Packard et al. v. Antero Resources Corporation

Filing 23

MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS TO DISMISS [DKT. NO. 19 ]. Signed by Senior Judge Irene M. Keeley on 5/23/2018. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JANET C. PACKARD and
LEROY PACKARD, husband and wife,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:18CV04
(Judge Keeley)

ANTERO RESOURCES CORPORATION,
a Delaware Corporation,
Defendant.
MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
During a joint scheduling conference in these consolidated
cases on April 4, 2018, the Court GRANTED in part and DENIED in
part the defendant’s motions to dismiss. This Memorandum Opinion
explains the Court’s reasoning in support of that decision.
I. BACKGROUND
A.

The Pleadings
The facts are taken from the complaints and, as they must be,

are construed in the light most favorable to the plaintiffs. See
De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). On December
5, 2017, the plaintiffs, Janet C. Packard and Leroy Packard, Garnet
C. Cottrill, and Marlyn C. Sigmon, filed three identical complaints
in the Circuit Court of Harrison County, West Virginia, against the
defendant, Antero Resources Corporation (“Antero”) (Dkt. No. 1-1).1

1

Unless otherwise noted, citations to docket entries in this
Memorandum Opinion refer to the lead case, Civil No. 1:18cv4.

PACKARD v. ANTERO

1:18CV04

MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
The complaints allege that the plaintiffs own mineral interests in
real property subject to three oil and gas leases. These include
two tracts containing 104.75 and 6.5 acres in Union District,
Harrison County, West Virginia; one tract containing 50.82 acres in
Union District, Harrison County, West Virginia; and one tract
containing 54.18 acres in Union District, Harrison County, West
Virginia. Id. at 1-2. Allegedly, none of the leases “contain
pooling or unitization authority” and “require[] the Lessor’s
consent to assign.” Id.
Despite the fact that the leases do not expressly grant the
right to pool or unitize, Antero has drilled horizontal wells
through each of the tracts at issue, produced minerals from the oil
and gas estate, and pooled the plaintiffs’ gas with the gas of
others. Id. at 3. The complaints make three claims for relief based
on the allegedly unlawful pooling of the plaintiffs’ property,
including 1) trespass, 2) breach of contract, and 3) breach of the
implied duty to protect against drainage. Id. at 4-5.
Antero removed the cases to this Court on January 11, 2018,
based on the Court’s diversity jurisdiction (Dkt. No. 1). On
January 18, 2018, Antero moved to dismiss each of the complaints
(Dkt. No. 6). At a joint scheduling conference on April 4, 2018,

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
the Court consolidated the cases and granted in part and denied in
part Antero’s motions (Dkt. No. 19).
B.

Supplemental Information
In their briefs on the motions to dismiss, the parties have

attached matters of public record that supplement the factual
allegations in the complaints. Antero provided three leases and
three lease modifications (Dkt. No. 6-1), while the plaintiffs
included an order entered by the Circuit Court of Harrison County,
West Virginia, in a recent case (Dkt. No. 8-1).
The plaintiffs are three of seven children born to James
Corder and Pearl Corder. In 1979 and 1981, James Corder and Pearl
Corder executed three oil and gas leases covering their interest in
the tracts at issue in this case (collectively, “the leases”) (Dkt.
No. 8-1 at 2). Those leases do not contain a provision that
expressly provides the right to pool or unitize the property. Two
of the leases do provide for development “for the purpose of mining
and operating for oil and gas, and of building tanks, stations,
power plants, water stations and structures thereon to take care of
the said products, and of laying pipe lines on, over, and across
the leased premises and other lands of Lessor, for the purpose of
conveying oil, gas, steam or water therein from and to wells and

3

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
pipe lines on the premises and on adjoining and adjacent farms”
(Dkt. No. 6-1 at 2, 5). The third lease includes a grant of “all
other rights and privileges necessary, incident to, and convenient
for the economical operation of said tracts or parcels of land for
the production and transportation of said minerals.” Id. at 9.
On October 31, 1987, James Corder died intestate, passing his
fee simple interest in the tracts to his seven children. Id. at 2.
On September 5, 1989, the children executed deeds conveying the
tracts to brothers Gerald Corder, Randall Corder, and Roger Corder.
Significantly, none of these deeds reserved an interest in oil and
gas.

