Bird et al v. Turner et al

Filing 35

MEMORANDUM OPINION AND ORDER DENYING 21 MOTION TO REMAND, DENYING IN PART AND GRANTING IN PART 32 MOTION TO STRIKE, OR IN THE ALTERNATIVE, MOTION FOR LEAVE TO FILE A SURREPLY AND SETTING FORTH BRIEFING SCHEDULE FOR PENDING MOTIONS. The Cler k of Court is therefore DIRECTED to file the Defendants' Surreply. Additionally, this Court had previously stayed the briefing of two pending motions, CHK Utica and Chesapeake's Motion to Compel Bilateral Arbitration and the other Defendant s' Motion to Stay pending arbitration, until after this Court had disposed of the Plaintiffs' Motion to Remand. Thus, those Motions are now ready to be briefed. Accordingly, the Plaintiffs are DIRECTED to file a response to those Motions, if necessary, on or before June 11, 2015. The Defendants are DIRECTED to file a Reply, if necessary, on or before June 18, 2015. Signed by Senior Judge Frederick P. Stamp, Jr on 5/29/15. (copy to counsel via CM/ECF)(lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN L. BIRD and JACQUELINE G. BIRD,
his wife, individually and on
behalf of similarly situated
West Virginia citizens,
Plaintiffs,
v.

Civil Action No. 5:14CV97
(STAMP)

CHRIS TURNER, individually and
as an agent and/or employee
of Kenyon Energy, LLC,
Chesapeake Exploration, LLC,
Chesapeake Appalachia, LLC,
and/or CHK Utica, LLC,
KENYON ENERGY, LLC,
CHESAPEAKE EXPLORATION, LLC
CHESAPEAKE APPALACHIA, LLC,
CHK UTICA, LLC,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
P. NATHAN BOWLES, JR., ESQ. and
JOHN DOES, and any John Doe
individually or any entity acting
in concert with these defendants,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND,
DENYING IN PART AND GRANTING IN PART
MOTION TO STRIKE, OR IN THE ALTERNATIVE,
MOTION FOR LEAVE TO FILE A SURREPLY AND
SETTING FORTH BRIEFING SCHEDULE FOR PENDING MOTIONS
I.

Procedural History

The plaintiffs, John L. Bird and Jacqueline G. Bird, filed
this action in the Circuit Court of Hancock County, West Virginia
on June 19, 2014.

The plaintiffs’ complaint alleges that the

plaintiffs, and others within West Virginia that are similarly

situated, were subject to fraudulent common law liens in violation
of West Virginia Code § 38-16-101.

Further, the plaintiffs make

claims against the defendants regarding: the unlawful practice of
law, breach of fiduciary duties, intentional misrepresentation and
fraud, negligent misrepresentation, creation of a cloud on title,
slander of title, and civil conspiracy.

The plaintiffs provided a

lease to defendant Chesapeake Appalachia, LLC (“Chesapeake”), who
then assigned the lease to defendant CHK Utica, LLC (“CHK Utica”).
CHK

Utica

then

entered

a

deed

collateral to secure a loan.

of

trust

using

the

lease

as

The plaintiffs then attempted to

refinance their home which was denied.

They then brought the

current action.
The defendants jointly removed this action to this Court
asserting that defendant P. Nathan Bowles, Jr., Esq. (“Bowles”),
who is domiciled in West Virginia, was fraudulently joined to this
action and thus diversity exists between the parties. Further, the
defendants argue that they are entitled to removal based on the
Class Action Fairness Act (“CAFA”).

The plaintiffs then filed a

motion

briefed.

to

remand

which

was

fully

Thereafter,

the

defendants filed a motion to strike the plaintiffs’ reply, or in
the alternative, for leave to file a surreply.

These matters are

now ripe for review.1

1

There are also two pending motions: CHK Utica and
Chesapeake’s motion to compel bilateral arbitration and the other
defendants’ motion to stay this case pending arbitration.
The
2

II.
A.

Facts

Fraudulent Joinder
In their notice of removal, the defendants argue that Bowles

was fraudulently joined in this action.

The defendants assert

specific arguments as to each claim the plaintiffs have raised and
why Bowles is not liable under those claims.

The plaintiffs

address each of the defendants’ arguments in their motion to remand
and contend that Bowles has a legal interest in the outcome of this
action.

