Bison Resources Corporation v. Antero Resources Corporation et al
Filing
188
MEMORANDUM OPINION AND ORDER GRANTING THIRD-PARTY DEFENDANT PATRICIA F. HARISONS MOTION TO DISMISS FOR LACK OF JURISDICTION, GRANTING THIRD-PARTY DEFENDANT MARK F. HARISONS MOTION TO DISMISS FOR LACK OF JURISDICTION,GRANTING THIRD-PARTY DEFENDANT VIC TORIA F. HIGGINSS MOTION TO DISMISS FOR LACK OF JURISDICTION,GRANTING THIRD-PARTY DEFENDANT E. CRAIG THOMPSONS MOTION TO DISMISS FOR LACK OF JURISDICTION, GRANTING ANTERO RESOURCE CORPORATIONSMOTION FOR LEAVE TO FILE SURREPLY, DENYING INDIVIDUAL THIR D-PARTY DEFENDANTS MOTIONS TO STRIKE, DENYING THIRD-PARTY DEFENDANT BISON INTERESTS, LLCSMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, DENYING THIRD-PARTY DEFENDANT BISON ASSOCIATES, LLCS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ANDDENYING THIRD-PARTY DEFENDANT PSPI PARTNERSHIP NO. 2S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Signed by Senior Judge Frederick P. Stamp, Jr on 2/2/18. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BISON RESOURCES CORPORATION,
an Oklahoma limited liability company,
Plaintiff,
v.
Civil Action No. 1:16CV107
(STAMP)
ANTERO RESOURCES CORPORATION,
a Delaware corporation and
ANTERO RESOURCES APPALACHIAN CORPORATION,
a Delaware corporation and
predecessor-in-interest to defendant
Antero Resources Corporation,
Defendants,
and
ANTERO RESOURCES CORPORATION,
a Delaware corporation,
Third-Party Plaintiff,
v.
BISON ASSOCIATES, L.L.C.,
an Oklahoma limited liability company,
PSPI PARTNERSHIP NO. 2,
a Pennsylvania partnership,
BROWN RESOURCES, L.L.C.,
MARK F. HARISON, partner,
PATRICIA F. HARISON, partner,
JON D. HAZLEY, partner,
SHERRY L. HAZLEY, partner,
E. CRAIG THOMPSON, partner,
VICTORIA F. THOMPSON, partner,
and BISON INTERESTS, L.L.C.,
Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING THIRD-PARTY DEFENDANT PATRICIA F. HARISON’S
MOTION TO DISMISS FOR LACK OF JURISDICTION,
GRANTING THIRD-PARTY DEFENDANT MARK F. HARISON’S
MOTION TO DISMISS FOR LACK OF JURISDICTION,
GRANTING THIRD-PARTY DEFENDANT VICTORIA F. HIGGINS’S
MOTION TO DISMISS FOR LACK OF JURISDICTION,
GRANTING THIRD-PARTY DEFENDANT E. CRAIG THOMPSON’S
MOTION TO DISMISS FOR LACK OF JURISDICTION,
GRANTING ANTERO RESOURCE CORPORATION’S
MOTION FOR LEAVE TO FILE SURREPLY,
DENYING INDIVIDUAL THIRD-PARTY DEFENDANTS’ MOTIONS TO STRIKE,
DENYING THIRD-PARTY DEFENDANT BISON INTERESTS, LLC’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM,
DENYING THIRD-PARTY DEFENDANT BISON ASSOCIATES, LLC’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND
DENYING THIRD-PARTY DEFENDANT PSPI PARTNERSHIP NO. 2’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM1
I.
Background
This civil action involves a real property dispute arising out
of an alleged trespass, conversion of property, and tortious
interference as to certain oil and gas leases and further involves
a “right of first refusal” issue.
ECF No. 68 at 4.
The plaintiff,
Bison Resources Corporation (“Bison Resources”), originally filed
this civil action in the Circuit Court of Harrison County, West
Virginia.
The defendants removed this case to the United States
District Court for the Northern District of West Virginia citing
diversity of citizenship.
ECF No. 1.
The Honorable Irene M.
Keeley then transferred this civil action to the undersigned judge.
ECF No. 4.
Defendant/third-party plaintiff Antero Resources Corporation
(“Antero”) filed its third-party complaint with claims for express
1
This Court issued a letter (ECF No. 173) to counsel of record
in this civil action to set forth tentative rulings on the pending
motions discussed in this opinion. While the Court’s letter
indicates that this Court would deny the motion to dismiss by
third-party defendant Mark F. Harison for lack of jurisdiction (ECF
No. 64), this Court now finds, following further research, that
granting the motion to dismiss by third-party defendant Mark F.
Harison for lack of jurisdiction (ECF No. 64), is appropriate.