Nonetheless,

in

1992,

the

seven

siblings

completed

a

separation of the oil and gas interests, and each has since paid
one-seventh of the taxes on the oil and gas interest for each
property. Id.
By assignments effective September 2008 and April 2010, Antero
acquired the rights under the leases executed by James and Pearl
Corder in 1979 and 1981. Id.2 The deeds executed in 1989 led Antero
to believe that the three brothers owned an undivided interest in
the property, and it asked them to execute modifications to allow
2

Antero cites to records in Harrison County that apparently
reflect its interest in the subject tracts (Dkt. No. 6-2 at 5 n.3).
Although it asks the Court to take judicial notice of these
records, it did not attach them.
4

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
pooling. Id. In 2012, acknowledging that the original leases did
not

contain

pooling

or

unitization

authority,

Gerald

Corder,

Randall Corder, and Roger Corder executed such modifications to
include a pooling provision (Dkt. No. 6-1 at 14-22).
Their brothers’ interactions with Antero alerted the remaining
siblings to the fact that they actually had not reserved oil and
gas interests in the subject tracts (Dkt. No. 8-1 at 3). When they
attempted to execute corrective deeds to address this omission,
Roger Corder refused, arguing that he had never agreed to such a
reservation. The other siblings therefore sought to reform the
deeds to reflect their purported agreement by filing suit in the
Circuit Court of Harrison County, West Virginia. Id. By order
entered on November 3, 2015, Circuit Court Judge James A. Matish
found that a mutual mistake had occurred in 1989, and directed the
siblings to execute deeds reflecting the agreed reservation of
undivided interests in the oil and gas. Id. at 7-8. No documents
executed following Judge Matish’s order were attached to the
parties’ briefs.
II. STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for
dismissal on the grounds that a complaint does not “state a claim

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
upon which relief can be granted.” When reviewing a complaint, the
Court “must accept as true all of the factual allegations contained
in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). “While a complaint . . . does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his

‘entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citation omitted).
A court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986). “[A] complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 n.7 (quoting Twombly, 550 U.S. at 547). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A motion to dismiss “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992).
6

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
In deciding the motion, the court need not confine its inquiry
to the complaint; it may also consider “documents incorporated into
the complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). “A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes.”
Fed. R. Civ. P. 10(c). The court may also consider documents
attached to the motion to dismiss, so long as they are integral to
the complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
III. DISCUSSION
A.

Trespass
In their first claim for relief, the plaintiffs allege that

Antero is trespassing upon their oil and gas estate by “drill[ing]
horizontal

wells

through

strata

containing

Plaintiffs’

gas

estates,” and by taking “minerals from Plaintiffs’ reserves” (Dkt.
No. 1-1 at 3-4). Antero argues that the plaintiffs have failed to
state a claim for trespass because, under West Virginia law, tort
claims are barred by the gist of the action doctrine (Dkt. No. 6-2
at 6-7). The Court agrees with Antero that the plaintiffs’ trespass
claim is subsumed by the contract claim.

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
The “gist of the action” doctrine prevents parties from
“recasting” contract claims as tort claims. See Covol Fuels No. 4,
LLC v. Pinnacle Mining Co., LLC, 785 F.3d 104, 115 (4th Cir. 2015).
Under this doctrine, recovery in tort is barred in any of the
following circumstances: “(1) where liability arises solely from
the contractual relationship between the parties; (2) when the
alleged duties breached were grounded in the contract itself; (3)
where any liability stems from the contract; and (4) when the tort
claim essentially duplicates the breach of contract claim or where
the success of the tort claim is dependent on the success of the
breach of contract claim.” Gaddy Eng’g Co. v. Bowles Rice McDavid
Graff & Love, LLP, 746 S.E.2d 568, 577 (W. Va. 2013) (quoting Star
v. Rosenthal, 884 F. Supp. 2d 319, 328-29 (E.D. Pa. 2012)). A
plaintiff may not maintain a separate tort claim if the defendant’s
“obligations are defined by the terms of the contract” between the
parties. Id.
Even a cursory review of the plaintiffs’ allegations in this
case makes clear that their trespass claim is not independent of
the oil and gas leases. The leases themselves contain provisions
governing and defining the scope of Antero’s right to produce oil
and gas from the tracts in question. Coupled with these provisions,
Antero is subject to the ever-present implied duty of good faith
8