In response, the defendants argue that the case was

properly removed pursuant to CAFA and the plaintiffs have not
challenged that alternative basis for removal.

Further, the

defendants assert that their arguments for fraudulent joinder are
soundly

based.

In

reply,

the

plaintiffs

address

the

CAFA

requirements, argue that those requirements are not met, and
reiterate their arguments against fraudulent joinder.
B.

CAFA
In their notice of removal, the defendants argue that the CAFA

requirements have been met in this case.

The defendants assert

that minimal diversity is met as Bowles is the only non-diverse
defendant.

Further, the defendants contend that the numerosity

requirement is met as the class, at a minimum, would encompass the
West Virginia oil and gas leases described in Exhibit A, Schedule

briefing of those motions has been stayed pending this Court’s
decision on the motion to remand.
3

1 of the deed of trust (“the deed of trust”).

ECF No. 1-4.

Additionally, the defendants argue that the aggregate value of
those leases exceeds $5,000,000.00 if a judgment is entered in
favor of the plaintiffs which is based on the affidavit of Monty C.
Mayfield.

ECF No. 1-6.

In their response to the motion to remand, the defendants
assert that this case was properly removed pursuant to CAFA because
there is minimal diversity as only one defendant is not diverse
from the plaintiffs.

Further, even if not, the defendants contend

that Bowles was fraudulently joined.
The plaintiffs argue in their reply that CAFA’s numerosity and
amount

in

controversy

requirements

have

not

been

met.

The

plaintiffs assert that they are seeking relief for a much narrower
class of plaintiffs who dealt with persons unauthorized to practice
law, performed acts to create clouds on titles and fraudulent
liens, and knew the damage that could result.
same

reason,

the

plaintiffs

contend

that

Further, for the
the

$5,000,000.00

threshold is not met because the defendants based their amount in
controversy

on

all

West

Virginia

oil

and

gas

leases.

More

specifically, the plaintiffs cite three examples of lessors they
believe should not be considered in this Court’s calculations.
C.

Motion to Strike
The defendants then filed a motion to strike the plaintiffs’

reply.

The defendants assert that the plaintiffs’ reply should be

4

stricken because the plaintiffs addressed CAFA in their reply but
did not do so in their motion to remand.

Thus, the defendants

argue that the plaintiffs have incorrectly raised new arguments
that the defendants were not able to address.
the

defendants

request

a

deadline

to

In the alternative,

file

a

surreply.

The

defendants filed a surreply as an exhibit.
In their surreply, the defendants argue that the class to be
used for numerosity is the class defined in the complaint’s class
definition.
specific

The defendants assert that even when using the most

definition

in

the

complaint,

this

definition

still

includes all oil and gas leases used as collateral in the deed of
trust, which exceeds 100.

Additionally, the defendants argue that

even if removing the three lessors that the plaintiffs argue should
not

be

counted,

requirement.

the

defendants

still

meet

the

100

person

Also, there were 343 leases pledged as collateral

under the deed of trust and some of those leases have multiple
lessors.
In

response

to

the

defendants’

motion

to

strike,

the

plaintiffs refer this Court to the arguments made in their reply
regarding the CAFA requirements.

The plaintiffs also contend that

the law cited by the defendants to support their motion to strike
is inapplicable as it is based on the Federal Rules of Appellate
Procedure rather than the Federal Rules of Civil Procedure.

5

Based on the analysis that follows, this Court finds that the
plaintiffs’

motion

to

remand

is

denied.

Additionally,

the

defendants’ motion to strike, or in the alternative, motion for
leave to file surreply is denied in part and granted in part.
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.

CAFA

confers original jurisdiction on district courts over class actions
in which (1) “the matter in controversy exceeds the sum or value of
$5,000,000,

exclusive

of

interest

and

costs,”

28

U.S.C.

§ 1332(d)(2); (2) “any member of a class of plaintiffs is a citizen
of a State different from any defendant,” id. § 1332(d)(2)(A); and
(3)

“there

are

100

or

more

plaintiff

class

members,”

id.

§ 1332(d)(5)(B). West Virginia ex rel. McGraw v. CVS Pharm., Inc.,
646 F.3d 169, 174 (4th Cir. 2011).

“[N]o antiremoval presumption

attends cases invoking CAFA, which Congress enacted to facilitate
adjudication of certain class actions in federal court.”

Dart

Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554
(2014) (citations omitted).