2
and implied indemnification, contribution, breach of warranty, and
subrogation
against
third-party
defendants,
Bison
Associates,
L.L.C., PSPI Partnership No. 2 and/or its partners,2 Charles R.
Brown, Terri A. Brown, Mark F. Harison, Patricia F. Harison, Jon D.
Hazley, Sherry L. Hazley3, E. Craig Thompson, Victoria F. Thompson,
and Bison Interests, L.L.C.
ECF No. 49.
Third-party plaintiff, Antero Resources Corporation, advances
agency, predecessor/successor relationship, and alter ego theories
in paragraphs 44-46 of its third-party complaint (ECF No. 49) in an
attempt to establish a binding relationship between the individual
partners,
Patricia
F.
Harison,
Mark
F.
Harison,
Victoria
F.
Higgins4, and E. Craig Thompson, and the commercial entities, Bison
2
On August 11, 2017, defendant Antero and third-party
defendants Charles R. Brown and Terri A. Brown filed a stipulation
substituting Brown Resources, L.L.C. (“Brown Resources”) for
Charles R. Brown and Terri A. Brown as third-party defendants. ECF
No. 104. Further, the parties agree that Antero need not file an
amended third-party complaint reflecting the substitution and that
Brown Resources waives service of process. Accordingly, all claims
against third-party defendants Charles R. Brown and Terri A. Brown
were dismissed without prejudice. ECF No. 105. The caption of this
case hereinafter should reflect the substitution of Brown
Resources, L.L.C. for Mr. and Mrs. Brown.
3
This Court finds that the individual third-party defendants,
Jon D. Hazley and Sherry L. Hazley, have never been served and are
thus not a party to this civil action. The Court notes that there
is no discussion about the Hazleys in the motions to dismiss.
However, as stated in a footnote within a response to a separate
motion, “[u]pon information and belief, the Hazleys are deceased.”
ECF No. 123 at 3 n.2.
4
Formerly known as Victoria F. Thompson (ECF No. 100 at 2
n.1).
3
Interests, L.L.C., Bison Associates, L.L.C., and PSPI Partnership
No. 2.
Individual third-party defendants, Patricia F. Harison, Mark
F. Harison, Victoria F. Higgins, and E. Craig Thompson, filed
motions to dismiss the third-party complaint (ECF No. 49) by Antero
as it relates to them for lack of jurisdiction.
These individuals
argue that they have no legally meaningful connection to the State
of West Virginia nor has Antero alleged such a connection other
than naming them as individual third-party defendants as partners.
The individuals argue that the Court does not have personal
jurisdiction over them, Antero cannot establish either general or
specific personal jurisdiction, and personal jurisdiction does not
exist solely because the Court possesses supplemental jurisdiction
over related claims.
Antero states in its response (ECF No. 92), “as a threshold
matter, Federal Rule of Civil Procedure 8(a) does not require a
party to plead personal jurisdiction.”
Antero argues that each of
these third-party defendants has had sufficient contacts with West
Virginia to establish general or specific personal jurisdiction in
accordance with due process.
Antero asserts that for more than 20
years these third-party defendants have established contacts with
West Virginia through assignments of multiple property interests,
and each currently owns working interests in oil and gas leases in
West Virginia.
In addition, each has been a signatory on multiple
documents related to the Ash, Clark, and West Leases in West
4
Virginia, which are at issue in this action.
ECF No. 92 at 2.
Moreover, Antero argues these individuals are “agents of and
subject to joint and several liability with PSPI,” asserting that
“Mr. Harison signed the Assignment, Bill of Sale and Conveyance at
the heart of the Third-Party Complaint on behalf of PSPI and Bison
Associates, L.L.C.”.
ECF No. 92 at 2.
Individual third-party defendants, Patricia F. Harison, Mark
F. Harison, Victoria F. Higgins, and E. Craig Thompson, filed
replies to Antero’s response and assert the following arguments in
support
of
dismissal:
(1)
the
Court
did
not
have
personal
jurisdiction over these individuals at the time the third-party
complaint was commenced; (2) general jurisdiction does not exist
given these individuals have not owned working interests in West
Virginia oil and gas assets in excess of 15 years; (3) the actions
that occurred from 1996 to 2011 are irrelevant and not sufficient
to confer general personal jurisdiction; (4) specific jurisdiction
does not exist since these individuals did not have any contact
with West Virginia at the time of the events underlying the
dispute; (5) Antero’s “partnership” theory is misguided and does
not support a finding of personal jurisdiction; and (6) exercise of
personal
jurisdiction
over
these
individuals
would
be
constitutionally unreasonable.