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
and fair dealing. Evans v. United Bank, Inc., 775 S.E.2d 500, 50809 (W. Va. 2015); Stand Energy Corp. v. Columbia Gas Transmission
Corp., 373 F. Supp. 2d 631, 644 (S.D.W. Va. 2005).3
The success of the plaintiffs’ trespass claim thus depends on
proving that Antero breached its obligations or exceeded the scope
of its rights under the lease agreements. They “seek only to
duplicate the same breaches of the same contractual duties.” Stern
v. Columbia Gas Transmission, LLC, No. 5:15cv98, 2016 WL 7053702,
at *5 (N.D.W. Va. Dec. 5, 2016); see also Rodgers v. Southwestern
Energy Co., No. 5:16cv54, 2016 Wl 3248437, at *3-*4 (N.D.W. Va.
June 13, 2016). Whether Antero acted properly by pooling the
plaintiff’s interests is governed by the terms of the leases, “not
the larger social policies embodied by the law of torts.” Gaddy
Eng’g, 746 S.E.2d at 577 (internal quotation omitted); see also
Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2016 WL 5441035,
at *7 (S.D.W. Va. Sept. 27, 2016). The gist of the action doctrine
thus precludes any attempt to “disguise” breach of contract claims
as trespass claims.

3

“West Virginia does not recognize a stand-alone claim for
breach of the implied covenant of good faith and fair dealing.” JJK
Mineral Co., LLC v. Noble Energy, Inc., No. 5:16cv112, 2017 WL
2662196, at *2 (N.D.W.Va. June 20, 2017).
9

PACKARD v. ANTERO

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
The plaintiffs contend that they may maintain a trespass claim
because “[a]n oil and gas lease (or other mineral lease) is both a
conveyance and a contract.” Syl. Pt. 1, Chesapeake Appalachia,
L.L.C. v. Hickman, 781 S.E.2d 198 (W. Va. 2015) (quoting Syl. Pt.
1, McCullough Oil, Inc. v. Rezek, 346 S.E.2d 788 (W. Va. 1986)).
Because an oil and gas lease conveys an estate of limited duration,
McCullough Oil, 346 S.E.2d at 793, the plaintiffs assert that
Antero may be held liable for trespass if it exceeds the scope of
its easement. See, e.g., Shock v. Holt Lumber Co., 148 S.E. 73, 7475 (W. Va. 1929).
The plaintiffs also rely on a North Carolina decision holding
that “[e]ven an authorized entry can be trespass if a wrongful act
is done in excess of and in abuse of authorized entry.” Miller v.
Brooks, 472 S.E.2d 350, 355 (N.C. 1996). This rule, however, finds
its

genesis

in

the

tortious

conduct

of

individuals

who

may

otherwise have had consent to be on property. See, e.g., Blackwood
v. Cates, 254 S.E.2d 7 (N.C. 1979) (false arrest while on property
with consent); Freeman v. Gen. Motors Acceptance Corp., 171 S.E. 63
(N.C.

1933)

(use

of

“violent

and

abusive

language”

while

repossessing car with permission).
Here, the plaintiffs do not allege that Antero lacks the
lawful authority to enter their mineral strata and remove gas, but
10

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
rather that it does not have the right to gather the gas and
account for their interest by pooling the tracts with adjacent
properties

(Dkt.

No.

1-1

at

3-4).

Whether

the

leases

and

modifications grant Antero the right to do so is a question of
contract interpretation, not real property law. Therefore, the
plaintiffs’ trespass claim is barred by the gist of the action
doctrine.
B.

Breach of Contract
In their second claim, the plaintiffs allege that “Antero has

breached the lease agreements with the plaintiffs and violated its
duty to act in good faith and to deal fairly with the Plaintiffs by
horizontally

drilling

into

strata

containing

Plaintiffs’

gas

estates and pooling and unitizing the gas without authority to do
so” (Dkt. No. 1-1 at 4-5). In its motion to dismiss, Antero
persuasively argues that the plaintiffs “failed to plead the
necessary elements of [a] claim” for breach of contract (Dkt. No.
6-2 at 7-9).
This Court has previously reasoned that:
Under West Virginia law, a prima facie breach of contract
claim requires the plaintiff to allege four elements: (1)
that there is a valid, enforceable contract; (2) that the
plaintiff has performed under the contract; (3) that the
defendant has breached or violated its duties or

11

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
obligations under the contract; and
plaintiff has been injured as a result.