6

IV.
A.

Discussion

Motion to Strike/Motion to File Surreply
The defendants argue that the plaintiffs’ reply to the motion

to remand should be stricken as the plaintiffs raised their CAFA
arguments for the first time in that filing but had not raised it
in

the

initial

motion

to

remand.

In

the

alternative,

the

defendants request leave to file a surreply.
The local rules of this Court state that a party should not
file a surreply without first obtaining the permission of the
court.

L. R. Civ. P. 7.02(b)(4); Thomas v. Branch Banking & Trust

Co., 443 F. Supp. 2d 806, 809 n.2 (N.D. W. Va. 2006).

Generally,

a surreply is permitted when a party seeks to respond to new
material that an opposing party has introduced for the first time
in its reply brief. Schwarzer, Tashima, & Wagstaffe, Federal Civil
Procedure Before Trial 12:110 (The Rutter Group 2008).
Khoury

v.

Meserve,

268

F.

Supp.

2d

600,

605

(D.

See also
Md.

2003)

(“Surreplies may be permitted when the moving party would be unable
to contest matters presented to the court for the first time in the
opposing party’s reply.”).

If a court does not rely upon the new

material raised in the opposing party’s reply brief to reach its
decision

in

unnecessary.

a

matter,

then

a

surreply

is

superfluous

and

See e.g. EEOC v. LA Weight Loss, 509 F. Supp. 2d 527,

540 (D. Md. 2007) (denying the parties’ motions to file surreplies
because the court did not rely upon the new case law and evidence

7

in making its decision); First Penn-Pacific Life Ins. Co. v. Evans,
162 F. Supp. 2d 423, 430 (D. Md. 2001) (denying plaintiff leave to
file a surreply “[s]ince the Court will not be considering the
additional contentions advanced”).

In those circumstances, a

motion for leave to file a surreply should be denied.
In this case, the plaintiffs first raised specific CAFA
arguments in their reply to the motion to remand.

Thus, this case

presents the typical scenario that would permit a surreply. Khoury
v. Meserve, 268 F. Supp. 2d at 605 (“Surreplies may be permitted
when the moving party would be unable to contest matters presented
to the court for the first time in the opposing party’s reply.”).
Additionally, this Court will rely on the new material raised by
the defendants in its surreply to make the findings below.
such, the surreply was not superfluous.

As

For those reasons, this

Court finds that the defendants’ motion to strike, or in the
alternative, for leave to file a surreply, is denied in part as to
the motion to strike, and granted in part as to the alternative
motion for leave to file a surreply.
B.

CAFA
The parties disagree as to whether the defendants have shown

that the numerosity and amount in controversy requirements for

8

removal pursuant to CAFA are met in this action.2

This Court will

consider those arguments in turn.
1.

Numerosity

In this case, an affidavit completed by Monty C. Mayfield
(“Mayfield”), a land supervisor for Chesapeake, was filed with the
defendants’ notice of removal.

Mayfield states that he has

reviewed the complaint, specifically paragraph 27, and has found
that there are 343 oil and gas leases, including the plaintiffs’
lease, that were pledged by CHK Utica pursuant to the deed of
trust.

Mayfield further avers that the number of lessors on those

343 oil and gas leases exceeds 100 different individuals or
entities. This figure is used as support by the defendants for its
assertion that the CAFA numerosity requirement is met.
The plaintiffs argue that the defendants’ description of the
proposed class is too broad.

The plaintiffs assert that a more

narrow definition is required that is focused on those whose cases
involved “the complex facts of Mr. and Mrs. Bird’s case”.
30 at 6.

ECF No.

The plaintiffs cite lessors who they believe do not fit

into the proposed class, such as the Congo Corporation which
accounts for 32.1210 acres and a lease that has eight modifications
of the standard lease document.

The plaintiffs assert that the

2

The parties do not disagree that the minimal diversity
requirement is met.
However, this Court will note here that
minimal diversity is met as at least one of the plaintiffs and at
least one of the named defendants are diverse from one another. 28
U.S.C. § 1332(d)(2)(A).
9

Congo Corporation therefore does not fall into the class as the
class

only

includes

persons

who

were

unrepresented

while

negotiating the lease, were incorrectly paid, and were given
incorrect information.

The plaintiffs also cite a lease that was

the subject of 4 Suns Ranch, LLC v. Buckeye Oil Producing Company,
et al., 5:12CV110, which the plaintiffs state has been released and
thus decreases Mayfield’s numbers.