Defendant Antero, pursuant to Local Rule of Civil Procedure
7.02(b)(3), filed a motion for leave to file a surreply in response
to the motions to dismiss for lack of personal jurisdiction by Mark
5
F. Harison, Patricia F. Harison, E. Craig Thompson, and Victoria F.
Higgins. Defendant asserts leave of court is proper because Antero
seeks to respond to arguments made for the first time, including
“that these Third-Party Defendants are no longer partners in
Third-Party Defendant PSPI Partnership No. 2.”
ECF No. 131.
Antero asserts “[e]ach of these Third-Party Defendants has had
sufficient
contacts
with
West
Virginia
to
establish
personal
jurisdiction in accordance with due process” and “[c]ontrary to the
argument made for the first time in these Third-Party Defendants’
reply briefs, courts should not assess jurisdictional contacts
solely at the moment the third-party complaint is filed but also as
they existed prior to and at the time the claim arose.”
131-1 at 2.
ECF No.
Further, Antero contends that “these Third-Party
Defendants have sufficient minimum contacts to satisfy due process
either as partners in PSPI Partnership No. 2 (“PSPI”) or because
they are alter egos of the other Third-Party Defendants.”
Id.
Third-party individual defendants Mark F. Harison, Patricia F.
Harison, E. Craig Thompson, and Victoria F. Higgins filed motions
to strike (ECF Nos. 132, 133, 134, 135) the surreply filed by
Antero asserting that, “[c]ontrary to its assertions, [Antero] does
not introduce new arguments in the briefing appended to its Motion,
and [Antero] has had a full and fair opportunity to brief and argue
this issue to the Court – an issue which is ripe for decision.”
ECF No. 132 at 2-3.
Third-party defendants contend that Antero
6
simply “reiterates the very facts and issues presented to the Court
prior to, and during, oral argument on November 16, 2017.”
Id.
Antero filed a response (ECF No. 143) to the individual thirdparty defendants’ motions to strike Antero’s motion for leave to
file surreply, and asserts that in its surreply, Antero responds to
arguments made by these individual third-party defendants for the
first time during oral argument on the motions to dismiss. ECF No.
143.
Third-party
defendants,
Bison
Interests,
L.L.C.,
Bison
Associates, L.L.C., and PSPI Partnership No. 2, filed motions to
dismiss Antero’s third-party complaint for failure to state a
claim.
These entities argue that they are separate legal entities
and not signatories to the “BRC-Antero” contract.
These entities
assert “Antero’s alleged claims are borne out of the Assignment,
Bill of Sale and Conveyance,” and argue that Antero’s third-party
complaint fails to articulate any basis upon which this Court
should “pierce the corporate [or limited liability] veil.” ECF No.
68 at 5.
allegations
These parties argue that “[t]he entirety of Antero’s
against
Bison
and
PSPI
are
contained
in
three
paragraphs of its Third-Party Complaint which generically assert a
right to recovery from the third-party defendants but contain no
factual information that asserts why liability could be imputed to
the Third-Party Defendants for Plaintiff’s claims in this civil
action and lack and explanation of how or why the corporate form of
Bison and PSPI should be disregarded in this civil action in light
7
of the clear contract between BRC and Antero.”
ECF No. 87 at 2-3.
Ultimately, these three third-party defendants assert that because
they are “separate legal entities, not parties to the contract
between BRC and Antero, they are entitled the protections afforded
to distinct legal entities under the settled law of corporations.”
ECF No. 87 at 4.
Antero
states
in
its
response
(ECF
No.
93)
that
the
third-party complaint states claims upon which relief may be
granted by asserting that Bison Associates and PSPI are assignors
under the assignment,5 bill of sale and conveyance with express
indemnity, warranty, and subrogation provisions, and that Bison
Interests is the successor-in-interest of Bison Associates and PSPI
and the surviving/active Bison successor entity.
Antero
asserts
that
it
“has
alleged
facts
ECF No. 93 at 2.
regarding
the
relationships of Bison Associates, PSPI, and Bison Interests to the
Assignment,
Bill
of
Sale
and
Conveyance
and
to
each
other
sufficient to establish the liability of each of these Third-Party
Defendants.”
ECF No. 93 at 14 n.2.
Bison Associates, PSPI, and Bison Interests did not file
replies to the responses by Antero in opposition to the motions to
5
Antero filed its “Corrected Notice of Filing Assignment, Bill
of Sale and Conveyance” as ECF No. 125, stating, “the copy of the
Assignment, Bill of Sale and Conveyance attached to the Notice of
Filing on October 20, 2017, ECF No. 118, is not the version of the
Assignment, Bill of Sale and Conveyance recorded in Deed Book 1492,
Page 642 with the Clerk of the County Commission of Harrison
County, West Virginia and attached to the Third-Party Complaint as
Exhibit C.
This mistake in the original Notice of Filing was
inadvertent and was recently discovered.” ECF No. 125 at 2.
