Barr et al v. EQT Production Company
Filing
17
MEMORANDUM OPINION AND ORDER DENYING 6 PLAINTIFFS' MOTION TO REMAND. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/7/2014. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LARRY BARR and ELVA BARR,
Plaintiffs,
v.
Civil Action No. 5:14CV57
(STAMP)
EQT PRODUCTION COMPANY,
a Pennsylvania Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO REMAND
I.
Procedural History
The plaintiffs, Larry Barr and Elva Barr (“the Barrs”), filed
this action in the Circuit Court of Wetzel County, West Virginia on
April 7, 2014. The Barrs allege that the defendant, EQT Production
Company (“EQT”), has been conducting activities on their property
that constitute trespass and a nuisance.
property in question.
breach
of
contract,
EQT well pads are on the
The complaint consists of six counts:
unjust
enrichment,
negligence, and punitive damages.
conversion,
nuisance,
The plaintiffs are seeking
damages, both general and punitive; abatement of the activities on
the plaintiffs’ property by the defendant; and a declaration by
this Court that all the monies improperly obtained by EQT through
its failure to pay royalties to the plaintiffs should be placed in
a constructive trust.
The defendant then filed a notice of removal with this Court.
The Barrs have now filed a motion to remand.
After the motion was
briefed, this Court requested a surreply be filed by EQT. EQT then
filed a surreply. Accordingly, the motion is now fully briefed and
ripe for consideration.
II.
Facts
In its notice of removal, the defendant provided the affidavit
of Bryant Wayne Bowman, II (“Bowman”), an EQT regional land
manager, to support its amount in controversy assertion.
Bowman
stated in the affidavit that the amount in controversy exceeded
$75,000.00 because of the plaintiffs’ abatement request.
Bowman
reasoned that ceasing activity at the well pad would cost more than
$75,000.00 in lost mineral rights and acreage value, along with the
costs of obtaining a new well pad.
In their motion to remand, the Barrs argue that EQT is unable
to establish that the amount in controversy exceeds $75,000.00.
The Barrs contend that the complaint does not specifically state
the amount in controversy.
Further, the Barrs assert that the
defendant has not met the damages threshold because it would not
have to cease all activity at the well pad.
The Barrs argue that
EQT has several other alternatives that it could use to address the
plaintiffs’ concerns of noise, odor, and smoke (i.e. the defendant
could
construct
sound
walls/acoustic
barriers).
Thus,
the
plaintiffs assert that the defendant’s full cessation argument is
“gross speculation.”
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In response, EQT asserts that the Barrs have not limited their
abatement request to “noise, odor, smoke, etc.” but rather have
made a much broader request for relief.
Further, EQT argues that
it is unclear if any of the methods suggested by the Barrs will
fully address the underlying issues and may still require EQT to
cease all activity. EQT also contends that Bowman’s assertions are
not speculative and that the Barrs have failed to provide evidence
that contradicts his assertion that the costs of abatement would
exceed $75,000.00.
In reply, the Barrs argue that they cannot seek partial or
complete cessation of EQT’s activities because of a supplemental
release agreement entered into between the parties.
The Barrs
assert that this agreement released EQT from “any and all damages
associated with and/or as the result of operation” of the well pads
on the property.
Thus, the Barrs contend that this agreement
forecloses the Barrs from seeking full abatement by EQT.
As such,
the Barrs argue that EQT has provided irrelevant evidence and this
case should be remanded as EQT has not provided evidence that
alternative means of abatement would cost EQT more than $75,000.00.
This Court then directed EQT to file a surreply discussing the
issue of the supplemental release agreement entered into by the
Barrs.
In its surreply, EQT asserts that the Barrs have conceded
that they may only pursue litigation as to two of the four wells
placed in the well pad at issue because of the supplemental release
3
agreement.
Further, EQT argues that pursuant to the supplemental
affidavit of Bryan Wayne Bowman, II filed with the surreply, EQT
has shown that if operations at the two wells must cease the amount
in
controversy
will
exceed
$75,000.00
(a
cost
in
excess
of
$1,000,000.00).
Based on the following analysis, this Court finds that the
plaintiffs’ motion to remand must be denied.
III.
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.
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, exclusive of interest
and costs pursuant to 28 U.S.C. § 1332(a).
The party seeking
removal bears the burden of establishing federal jurisdiction. See
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.
Id.
Although courts strictly construe the statute granting removal
jurisdiction, Doe v. Allied Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993), the court is not required “to leave common sense
4
behind” when determining the amount in controversy.
Mullens v.
Harry’s Mobile Homes, 861 F. Supp. 22, 24 (S.D. W. Va. 1994).