(4)

that

the

KBS Preowned Vehicles, LLC v. Reviva, Inc., No. 1:13cv138, 2014 WL
12591890,

at

*2

(N.D.W.Va.

Mar.

26,

2014)

(citing

Dan

Ryan

Builders, Inc. v. Crystal Ridge Dev., Inc., No. 1:09CV161, 2013 WL
5352844, at *11 (N.D.W.Va. Sept. 24, 2013)); see also Charleston
Nat’l Bank v. Sims, 70 S.E.2d 809, 813 (W. Va. 1952) (quoting Jones
v. Kessler, 126 S.E. 344 (W. Va. 1925)); Exec. Risk Indem., Inc. v.
Charleston Area Med. Ctr., Inc., 681 F. Supp. 2d 694, 714 (S.D.W.
Va. 2009) (citing 23 Williston on Contracts § 63:1 (Richard A.
Lord, ed., 4th ed. West 2009)) (same elements).4
Such precedent plainly requires plaintiffs to do more than
make passing or inferential reference to the existence of a
contract. In Cather v. Seneca-Upshur Petroleum, Inc., the plaintiff

4

The plaintiffs rely on an articulation of the elements of
breach of contract that excludes the plaintiffs’ performance. See
Choice Hotels Inter., Inc. v. Fisher, No. 2:13-CV-23, 2014 WL
795046, at *5 (N.D.W.Va. Feb. 27, 2014); see also Sneberger v.
Morrison, 776 S.E.2d 156, 171 (W. Va. 2015) (citing Syl. Pt. 1,
State ex rel. Thornhill Group, Inc. v. King, 759 S.E.2d 795 (W. Va.
2014)) (“A claim for breach of contract requires proof of the
formation of a contract, a breach of the terms of that contract,
and resulting damages.”). None of the cited cases overruled or even
mentioned the longstanding requirement that a plaintiff allege
performance of his own obligations. See, e.g., Reynolds v. Ascent
Resources-Marcellus, LLC, No. 1:16cv77, 2017 WL 1959220 (N.D.W.Va.
May 11, 2017); KBS Preowned Vehicles, No. 1:13cv138 2014 WL
12591890; Dan Ryan Builders, Inc., No. 1:09CV161, 2013 WL 5352844.
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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
alleged only that defendant Forest Oil was “a lessee or ultimate
assignee of the leases” at issue. No. 1:09CV139, 2010 WL 3271965,
at

*3

(N.D.W.Va.

Aug.

18,

2010).

Because

the

Court

was

not

satisfied that this allegation clearly established Forest Oil’s
connection

to

the

contracts,

it

granted

the

plaintiff

an

opportunity to file an amended complaint detailing the corporate
merger that resulted in Forest Oil’s interest. Id. at *4.
Here, much like Cather, the plaintiffs have not alleged any
facts establishing their ownership in or Antero’s connection to the
leases. In addition, they have utterly failed to allege that they
had or performed obligations under the lease agreements. At the
hearing on April 4, 2018, the Court granted them leave to amend
their complaint with a more definite statement, explaining how they
acquired an interest in the property, as well as how Antero became
assignee of the lessee’s interests under the lease agreements. See
Fed. R. Civ. 12(e); see also Rodgers, No. 5:16CV54, 2016 WL
3248437, at *3 (allowing plaintiffs to address the fact that they
“did not attach the lease at issue or identify the date, acreage,
parties, any language regarding royalty provisions, the amounts
paid or underpaid, or any other specific details regarding the
contract.”). In doing so, the Court rejected three arguments raised
by Antero seeking to establish that it “had the right to pool based
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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
on the lease modifications as well as the express language and
implications of the Subject Leases” (Dkt. No. 9 at 12).
First, Antero argues that the language of the leases expressly
contemplates pooling, much like the leases at issue in Stern v.
Columbia Gas Transmission, LLC, No. 5:15CV98, 2016 WL 7053702
(N.D.W.Va. Dec. 5, 2016) (Stamp, J.), where the plaintiff lessors
filed suit, alleging that the defendant had “pooled and unitized
their

properties

without

contractual

authority.”