8
dismiss for failure to state a claim upon which relief can be
granted.
Further, this Court held oral argument on the third-party
defendants’ motions to dismiss, particularly regarding the requests
for dismissal for lack of personal jurisdiction and for dismissal
under Rule 12(b)(6), on November 16, 2017.
ECF No. 117.
Now before the Court are seven pending motions: (1) motion to
dismiss by third-party defendant Patricia F. Harison for lack of
personal jurisdiction (ECF No. 62); (2) motion to dismiss by thirdparty
defendant
Mark
F.
Harison
for
jurisdiction (ECF No. 64); (3) motion to
lack
of
personal
dismiss by third-party
defendant Victoria F. Higgins for lack for lack of personal
jurisdiction (ECF No. 79); (4) motion to dismiss by third-party
defendant E. Craig Thompson for lack of personal jurisdiction (ECF
No. 81); (5) motion to dismiss for failure to state a claim by
Bison Interests, LLC (ECF No. 66); (6) motion to dismiss for
failure to state a claim by Bison Associates, LLC (ECF No. 86); and
(7) motion to dismiss for failure to state a claim by PSPI
Partnership No. 2 (ECF No. 88).
The motions have been fully briefed and the parties’ pending
motions to dismiss are ripe for decision.
9
II.
A.
Applicable Law
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(2) for Lack of Personal Jurisdiction
When a court’s power to exercise personal jurisdiction over a
non-resident
defendant
is
challenged
by
a
motion
under
Rule
12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff
bears the burden of proving the existence of the grounds for
jurisdiction by a preponderance of the evidence.
Owens-Illinois,
Inc. v. Rapid Am. Corp., (In re The Celotex Corp.), 124 F.3d 619,
628 (4th Cir. 1997) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir. 1989)).
Under
a
“long-arm”
statute,
such
as
West
Virginia
Code
§ 56-3-33,6 a state may enable its courts to exercise personal
6
Section 56-3-33 states, in pertinent part:
(a) The engaging by a nonresident, or by his duly
authorized agent, in any one or more of the acts
specified in subdivisions (1) through (7) of this
subsection shall be deemed equivalent to an appointment
by such nonresident of the secretary of state, or his or
her successor in office, to be his or her true and lawful
attorney upon whom may be served all lawful process in
any action or proceeding against him or her, in any
circuit court in this state . . . for a cause of action
arising from or growing out of such act or acts, and the
engaging in such act or acts shall be a signification of
such nonresident’s agreement that any such process
against him or her, which is served in the manner
hereinafter provided, shall be of the same legal force
and validity as though such nonresident were personally
served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things
in this state;
. . .
10
jurisdiction over non-residents that commit certain acts within the
state, or certain acts outside of the state, that have caused
injury within the state. See Lozinski v. Lozinski, 408 S.E.2d 310,
315 (W. Va. 1991) (“The intent and benefit of any long-arm statute
is to permit the secretary of state to accept process on behalf of
a nonresident and to view such substituted acceptance as conferring
personal jurisdiction over the nonresident.”).
Because the West
Virginia long-arm statute is coextensive with the full reach of due
process, it is unnecessary to go through the normal two-step
formula for determining the existence of personal jurisdiction. In
re Celotex Corp., 124 F.3d 619, 627-28 (4th Cir. 1997).
Instead,
the “statutory inquiry merges with the Constitutional injury,” and
this Court must determine whether exercising personal jurisdiction
is consistent with the due process clause.
Id. at 628; see World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).
(4) Causing tortious injury in this state by
an act or omission outside this state if he
regularly does or solicits business, or
engages in any other persistent course of
conduct, or derives substantial revenue from
goods used or consumed or services rendered in
this state;
(b) When jurisdiction over a nonresident is based solely
upon the provisions of this section, only a cause of
action arising from or growing out of one or more of the
acts specified in subdivisions (1) through (7),
subsection (a) of this section may be asserted against
him or her.
W. Va. Code § 56-3-33 (emphasis added).
11
Due process requires that a defendant receive adequate notice
of the suit and be subject to the personal jurisdiction of the
court.
Id.
(citations
omitted).
The
exercise
of
personal
jurisdiction over a non-resident defendant is proper only so long
as “minimum contacts” exist between the defendant and the forum
state,
“such
that
maintenance
of
the
suit
does
not
offend
‘traditional notions of fair play and substantial justice.’” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)).
If the defendant’s contacts with the forum state provide the
basis
for
the
jurisdiction.”
suit,
those
conducts
may
establish
“specific
Carefirst of Md., Inc. v. Carefirst Pregnancy
Centers, Inc., 334 F.3d 390, 397 (4th Cir. 2003).