Further, the plaintiffs cite

Frances Juszczak and the Juszczak Development Company, Inc. (“the
Juszczaks”), who are lessors on multiple leases.

The plaintiffs

contend that Mayfield’s affidavit is unclear on how a person who is
a lessor on multiple leases was counted.

Given all of these

alleged issues, the plaintiffs argue that Mayfield’s affidavit is
too vague to support a finding that the numerosity requirement is
met.
CAFA “defines ‘class members’ to mean ‘the persons (named or
unnamed)

who

fall

within

the

definition

of

the

proposed

or

certified class,’ § 1332(d)(1)(D).” Mississippi ex rel. Hood v. AU
Optronics Corp., 134 S. Ct. 736, 742 (2014).

District courts have

found that “[t]here is nothing to indicate that the [above]
reference [by the Hood court] to the definition of the proposed or
certified class was unintentional.”

Stump v. Camp, No. CIV. A.

13-6739, 2014 WL 582813, at *5 (E.D. La. Feb. 13, 2014); see also
McMullen v. Synchrony Bank, No. CV 14-1983, 2015 WL 632212, at *2
(D.D.C. Feb. 13, 2015) (citing the Hood numerosity language and

10

reviewing the plaintiff’s given class definition); Fergerstrom v.
PNC Bank, N.A., No. CIV. 13-00526 DKW, 2014 WL 1669101, at *9 (D.
Haw. Apr. 25, 2014) (“when a class has not already been certified,
CAFA jurisdiction is determined by the definition of the proposed
plaintiff class”); Louisiana v. Zealandia Holding Co., No. CIV.A.
13-6724, 2014 WL 1378874, at *4 (E.D. La. Apr. 8, 2014) (citing the
specific Hood language and finding that a more narrow approach is
applied to a numerosity determination rather than the diversity
determination under CAFA).
The above courts have interpreted this language narrowly given
the following cannon: “when the statute’s language is plain, the
sole function of the courts-at least where disposition required by
the text is not absurd-is to enforce it according to its terms.”
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000) (internal quotations omitted, citations omitted).
“The preeminent canon of statutory interpretation requires [the
court] to ‘presume that [the] legislature says in a statute what it
means and means in a statute what it says there.’”

BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183 (2004) (citing Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253 (1992)).
Thus, pursuant to Hood, this Court must now review the
plaintiff’s proposed class definition and determine whether the
defendant has provided sufficient evidence to support a finding, by

11

the preponderance of the evidence, that there are more than 100
persons in the proposed class.
The plaintiffs provide three possible class definitions in
their complaint.

ECF No. 1-1 at ¶ 27, 137, & 138.

However, both

parties focus on the definition provided in paragraph 27:
The class of Plaintiffs of all other similarly situated
West Virginia citizens, hereinafter “the Class”, is
comprised of all persons to, with, or about which the
Defendants and/or their agents made representations;
explained, negotiated and/or processed agreements
relative to Plaintiffs’ mineral rights; assigned,
conveyed or encumbered said purported mineral rights; and
recorded documents, creating public records relative to
all of the above so as to: (1) cloud the titles of class
members’ property; (2) prevent the free alienation of
Plaintiffs’
real
property
thereby
violating
the
Plaintiffs’ constitutional rights; and (3) damaging class
members generally.
Although the plaintiffs argue that this definition must be read
with the entire complaint, Hood, as the law cites above, provides
a more narrow required reading. However, this Court finds that the
plaintiffs’ reasons for wanting a broader reading are unfounded as
the class definition appears to cover all of the allegations made
against the defendants in the complaint.
The defendants have provided data concerning every lessor
whose oil and gas lease was used as collateral in the deed of
trust.

ECF No. 1-4.

figure

is

correct

The defendants assert that the use of this

because

to

be

part

of

the

proposed

class

definition, the plaintiff must be a lessor whose lease is present
in that deed of trust and must have been processed by some of the

12

defendants relative to the plaintiffs’ mineral rights.

Further,

the defendants argue that all of these would be “encumbered” as
used in the class definition.
The main issue between the parties therefore is whether or not
the deed of trust provided by the defendants represents persons who
fall into the three items listed at the end of the proposed class
definition which the plaintiffs assert damaged those persons.
However, this is something that would later come with discovery.
As the defendants point out, the deed of trust provides the best
option, at this time, for accessing who may fall within the
proposed class definition.