The

court

reasoned, however, that “the express language of the subject leases
permit[ted] pooling or unitization” because “[t]he granting clause
of each subject lease provide[d] the defendants with ‘all other
rights and privileges necessary, incident to, or convenient for the
operation of the [plaintiffs’ property], alone and conjointly with
other lands.’” Id. at *1-*2 (emphasis in original).
Two of the leases at issue here provide for development “for
the purpose of mining and operating for oil and gas, and of
building

tanks,

stations,

power

plants,

water

stations

and

structures thereon to take care of the said products, and of laying
pipe lines on, over, and across the leased premises and other lands
of Lessor, for the purpose of conveying oil, gas, steam or water
therein from and to wells and pipe lines on the premises and on

14

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
adjoining and adjacent farms” (Dkt. No. 6-1 at 2, 5). The third
lease grants “all other rights and privileges necessary, incident
to, and convenient for the economical operation of said tracts or
parcels of land for the production and transportation of said
minerals.” Id. at 9. Unlike the language at issue in Stern, none of
the leases in this case expressly provides that the subject tracts
may be operated “conjointly with other lands.” In fact, the only
mention of “adjoining” land specifically references only “conveying
oil, gas, steam or water . . . from and to wells and pipe lines on
the premises and on adjoining and adjacent farms,” not operations.
Therefore, the express language of the leases does not grant Antero
the right to pool the plaintiffs’ interests.
Second, Antero argues that it has the right to pool under the
lease modifications it obtained from Gerald Corder, Randall Corder,
and Roger Corder in 2012 (Dkt. No. 9 at 4-5). Although those
modifications expressly provide for pooling (Dkt. No. 6-1 at 1422), no party has addressed the effect, if any, that the 2015
corrective deed had on those lease modifications. Therefore, the
Court declines to dismiss the plaintiffs’ breach of contract claims
on this ground.
Finally, Antero posits that an “implied right to pool” can be
inferred from the implied covenants to develop and protect against
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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
drainage (Dkt. No. 9 at 8-9). Although Antero has asked the Supreme
Court of Appeals to recognize this right, it has not yet done so.
See

Brief

of

Respondent

Antero

Resources

Corporation,

L&D

Investments, Inc. v. Mike Ross, Inc., No. 17-0432 (W. Va.), 2017 WL
7202121, at *16-*29. Moreover, Antero has not cited to any other
state that has recognized such an implied right.
C.

Implied Covenant to Protect Against Drainage
In their third claim, the plaintiffs allege that Antero has

breached the implied duty to protect against drainage “by draining
and pooling the gas from Plaintiffs’ properties without authority
to do so” (Dkt. No. 1-1 at 6). Antero’s contention that “the
complaint’s allegations do not constitute a case of drainage” is
well-founded (Dkt. No. 6-2 at 10).
In West Virginia, “[w]here the same lessee holds under two
adjoining lessors, he may not fraudulently or evasively so drill
his wells as to drain the property of one to the detriment of the
other.” Syl. Pt. 5, Croston v. Emax Oil Co., 464 S.E.2d 728 (W. Va.
1995) (quoting Syl. Pt. 1, Dillard v. United Fuel Gas Co., 173 S.E.
573 (W. Va. 1934)). “This duty to protect against drainage is
predicated upon the notion that, in the absence of an express
provision to the contrary in a lease, there is an implied covenant

16

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MEMORANDUM OPINION EXPLAINING ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS [DKT. NO. 19]
in the lease that the lessee will protect lessor's property against
substantial drainage.” Id. at 733 (internal citation omitted).
The facts alleged by the plaintiffs simply do not support a
claim for drainage. According to the complaints, Antero has drilled
horizontal wells through the plaintiffs’ mineral interests and is
producing the property as part of a pooled unit (Dkt. No. 1-1 at 23). However, the plaintiffs have not alleged that Antero is
draining neighboring property to their detriment, Croston, 464
S.E.2d 728, Syl. Pt. 5, but rather that it is directly producing
gas from the subject tracts in a manner that they contend is
impermissible under the leases. The Court therefore concludes that
they have failed to state a claim for breach of the implied duty to
protect against drainage.
IV. CONCLUSION
For the reasons discussed, the Court GRANTED in part and
DENIED in part Antero’s motions to dismiss.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion to counsel of record.
DATED: May 23, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
17