To determine
whether specific jurisdiction exists, this Court considers: “(1)
the extent to which the defendant has purposefully availed itself
of the privilege of conducting activities in the state; (2) whether
the plaintiffs’ claims arise out of those activities directed at
the state; and (3) whether the exercise of personal jurisdiction
would be constitutionally ‘reasonable.’”
Id. (quoting ALS Scan,
Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th
Cir. 2002)).
If the defendant’s contacts with the state are not the basis
for the suit, however, then jurisdiction “must arise from the
defendant’s general, more persistent, but unrelated contacts with
the state.”
Id.
A plaintiff establishes general jurisdiction by
12
showing that the defendant’s activities in the state have been
“continuous and systematic.”
Id. (citing Helicopteros Nacionales
de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n.9 (1984)).
B.
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) for Failure to State a Claim
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
Id.
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
This
Court
also
declines
to
consider
“unwarranted
unreasonable conclusions, or arguments.”
inferences,
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
1998).
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
13
Id.
For
purposes of the motion to dismiss, the complaint is construed in
the
light
essentially
most
the
favorable
court’s
to
the
inquiry
party
is
making
directed
the
to
claim
and
whether
the
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Facial
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
Detailed
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
III.
Discussion
Following its review of the fully briefed motions, and the
memoranda and exhibits submitted by the parties, and for the
reasons set forth below, this Court finds as follows:
1.
Motion to dismiss by third-party defendant Patricia
F. Harison for lack of personal jurisdiction (ECF No. 62)
is granted.
2.
Motion to dismiss by third-party defendant Mark F.
Harison for lack of personal jurisdiction (ECF No. 64) is
granted.
14
3.
Motion to dismiss by third-party defendant Victoria
F. Higgins for lack for lack of personal jurisdiction
(ECF No. 79) is granted.
4.
Motion to dismiss by third-party defendant E. Craig
Thompson for lack of personal jurisdiction (ECF No. 81)
is granted.
5.
Motion for leave to file surreply in response to
motions to dismiss for lack of personal jurisdiction by
Antero Resources Corporation (ECF No. 131) is granted.
6.
Motions to strike (ECF Nos. 132, 133, 134 and 135)
Antero Resources Corporation’s motion for leave to file
surreply to Mark F. Harison, Patricia F. Harison, E.
Craig Thompson and Victoria F. Higgins’s motions to
dismiss are denied.
7.
Motion to dismiss for failure to state a claim by
Bison Interests, LLC (ECF No. 66) is denied.
8.
Motion to dismiss for failure to state a claim by
Bison Associates, LLC (ECF No. 86) is denied.
9.
Motion to dismiss for failure to state a claim by
PSPI Partnership No. 2 (ECF No. 88) is denied.
A.
Individual Third-Party Defendants’ Federal Rule of Civil
Procedure
12(b)(2)
Motions
to
Dismiss
for
Lack
of
Personal
defendants,
Mark
F.
Harison,
Jurisdiction
The
individual
third-party
Patricia F. Harison, E. Craig Thompson and Victoria F. Higgins,
have challenged this Court’s jurisdiction over their persons,
arguing that they do not have contacts with the State of West
Virginia sufficient to create jurisdiction in this Court over them
in this case. Thus, they request that this Court dismiss them from
the action pursuant to Federal Rule of Civil Procedure 12(b)(2).
In support of these motions, these defendants argue that Antero
15
cannot establish general or specific jurisdiction over them in this
civil action.
Further,
the
third-party
defendants
aver
that
the
only
connection that defendants have with the state and/or this case
whatsoever, is their tangential connection as partners or former
partners in PSPI Partnership No. 2.
These individuals assert that
the third-party complaint fails to allege facts that would show
they have engaged in any activity purposefully directed at West
Virginia, either individually or as partners in PSPI Partnership
No. 2.
As previously stated, it is the burden of the plaintiffs in
response to a challenge to personal jurisdiction to establish, by
a preponderance of the evidence, that personal jurisdiction exists
over the challenging defendants.
Initially, it is clear to this
Court that these individual defendants do not have nearly enough
contacts with the State of West Virginia to establish general
jurisdiction over them within the state, and third-party plaintiff
Antero has failed to satisfy its burden. Any connection that these
defendants may have whatsoever with West Virginia is sparse and
only tangential in that the connection is solely related to other
defendants in this action who may be subject to suit in West
Virginia.
2003).
See Carefirst of Md., Inc., 334 F.3d at 397 (4th Cir.
Further, this Court finds that any connections to West
Virginia which would serve as the basis for general jurisdiction
over these individual third-party defendants are tenuous in that
16
these individuals have not owned working interests in West Virginia
oil and gas assets in excess of 15 years and the actions that
occurred from 1996 through 2011 are too remote and insufficient to
confer general personal jurisdiction.