Those persons are lessors who have

dealt with the defendants in some way and have “assigned, conveyed
or encumbered” their mineral rights.
As to the plaintiffs’ arguments that the counting completed in
the Mayfield affidavit may be incorrect, this Court finds that this
argument does not support remand. A cursory look at only the first
eight pages of the names attached to the deed of trust reveals that
there are 100 or more persons in the proposed class.

ECF No. 1-4

at 5-12. This takes into account any (1) duplicate lessors and (2)
lessors that do not appear to be individuals but rather are
“entities” that may have been represented by separate counsel or
may have been more sophisticated bargainers during the negotiation
process.

Visendi v. Bank of Am., N.A., 733 F.3d 863, 869 (9th Cir.

2013) (this Court, in its cursory count, only counted duplicate

13

lessors once as “the language of CAFA concerns ‘persons,’ not
properties.

28 U.S.C. § 1332(d)(11)(B)(I).”).

Thus, this Court

cannot find that the plaintiffs’ issues with the Mayfield affidavit
are sound as to the numerosity requirement. Even without the three
examples of lessors the plaintiffs assert should not be counted,
the class size clearly encompasses more than 100 individuals. This
requirement has thus been met by a preponderance of the evidence.
2.

Amount in Controversy

For the same reasons as for the numerosity requirement, the
plaintiffs argue that Mayfield’s affidavit is too vague and that
the defendants are construing the proposed class too broadly.
“[A]

defendant’s

notice

of

removal

need

include

only

a

plausible allegation that the amount in controversy exceeds the
jurisdictional threshold.”
the

plaintiff

contests

Dart Cherokee, 135 S. Ct. at 555.

the

defendant’s

plausible

If

allegation,

however, removal will be proper “by the defendant ‘if the district
court finds, by the preponderance of the evidence, that the amount
in controversy exceeds’ the jurisdictional amount.”

Id. at 553-54

(quoting 28 U.S.C. § 1446(c)(2)(B)(2011)).
The claims of individual class members may be aggregated to
meet CAFA’s $5,000,000.00 amount in controversy requirement.
U.S.C. § 1332(d)(6).

28

The well-settled test in the United States

Court of Appeals for the Fourth Circuit for calculating the amount
in controversy is “‘the pecuniary result to either party which [a]

14

judgment would produce.’” Dixon v. Edwards, 290 F.3d 699, 710 (4th
Cir. 2002) (quoting Gov’t Employees Ins. Co. v. Lally, F.2d 568,
569 (4th Cir. 1964)).
In the Mayfield affidavit, Mayfield states that CHK Utica’s
interest in the leases at issue, based on pledged collateral, is
5342.64 acres. Mayfield avers that because of the relief sought by
the plaintiffs, that the oil and gas leases of the plaintiffs be
voided, the cost to CHK Utica to reacquire equivalent lease rights
would exceed $5,000,000.00. Specifically, Mayfield states that the
cost would be in excess of $935.87 per acre given current bonus
payments and market conditions.
Unlike other cases where an average award may be difficult to
calculate, in this case, it is reasonable to use an average
recovery amount.

Cf Thomack v. W. Virginia Univ. Hospitals, Inc.,

No. 1:13CV31, 2013 WL 5504444, at *4 (N.D. W. Va. Oct. 3, 2013)
(distinguishing other cases where an average damages amount was
used and finding that an average award amount could not be used
given the fact that each plaintiff could have a much lower damages
amount than the named plaintiff). The plaintiffs have requested as
relief that the leases be voided and the defendants have provided
an average amount per acre that would have to be paid to reacquire
the same or similar leases.
The issue in this case is whether or not the defendants’
5342.64 acres figure should be used by this Court to calculate the

15

possible damages in this case and the amount in controversy.

The

plaintiffs’ concern as to the Juszczaks is not applicable as to the
amount in controversy calculation as the plaintiffs were only
pointing to the fact that the Juszczaks should not have been
counted

multiple

times

as

lessors

plaintiffs may be in the class.

in

determining

how

many

Thus, all of the Juszczaks’

acreage would be accounted for in the calculation of the amount in
controversy.
As to the Congo Corporation, this Court cannot find that its
acreage should be discounted.

