United States District Court, N.D. West Virginia
KATHERINE F. LEGGETT, et al., Plaintiffs,
EQT PRODUCTION COMPANY, et al., Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION TO TRANSFER CASE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
January 10, 2013, the defendants removed this action from the
Circuit Court of Doddridge County, West Virginia. In their
amended complaint (ECF No. 52), the plaintiffs asserted that
the defendants failed to pay the plaintiffs the full amount
of royalties due to them under the terms of an oil and gas
lease. Pursuant to their lease, the plaintiffs allege that
the defendants have (1) improperly calculated the owed
royalties, (2) taken unauthorized deductions for the
plaintiffs' royalties, (3) reduced the volume and price
of their oil and gas operations as they affect the royalties,
and (4) misrepresented the accounting of the royalties. As a
result of those actions, the plaintiffs asserted four claims
in their complaint. Those claims were for breach of contract
(Count I), breach of fiduciary duties (Count II), fraud
(Count III), and punitive damages (Count IV), respectively.
The plaintiffs also sought relief under the West Virginia
Consumer Credit Protection Act (“WVCCPA”).
parties proceeded to engage in discovery and motions practice
pursuant to this Court's scheduling order (ECF No. 18).
On February 10, 2016, pursuant to the Uniform Certification
of Questions of Law Act, West Virginia Code § 51-1A-1,
et seq., this Court requested that the Supreme Court
of Appeals of West Virginia answer two questions of law that
may determine the outcome of the above-styled civil action.
On November 21, 2016, the Supreme Court of Appeals of West
Virginia answered the first certified question, after it was
reformulated, and declined to answer the second certified
question. On December 19, 2016, defendant EQT Production
Company filed its “Respondent's Petition for
Rehearing” in the Supreme Court of Appeals of West
Virginia, seeking further consideration and relief relating
to the certified questions. The Supreme Court of Appeals of
West Virginia granted the petition for rehearing. On May 26,
2017, the Supreme Court of Appeals of West Virginia issued
its opinion upon rehearing. The opinion upon rehearing
answered the first reformulated certified question in the
affirmative, whereas the previous majority had answered it in
the negative. On June 30, 2017, this Court established
deadlines for limited discovery on the remaining issues.
Following discovery, from September 2018 through January 4,
2019, the parties filed the following motions and pleadings
which remain pending: (1) motion for partial summary judgment
by EQT Production Company (ECF No. 271); (2) motion for
summary judgment regarding deductions and royalty by
plaintiffs (ECF No. 273); (3) motion for reconsideration
regarding order on motion for summary judgment by plaintiffs
(ECF No. 279); (4) motion to strike response in opposition to
motion by EQT Production Company (ECF No. 289); (5) motion to
transfer case by plaintiffs (ECF No. 293); (6) motion for
leave to file a sur-reply in support of application of Senate
Bill 360 Amendment to this civil action by plaintiffs (ECF
No. 296); (7) memorandum in opposition to award of expenses
and sanctions by EQT Production Company (ECF No. 265); and
(8) objections to order on motion for protective order by EQT
Production Company (ECF No. 266).
noted, one of these pending motions is a motion to transfer
the above styled civil action to the federal class action
also pending in the Northern District of West Virginia styled
The Kay Company, LLC, et al. v. EQT Production Company,
et al., Civil Action No. 1:13CV151. ECF No. 293. In that
motion filed by plaintiffs, plaintiffs represent that there
are subclassess of lessors in the class action, which
includes: (1) “[a]ll EQT natural gas lessors with flat
rate leases . . . and that received or were due to be paid
royalties from defendants and EQT's production or sale of
natural gas which was produced within the boundaries of the
State of West Virginia from their estates during the period
beginning December 8, 2008, and extending to the
present[;]” (2) “[a]ll EQT gas lessors that
received or were due to be paid royalties from defendants and
EQT's production or sale of natural gas which was
produced within the boundaries of the State of West Virginia
from their estates during the period beginning December 8,
2008, and extending to the present [, ] . . . except for
those lessors holding flat rate leases converted according to
W.Va. Code, § 22-6-8.” Id. at 1-2.
Moreover, plaintiffs argue that: (1) “[p]laintiffs'
and defendants' counsel are the same in each
case[;]” (2) “discovery has been consolidated in
both cases since the cases were filed[;]” (3)
“trial costs will  be costly[;]” (4)
“[t]he same experts which plaintiffs have used and will
use in The Kay Company case will address the issues
in the Leggett case and generally the same fact
witnesses, other than plaintiffs, will be called, given the
issues are the same with respect to this subclass[;]”
(5) “[p]laintiffs are presumptive members of the class
action inasmuch as they have not opted out of the class
action and because the pendency and continuance of this . . .
separate legal action that was instituted before the class
action does not operate to exclude plaintiffs from the
class[;]” and (6) district courts have discretion to
transfer in the interest of justice or the convenience of
parties under 28 U.S.C. § 1404(a). Id. at 2-5.
Thus, plaintiffs contend that the action may be transferred.
Id. Plaintiffs also note that the plaintiffs have
filed the same motion to transfer in The Kay
defendant EQT Production Company filed a response in
opposition to the motion to transfer. ECF No. 300. In that
response, defendant argues that transfer of this case is not
permitted by 28 U.S.C. § 1404, because the
“interest of justice” factor would not be met
here. Id. at 3. Further, that defendant contends
that the plaintiffs are engaging in “forum
shopping.” Id. at 4. Moreover, that defendant
argues that transferring the case would not facilitate the
convenience of the parties or the Court in this case or in
The Kay Company case. Id. at 5. Lastly,
that defendant argues that plaintiffs are precluded from
re-litigating in The Kay Company their claims
against the non-lessee defendants, and claims for fraud and
punitive damages that have already been ruled upon in this
case due to the “law of the case doctrine.”
Id. at 6-8.
plaintiffs filed a reply to the defendant's response in
opposition. ECF No. 301. In reply, the plaintiffs argue that
transfer is proper, setting forth many of the same arguments
raised in their initial motion. Specifically, plaintiffs
address defendant EQT Production Company's “forum
shopping” argument, stating that “[p]laintiffs
would and will be bound by the judgment in Kay
Company regardless of this Court's previous rulings.
Even if there was or is an adverse ruling or judgment in
Kay Company, [p]laintiffs would be and will be bound
by that ruling.” Id. at 3. Moreover, the
plaintiffs also state that the “law of the case
doctrine” is not applicable here since that only
applies to matters decided during the course of a single
continuing lawsuit, and not separate actions. Id. at
4. Lastly, plaintiffs argue that res judicata does not apply
since the first element that there be a final adjudication on
the merits in a prior action has not been met. Id.
28, United States Code, Section 1404(a) provides, in
For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to
any other district or division where it might have been
brought or to any district or division to which all parties
28 U.S.C. § 1404(a). The United States Court of Appeals
for the Fourth Circuit has held that a motion to transfer an
action under § 1404 is within the sound discretion of
the district court. Akers v. Norfolk & W.
Ry. Co., 378 F.2d 78, 81 (4th Cir. 1967). When resolving
a motion to transfer, district courts often consider the
(1) ease of access to sources of proof; (2) the convenience
of parties and witnesses; (3) the cost of obtaining the
attendance of witnesses; (4) the availability of compulsory
process; (5) the possibility of a view; (6) the interest in
having local controversies decided at home; and (7) the
interests of justice.
Vass v. Volvo Trucks N. Am., Inc., 304 F.Supp.2d
851, 857 (S.D. W.Va. 2004) (quoting AFA Enterprises, Inc.
v. Am. States Ins. Co., 842 F.Supp. 902, ...