Thus, in order to establish
personal jurisdiction over these individual third-party defendants,
Antero would need to prove that specific personal jurisdiction
exists over Mark F. Harison, Patricia F. Harison, E. Craig Thompson
and Victoria F. Higgins by showing evidence of elements of the
three-pronged test above-described.7
This Court, having found no
basis for general personal jurisdiction over these individual
third-party defendants, will now address the issue of specific
personal jurisdiction as it relates to the individuals’ motions to
dismiss Antero’s third-party complaint.
1.
Individual Third-Party Defendants Patricia F.
Harison, E. Craig Thompson and Victoria F. Higgins’s
Federal Rule of Civil Procedure 12(b)(2) Motions to
Dismiss for Lack of Personal Jurisdiction
Third-Party
plaintiff
Antero
states
in
its
third-party
complaint that “Bison Resources Corporation, Bison Associates,
L.L.C., PSPI Partnership No. 2 and/or its partners Charles R.
Brown, Terri A. Brown, Mark F. Harison, Patricia F. Harison, Jon D.
Hazley, Sherry L. Hazley, E. Craig Thompson, Victoria F. Thompson,
7
“(1) the extent to which the defendant has purposefully
availed itself of the privilege of conducting activities in the
state; (2) whether the plaintiffs’ claims arise out of those
activities directed at the state; and (3) whether the exercise of
personal jurisdiction would be constitutionally ‘reasonable.’” Id.
(quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293
F.3d 707, 711-12 (4th Cir. 2002)).
17
and Bison Interests, L.L.C. are real or apparent agents of one
another such that the acts of one are binding on the others.”
No. 49 at 9.
Bison
ECF
Antero also states “Bison Resources Corporation,
Associates,
L.L.C.,
PSPI
Partnership
No.
2,
and
Bison
Interests, L.L.C. are alter egos of Charles R. Brown, Terri A.
Brown, Mark F. Harison, Patricia F. Harison, Jon D. Hazley, Sherry
L. Hazley, E. Craig Thompson, and Victoria F. Thompson such that
the liability of the entities may be imposed on the individuals.”
ECF No. 49 at 10.
Antero has offered argument attempting to
satisfy its burden of proving that this Court has jurisdiction over
individual third-party defendants, Patricia F. Harison, E. Craig
Thompson
and
individuals
Victoria
are
F.
holding
Higgins,
by
themselves
out
asserting
as
that
partners
of
these
PSPI
Partnership No. 2, and that they held substantial connections to
West Virginia, to this lawsuit, and connections to the chain of
title for the Ash lease, the Clark lease, and the West lease that
are at the heart of this litigation.
This Court finds that Antero’s argument does not support a
finding
that
these
three
individual
third-party
defendants,
Patricia F. Harison, E. Craig Thompson and Victoria F. Higgins,
purposefully availed themselves of the protections and benefits of
West
Virginia
law
such
that
it
would
be
constitutionally
“reasonable” for this Court to exercise jurisdiction over them in
this case.
Antero merely asserts that these individuals “are real
or apparent agents of one another such that the acts of one are
18
binding
on
the
others”
and
that
the
above-named
third-party
defendant entities are “alter egos” of these individuals “such that
the liability of the entities may be imposed on the individuals.”
ECF No. 49 at 9, 10. Antero contends that these individuals should
be held liable for the actions of other third-party defendant
individuals or third-party defendant entities under this “alter
ego” theory.
However, this Court simply finds no basis for this
contention or theory of specific personal jurisdiction over these
individuals.
There has been no showing by Antero that individual
third-party defendants, Patricia F. Harison, E. Craig Thompson and
Victoria
F.
Higgins,
purposefully
availed
themselves
of
the
protections and benefits of West Virginia law such that it would be
constitutionally
“reasonable”
for
jurisdiction over them in this case.
this
Court
to
exercise
Further, counsel for these
individual defendants asserted during oral argument on the pending
motions that these individuals are no longer partners in PSPI
Partnership
No.
2
and
transferred
any
interests
in
property
connected to this lawsuit that they may have had.
Thus,
this
Court
finds
that
Antero,
as
the
third-party
plaintiff, has failed to satisfy its burden to establish, by a
preponderance of the evidence, that personal jurisdiction exists
over Patricia F. Harison, E. Craig Thompson and Victoria F.
Higgins.
Accordingly, this Court finds that it cannot exercise
personal jurisdiction over these individual third-party defendants
19
and grants Patricia F. Harison, E. Craig Thompson and Victoria F.
Higgins’s motions to dismiss Antero’s third-party complaint.
2.
Individual Third-Party Defendant Mark F. Harison’s
Federal Rule of Civil Procedure 12(b)(2) Motion to
Dismiss For Lack of Personal Jurisdiction
In the typical case, the contacts of a company are not
attributed to a corporate agent for jurisdictional purposes. ePlus
Tech., Inc. v. Aboud, 313 F.3d 166, 177 (4th Cir. 2002) (citing
Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804
(1984)).