Although the plaintiffs argue that

because the Congo Corporation has what appears to be a more
negotiated lease compared to the other lessors, this does not
foreclose the chance that the Congo Corporation may fit into the
proposed class as it may have dealt with the defendants in a
situation that is similar to what allegedly happened to the
plaintiffs.

Simply having a different lease is not enough, at

remand stage, to support a finding that the Congo Corporation does
not fit into the proposed class.
Finally, as to the plaintiffs from the 4 Suns, even if the 340
acres

is

not

included

in

the

calculation

of

the

amount

in

controversy, the amount in controversy would still be met by a
preponderance of the evidence.

The defendants have asserted that

bonuses are being provided in the current market and that the
$935.87 figure is exceeded, per acre, for equivalent oil and gas

16

leases as those involved in this action.

Thus, even without the 4

Suns acreage, the preponderance of the evidence establishes that
the

amount

in

controversy

exceeds

$5,000,000.00

pursuant to CAFA was therefore proper.

and

removal

See Dart Cherokee, 135 S.

Ct. at 554 (“[N]o antiremoval presumption attends cases invoking
CAFA, which Congress enacted to facilitate adjudication of certain
class actions in federal court.”) (citing S. Rep. No. 109–14, at 43
(2005) (CAFA’s “provisions should be read broadly, with a strong
preference that interstate class actions should be heard in a
federal court if properly removed by any defendant”); Chavis v.
Fidelity Warranty Services, Inc., 415 F. Supp. 2d 620, n.6 (D.S.C.
2006)

(citing

the

Senate

Judiciary’s

recommendation

“that

‘a

federal court should err in favor of exercising jurisdiction over
a case if it is uncertain about whether the sum or value of an
aggregated class action claim reaches $5,000,000.00”) (quoting S.
Rep. No. 109-14 at 42 (2005), 2005 U.S.C.C.A.N. 3, 40).
Because this Court finds that the CAFA requirements for
removal are met, it need not consider, for purposes of this motion
to

remand,

joinder.3

the

defendants’

contentions

regarding

fraudulent

Moreover, the plaintiffs’ request for attorneys’ fees

3

This Court also notes that it did not consider any of the
exceptions to CAFA jurisdiction as none were raised by the
plaintiffs and the plaintiffs bear the burden of raising such
claims. “[T]he objecting party bears the burden of proof as to the
applicability of any express statutory exception,” which includes
an exception to CAFA jurisdiction. Allen v. Boeing Co., 784 F.3d
625, 628 (9th Cir. 2015); see also Breur v. Jim’s Concrete of
17

and costs is denied as this Court has found a basis for removal and
remand is not required.
V.

Conclusion

For the reasons stated above, the plaintiffs’ motion to remand
is

DENIED.

The

defendants’

motion

to

strike,

or

in

the

alternative, motion for leave to file a surreply is DENIED IN PART
and GRANTED IN PART.

The Clerk of Court is therefore DIRECTED to

file the defendants’ surreply.

ECF No. 32-3.

Additionally, this Court had previously stayed the briefing of
two pending motions, CHK Utica and Chesapeake’s motion to compel
bilateral arbitration and the other defendants’ motion to stay
pending arbitration, until after this Court had disposed of the
plaintiffs’ motion to remand. Thus, those motions are now ready to
be briefed.
Accordingly, the plaintiffs are DIRECTED to file a response to
those motions, if necessary, on or before June 11, 2015.

The

defendants are DIRECTED to file a reply, if necessary, on or before
June 18, 2015.

Brevard, Inc., 538 U.S. 691, 698 (2003); Woods v. Standard Ins.
Co., 771 F.3d 1257, 1262 (10th Cir. 2014); Williams v. Homeland
Ins. Co. of N.Y., 657 F.3d 287, 290 (5th Cir. 2011); Westerfeld v.
Indep. Processing, LLC, 621 F.3d 819, 823 (8th Cir. 2010); Kaufman
v. Allstate New Jersey Ins. Co., 561 F.3d 144, 154 (3d Cir. 2009);
Greenwich Fin. Servs. Distressed Mortgage Fund 3 LLC v. Countrywide
Fin. Corp., 603 F.3d 23, 26 (2d Cir. 2010); In re Hannaford Bros.
Co. Customer Data Sec. Breach Litig., 564 F.3d 75, 78 (1st Cir.
2009); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1165 (11th Cir.
2006); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 680
(7th Cir. 2006).
18

IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

May 29, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

19