When
the amount in controversy is not apparent on the face of the
plaintiff’s complaint, the federal court must attempt to ascertain
the amount in controversy by considering the plaintiff’s cause of
action as alleged in the complaint and any amendments thereto, the
notice of removal filed with a federal court, and other relevant
materials in the record.
14C Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 3725 at 73 (3d ed. 1998).
IV.
Discussion
In this action, the main contention is whether or not EQT
provided evidence to support its notice of removal.
The Barrs’
complaint states that there are several wells on the well site at
issue in this litigation, the “Big 57 Wells” site.
Further, the
complaint avers that two of the wells at the “Big 57 Wells” site
are subject to a “supplemental release agreement” which releases
EQT from “any and all damages associated with and/or as the result
of operations” of the two wells (“release wells”).
ECF No. 1-1.
The complaint then goes on to discuss two more wells which were
placed on the site in October 2013 (the “October 2013 wells”) which
required the construction of a hard gravel berm.
The complaint
also alleges that the location, construction, and operation of the
well pad site has caused unreasonable levels of noise, odor, and
smoke.
However, the complaint does not state that the Barrs are
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not seeking damages only for the October 2013 wells or that they
believe that the “supplemental release agreement” is binding or
does not allow them to seek damages.
Additionally,
the
Barrs’
allegations
as
to
nuisance
and
negligence because of surface damages do not specifically state
that they are only seeking damages for the October 2013 wells.
Lastly, the Barrs request, in part, compensatory and punitive
damages, the abatement of those activities adjudged to be a
nuisance, and costs and attorney’s fees.
A.
Supplemental Release Agreement
The Barrs argue, in their reply to the motion to remand, that
the “supplemental release agreement” forecloses them from seeking
relief as to the release wells.
Thus, the Barrs contend that EQT
has not provided evidence in its notice of removal that the damages
for those two wells would amount to $75,000.00 exclusive of
interest and costs because it failed to specifically address the
October 2013 wells by themselves.
However, this Court ordered a surreply because this Court did
not believe that the Barrs had previously addressed their stance
that they were foregoing any damages as to the release wells.
As
such, this Court afforded EQT an opportunity to address such a
claim.
EQT was then able to file a more narrowly tailored
affidavit from Bowman, EQT’s regional land manager.
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This Court now finds that the affidavit may be considered as
the Barrs addressed for the first time their stance that they were
not seeking damages as to the release wells in their reply to the
motion to remand.
In equity, such consideration must be given.
Thus, given the initial affidavit provided in the notice of removal
and the subsequent affidavit addressing the October 2013 wells,
this Court finds that if abatement is required, then EQT has met
the $75,000.00 threshold.
EQT has shown that abatement would
require the cessation of production, value lost of mineral rights
and acreage value, the costs of obtaining a new well pad permit or
permits,
and
new
construction.
These
costs
are
more
than
sufficient to meet the $75,000.00, exclusive of interest and costs,
threshold.
B.
Abatement of the Nuisance
The Barrs also contend, however, that full cessation of
activity is not required. The Barrs assert that other alternatives
could be used to abate the noise, smoke, and odor that they are
complaining of.
On the other hand, the Barrs also state in their
complaint that the proximity of the wells and operations thereon
are part of the issue.
ECF No. 1-1, ¶ 9.
“Courts generally determine the amount in controversy by
reference
to
the
plaintiff's
complaint.”
JTH
Tax,
Inc.
v.
Frashier, 624 F.3d 635, 638 (4th Cir. 2010) (citations omitted).
“In actions seeking declaratory or injunctive relief, it is well
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established that the amount in controversy is measured by the value
of the object of the litigation.” Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 347 (1977).
Further, courts “ascertain the
value of an injunction for amount in controversy purposes by
reference to the larger of two figures: the injunction’s worth to
the plaintiff or its cost to the defendant.” Dixon v. Edwards, 290
F.3d 699, 710 (4th Cir. 2002).
In this case, the cost to EQT has been shown to be more than
$75,000.00, exclusive of interests and costs, if abatement of
activity of the October 2013 wells is sought.
“[t]he act of eliminating or nullifying”.
3 (9th ed. 2009).
An abatement is
Black’s Law Dictionary
In this case, the Barrs are not only requesting
in their complaint that EQT eliminate or nullify the noise, smoke,
and odor, but are also complaining that the location and operation
of the October 2013 wells has created a nuisance that must be
abated.
requested
Accordingly, this Court finds that because abatement is
in
the
complaint,
and
such
abatement
includes
the
complained of location and operation of the October 2013 wells, the
amount in controversy may include the costs to EQT of abatement.
As such, the amount in controversy requirement has been met.
V.
Conclusion
For the reasons stated above, this Court finds that the
plaintiffs’ motion to remand should be DENIED.
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
October 7, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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