Further, the acts of a corporate officer or employee
taken in his corporate capacity within the jurisdiction generally
do
not
form
the
predicate
individual capacity.
for
jurisdiction
over
him
in
his
Columbia Briargate Co. v. First Nat. Bank in
Dallas, 713 F.2d 1052, 1056 (4th Cir. 1983).
When a claim against
a corporate agent rests on nothing more than that he is an officer
or employee of the non-resident corporation, “under sound due
process principles, the nexus between the corporate agent and the
forum state is too tenuous to support jurisdiction over the agent
personally.”
Id. at 1064–65; see also Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 106 (3d Cir. 2004) (stating “jurisdiction over
. . . [individual] defendants does not exist simply because they
are agents or employees of organizations which presumably are
amenable to jurisdiction”).
Each partner is generally an agent of
the partnership for the purposes of its business, and thus, a
partner’s activities in carrying on partnership business in the
usual way may confer personal jurisdiction over the partnership
20
entity.
Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990); see also
Sawtelle v. Farrell, 70 F.3d 1381, 1389 n.4 (1st Cir. 1995).
However, minimum contacts must be established with each partner, as
personal jurisdiction must be established over each partner in a
partnership individually.
Clark v. Milam, 830 F. Supp. 316, 325
(S.D. W. Va. 1993) (citing Ytuarte v. Gruner & Jahr Printing and
Publishing Co., 935 F.2d 971, 972–73 (8th Cir. 1991); Sher v.
Johnson, 911 F.2d 1357, 1365–66 (9th Cir. 1990)).
explained
that
liability
and
jurisdiction
The Sher court
are
distinct
and
independent, stating “[l]iability depends on the relationship
between the plaintiff and the defendants and between the individual
defendants;
jurisdiction
depends
only
upon
each
relationship with the forum. [citation omitted].
defendant’s
Regardless of
their joint liability, jurisdiction over each defendant must be
established individually.”
Sher, 911 F.2d at 1365.
Although a
corporate official may be held personally liable for tortious
conduct committed by him, though committed primarily for the
benefit
of
the
corporation,
the
Court
must
still
make
a
determination as to whether that individual’s contacts with the
state were such that due process permits the exercise of personal
jurisdiction over him.
Balance Dynamics Corp. v. Schmitt Indus.,
Inc., 204 F.3d 683, 698 (6th Cir. 2000) (citing Polo Fashions, Inc.
v. Craftex, Inc., 816 F.2d 145, 149 (4th Cir. 1987)).
During oral argument, Antero referenced an “an e-mail at the
heart of the claim for misrepresentation that Mark Harison sent to
21
folks on May 5th, 2012, and that e-mail described this series of
transactions” and argues that this email serves as basis for
personal jurisdiction over Mark F. Harison.
This Court notes that
this email was not attached as an exhibit to Antero’s response in
opposition to the third-party defendants’ motion to dismiss, but
rather found to be attached as an exhibit in support of Antero’s
response in opposition to the commercial entities’ motion to
dismiss the third-party complaint for failure to state a claim upon
which relief can be granted.
ECF No. 93-1.
Also during oral
argument, Antero referenced another email allegedly from Mark F.
Harison.
This email has not been made part of the record.
Antero
argues that Mark F. Harison is an agent of and subject to joint and
several liability with PSPI, asserting that “Mr. Harison signed the
Assignment, Bill of Sale and Conveyance at the heart of the
Third-Party Complaint on behalf of PSPI and Bison Associates,
L.L.C.”.
ECF No. 92 at 2.
This Court has reviewed the email at issue and finds that it
deals
with
an
offer
made
to
Antero,
subject
to
a
mutually
acceptable purchase agreement, to purchase an interest in certain
acreage at issue in this civil action.
The email indicates that
Mark Harison personally reviewed the land holdings and identified
“leases that have Marcellus shale rights.”
ECF No. 93-1.
The
email also states, “[t]here were no further reservations in any of
these assignments.”
Id.
This Court notes that the email subject
line is titled “WV Acreage for sale” and is signed “Mark F.
22
Harison, President, Bison Resources Corporation, Manager, Bison
Associates, LLC.”
Id.
This Court finds that the email (ECF No. 93-1) relates to the
allegations contained in Antero’s third-party complaint, but only
relates to Mark Harrison in a professional capacity as “President”
of a corporation and “Manager” of a limited liability corporation,
not as an individual.
Id.
