United States District Court, S.D. Ohio, Eastern Division
D. MORRISON JUDGE.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to
Remand and for Attorney's Fees. (Doc. 25). The
Undersigned RECOMMENDS DENYING the Motion.
lawsuit involves rights under oil and gas leases between
Plaintiffs TERA II, LLC, TERA III Honza, LLC, TERA IV, LLC,
TERA Watson, LLC, and Thomas Shaw and Defendants Rice
Drilling D, LLC (“Rice”), Gulfport Energy
Corporation (“Gulfport”), Ascent Resources-Utica,
LLC (“Ascent”), Phillips Exploration LLC,
(“Phillips”), and XTO Energy, Inc.
(“XTO”). The Leases address the rights to develop
two oil and gas formations, commonly referred to the
Marcellus Shale and Utica Shale.
dispute arose regarding the scope of Defendants' drilling
rights, and Plaintiffs filed suit in the Belmont County,
Ohio, Court of Common Pleas on April 24, 2019. In brief,
Plaintiffs seek a judgment declaring the parties' rights
under the Leases and seek damages from Defendants for
trespass, conversion, and unjust enrichment. Defendant Rice
Drilling timely removed the case to federal court, and the
other defendants consented to the removal. (Docs. 6, 10.)
responded with a motion to remand, arguing that Defendant
Rice “waived its right of removal when it agreed [to] a
valid forum selection clause in the [Leases].” (Doc. 25
at 1). The forum selection clause provides:
Governing Law and Ohio Courts : This Lease
shall be governed in accordance with the laws of the State of
Ohio. Any actions or proceedings arising in connection with
this Lease or performance thereunder shall be ascertained and
determined by the Ohio state court in the county where the
Lease is recorded.
(Id.). Relying on this language, Plaintiffs argue
that Defendants waived their rights to remove, that
“the Court of Common Pleas, Belmont County, Ohio . . .
is the state court where the subject lease is recorded,
” and only that court may adjudicate Plaintiff's
claims. (See generally Doc. 25). Plaintiffs further
assert that are entitled to fees incurred as a result of the
improper removal because Defendant Rice “knowingly
refuse[d]” to follow the forum selection clause.
(Id. at 12).
counter that the forum selection clause is not a “clear
and unequivocal” waiver of Defendants' removal
rights. So, under Sixth Circuit precedent, their right to
remove is still intact. (See generally Docs. 38-41).
In addition, Defendants XTO, Philips, and Ascent argue that
as nonparties to the Leases, they did not waive their removal
rights. (Docs. 39-41).
28 U.S.C. § 1441(a), a defendant may remove a state
court action when a federal court would have original
jurisdiction over the action. Here, Defendants sought removal
on the basis of diversity jurisdiction. (Doc. 1 at 1).
“The right of removal of a suit from state court to
federal court is a statutory right, ” and if the
statutory requirements are met, a defendant is entitled to
removal. Regis Assocs. v. Rank Hotels (Mgmt.) Ltd.,
894 F.2d 193, 195 (6th Cir. 1990) (citing 28 U.S.C. §
1441)). The statutory right to remove many be waived, but any
such waiver must be “clear and unequivocal.”
Cadle Co. v. Reiner, Reiner & Bendett, P.C., 307
Fed.Appx. 884, 888 (6th Cir. 2009). In determining what
constitutes a “clear and unequivocal” intent to
waive a right to remove, the Sixth Circuit has held that
“[a] clause that does not even mention either removal
or the party seeking to remove cannot be a clear waiver of
removal.” Id. (quoting EBI-Detroit, Inc.
v. City of Detroit, 279 Fed.Appx. 340, 347 (6th Cir.
2008)). Notably, the Sixth Circuit has set the bar higher
than other Circuits have. See, e.g., LaSalle
Grp., Inc. v. Tiger Masonry, Inc., No.
10-11328, 2010 U.S. Dist. LEXIS 110071, at *10 (E.D. Mich.
Oct. 15, 2010) (comparing standards in the Third and Sixth
question before the Court is whether the Leases' forum
selection clause is a “clear and unequivocal”
waiver of Defendants' removal rights. Plaintiffs argue
that by agreeing that “[a]ny actions or
proceedings” concerning the Leases “shall be
ascertained and determined by the Ohio state court in the
county where the Lease is recorded, ” Defendants waived
the right to ...