she was married to her exboyfriend by common law marriage.
The state court found that the
parties were not married and dismissed her case.
In the order
dismissing the case, the state court noted that the plaintiff “has
4
remained in Colorado since June of 2013.” That order, however, was
entered on August 24, 2015.
The plaintiff allegedly left for West
Virginia in September 2015.
Moreover, the state court order made
no explicit finding that the plaintiff was a citizen of Colorado.
Nonetheless, the plaintiff requests that this Court grant her
motion to remand.
The defendant filed a motion for leave to file a second
supplemental response to the motion to remand.
ECF No. 30.
In
that motion, the defendant asserts that good cause exists to grant
its motion.
In particular, the defendant wishes to address the
plaintiff’s Exhibits B and D from the plaintiff’s supplemental
brief (ECF Nos. 28 and 29), which are a copy of a fishing license
from Colorado and a vehicle registration from Colorado. Allegedly,
the plaintiff did not produce these exhibits during discovery, and
the plaintiff also stated at her deposition that she did not have
those items.
Therefore, the defendant seeks to address those
exhibits. The plaintiff did not respond to the defendant’s motion.
For the reasons set forth below, the plaintiff’s motion to
remand (ECF No. 10) is DENIED, and the defendant’s motion for leave
to file a second supplemental response (ECF No. 30) is GRANTED.
II.
Applicable Law
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
5
28 U.S.C. § 1441.
Federal
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
the
amount
in
controversy
exceeds
$75,000.00,
interests and costs pursuant to 28 U.S.C. § 1332(a).
exclusive
of
However, if
federal jurisdiction arises only by virtue of the parties’ diverse
citizenship, such an action “shall be removable only if none of the
. . . defendants is a citizen of the State in which such action is
brought.”
Tomlin
v.
Office
of
Law
Enforcement
Tech.
Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W.
Va. May 7, 2007).
The party seeking removal bears the burden of
establishing federal jurisdiction.
See In re Blackwater Security
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v.
Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.
1994).
Removal jurisdiction is strictly construed, and if federal
jurisdiction is doubtful, the federal court must remand.
Hartley
v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29
F.3d at 151.
Further, the court is limited to a consideration of facts on
the record at the time of removal.
See Lowrey v. Alabama Power
Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether
removal was proper . . . the district court has before it only the
limited universe of evidence available when the motion to remand is
filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL
6
2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, No.
5:10CV127, 2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The
defendant’s removal cannot be based on speculation; rather, it must
be based on facts as they exist at the time of removal.”);
Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W.
Va. May 12, 2011) (“The amount in controversy is determined by
considering the judgment that would be entered if the plaintiff
prevailed on the merits of his case as it stands at the time of
removal.”)
(internal
citations
omitted).
Regarding
punitive
damages, the mere likelihood of punitive damages, without more,
does not give rise to federal jurisdiction.
Cunningham, 2011 WL
1831596, at *2 (citing Landmark Corp. v. Apogee Coal Company, 945
F. Supp. 932 (S.D. W. Va. 1996)).
III.
Discussion
The parties do not dispute that the defendant is a citizen of
Delaware and Colorado.
See James G. Davis Const. Corp. V. Erie
Ins.
Supp.
Exchange,
953
F.
2d
607,
610
(D.
Md.
2013)
(A
“corporation is deemed a citizen of any state in which it is
incorporated or has its principal place of business[.]”)(internal
citations
and
quotations
omitted).
The
issue,
however,
is
determining in which state the plaintiff maintains citizenship. As
will be discussed more thoroughly below, this Court finds that the
plaintiff is a citizen of West Virginia for diversity jurisdiction
purposes.
Therefore, the plaintiff and defendant are diverse, and
7
thus,
the
plaintiff’s
motion
to
remand
is
DENIED
and
the
defendant’s motion to file a second supplemental response is
GRANTED.
As a general matter, 28 U.S.C. § 1332 requires complete
diversity between the plaintiff and defendant. In other words, the
“state of citizenship of each plaintiff must be different from that
of each defendant.” Athena Automotive, Inc. v. DiGregorio 166 F.3d
288, 290 (4th Cir. 1999).