Further, as to the “Assignment” (ECF
No. 125-1) at issue, Mark F. Harison signed on behalf of Bison
Associates, LLC as the Assignor under the title “President, Bison
Resources Corporation, Manager” (ECF No. 125-1 at 4) and on behalf
of PSPI Partnership No. 2 under the title “President, Bison
Resources Corporation, Manager of Bison Associates, LLC, General
Partner” (ECF No. 125-1 at 5). Mark Harison’s contacts, which were
in his capacity as “President,” “Manager,” and “Partner,” do not
support a finding that Mark Harison purposefully availed himself
personally of the protections and benefits of West Virginia law
such that it would be constitutionally reasonable for this Court to
exercise specific personal jurisdiction over him in this case.
In
this
particular
case,
Mark
Harison
is
named
as
an
individual third-party defendant in his capacity as a “partner” of
PSPI
Partnership
No.
2.
This
Court
finds
that
the
actions
connecting Mark Harison to West Virginia, which are few, were done
in an official, rather than personal, capacity.
Further, this
Court finds that those contacts are not such that due process
permits the exercise of personal jurisdiction over Mark Harison.
Thus, this Court finds that Antero, as the third-party plaintiff,
23
has not established, by a preponderance of the evidence, that
personal jurisdiction exists over Mark Harison.
Accordingly, this
Court finds that it cannot exercise personal jurisdiction over this
individual third-party defendant based on his conduct connected to
this civil action. This Court finds that requiring Mark Harison to
defend his interests in West Virginia on the basis of specific
personal jurisdiction offends traditional notions of fair play and
substantial justice, and accordingly, grants Mark Harison’s motion
to dismiss Antero’s third-party complaint.
B.
Third-Party Defendants Bison Interests, LLC, Bison Associates,
LLC, and PSPI Partnership No. 2’s Federal Rule of Civil Procedure
12(b)(6) Motions to Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted
This Court has construed the third-party complaint in the
light most favorable to Antero for the purposes of these motions to
dismiss. In doing so, this Court finds that the third-party
complaint makes sufficient factual allegations against third-party
defendants, Bison Interests, LLC, Bison Associates, LLC, and PSPI
Partnership No. 2, to survive the third-party defendants’ Rule
12(b)(6) motions to dismiss.
Antero’s third-party complaint asserts that Bison Associates,
L.L.C., PSPI Partnership No. 2 and/or its partners, and Bison
Interests, L.L.C. as the surviving/active Bison Successor entity
made
misrepresentations,
including
but
not
limited
to
the
representations in the assignment, bill of sale and conveyance and
that
these
third-party
defendants
24
made
misrepresentations
throughout the negotiation process, including but not limited to
Mr. Harison’s statement that “[t]here were no further reservations
in any of these assignments”.
ECF No. 49.
Antero contends that
Bison Associates and PSPI are assignors under the assignment, bill
of sale and conveyance with express indemnity, warranty, and
subrogation
provisions,
successor-in-interest
and
of
that
Bison
Bison
Associates
surviving/active Bison successor entity.
Interests
and
PSPI
is
the
and
the
ECF No. 93 at 2.
This Court finds that Antero has alleged facts regarding the
relationships of Bison Associates, PSPI, and Bison Interests to the
assignment,
sufficient
bill
to
of
sale
survive
the
and
conveyance
third-party
and
to
defendants’
each
other
motions
to
dismiss.
IV.
Conclusion
As stated above, and for the reasons stated above, it is
ORDERED as follows:
Motion to dismiss by third-party defendant
Patricia F. Harison for lack of personal jurisdiction (ECF No. 62)
is GRANTED. Motion to dismiss by third-party defendant Mark F.
Harison for lack of personal jurisdiction (ECF No. 64) is GRANTED.
Motion to dismiss by third-party defendant Victoria F. Higgins for
lack for lack of personal jurisdiction (ECF No. 79) is GRANTED.
Motion to dismiss by third-party defendant E. Craig Thompson for
lack of personal jurisdiction (ECF No. 81) is GRANTED.
Motion for
leave to file surreply in response to motions to dismiss for lack
of personal jurisdiction by Antero Resources Corporation (ECF No.
131) is GRANTED.
Motions to strike Antero Resources Corporation’s
25
motion for leave to file surreply to Mark F. Harison, Patricia F.
Harison, E. Craig Thompson and Victoria F. Higgins’s motions to
dismiss (ECF Nos. 132, 133, 134 and 135) are DENIED.
Motion to
dismiss for failure to state a claim by Bison Interests, LLC (ECF
No. 66) is DENIED.
Motion to dismiss for failure to state a claim
by Bison Associates, LLC (ECF No. 86) is DENIED. Motion to dismiss
for failure to state a claim by PSPI Partnership No. 2 (ECF No. 88)
is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit copies of this order to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter as to defendants Patricia F. Harison, Mark F. Harison, E.
Craig Thompson and Victoria F. Higgins.
DATED:
February 2, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
26
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