“To establish citizenship of a state, a
person
citizen
must
be
both
a
domiciliary of that state.”
of
the
United
States
and
a
Johnson v. Advance America, 539 F.3d
932, 937 n.2 (4th Cir. 2008) (citing Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 828 (1989)).
As the United States Court of
Appeals for the Fourth Circuit has stated, “domicile requires
physical presence, coupled with an intent to make the State a
home.”
Advance America, 539 F.3d at 937 n.2 (citing Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)).
However,
in
determining
the
essential
elements
of
domicile,
statements of intention are entitled to little weight when in
conflict with the facts.
Griffin v. Matthews, 310 F. Supp. 341
(M.D.N.C. 1969), affirmed, 423 F.2d 272 (4th Cir. 1970). Moreover,
diversity jurisdiction depends on the citizenship of the parties at
the time an action commences, meaning this Court must focus its
jurisdictional inquiry solely on that time.
See Freeport-McMoRan,
Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991); Leimbach v.
8
Allen, 976 F.2d 912, 917 (4th Cir. 1992).
The Fourth Circuit has
stated that to support diversity jurisdiction in removed cases,
“diversity must have existed both at the time the action was
originally commenced in state court and at the time of filing the
petition for removal.”
Rowland v. Patterson, 882 F.2d 97, 99 (4th
Cir. 1989) (internal citation omitted).
When determining whether
subject matter jurisdiction exists, a district court may properly
consider evidence outside the pleadings. Adler v. Federal Republic
of Nigeria, 107 F.3d 720 (9th Cir. 1997).
The record presented by the parties shows that the plaintiff
has lived in and visited, at different points in time, the States
of
Colorado,
Arkansas,
and
West
Virginia.
connections to all three of those states.
She
maintains
For example, the
plaintiff has a Colorado driver’s license, and her oldest child
attended high school in Colorado.
In Arkansas, her ex-boyfriend,
with whom she previously lived, had a home. Further, the plaintiff
purchased a motorhome recreational vehicle that is registered as an
antique in Arkansas.
Turning to West Virginia, the plaintiff owns
mineral interests on her mother’s property in Pennsboro, West
Virginia, which are at issue.
She also co-owns a home with her ex-
boyfriend in Parkersburg, West Virginia.
The above examples are
facts, among others, that the parties rely on to argue that the
plaintiff is a citizen of one of those three states.
9
After reviewing the record, the facts show that the plaintiff
was domiciled, and thus a citizen, of West Virginia at the time the
action was both commenced and removed.
The plaintiff came back to
West Virginia from Colorado in September 2015.
*45-59.
ECF No. 27 Ex. A
She traveled to West Virginia by Greyhound bus after
purchasing a one-way ticket.
During her deposition, the plaintiff
stated that she plans on going back to Colorado.
Id. at *91.
As
stated above, however, in determining the essential elements of
domicile, statements of intention are entitled to little weight
when in conflict with the facts.
Griffin, 310 F. Supp. at 341.
Further, at the time of filing the complaint and notice of removal,
the plaintiff lived in West Virginia.1
That means the plaintiff
lived in West Virginia for four months prior to and at the time of
the commencement of this action.
The plaintiff also stated that
she was working in West Virginia, though her work consisted of
mostly odd-jobs. Finally, the plaintiff owns real property only in
West Virginia.
None of these facts, on their own, proves that the
plaintiff is a citizen of West Virginia. When collectively viewed,
however, the facts show that the plaintiff was domiciled, and thus
a citizen, of the State of West Virginia at the time the action was
both commenced and removed.
Therefore, this Court finds that, for
1
The plaintiff states that she was in Arkansas from January
20, 2016, until February 2016. She stated that she traveled “in
and out” of Arkansas during that time, and was selling “off the
remainder of the products inside the garage” of the home owned by
her ex-boyfriend.
10
purposes of diversity jurisdiction, the plaintiff was and is a
citizen of the State of West Virginia.
defendant
are
sufficiently
diverse,
Thus, the plaintiff and
and
accordingly,
the
plaintiff’s motion to remand is DENIED, and the defendant’s motion
to file a second supplemental response is GRANTED.
IV.
Conclusion
For the reasons set forth above, the plaintiff’s motion to
remand is DENIED, and the defendant’s motion to file a second
supplemental response is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
July 26, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?