govinfo:USCOURTS-wvnd-1_17-cv-00088-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKLIN ROMEO,
Individually and on behalf
of others similarly situated; 
SUSAN S. RINE,
Individually and on behalf
of others similarly situated; 
DEBRA SNYDER MILLER,
Individually and on behalf
of others similarly situated, 
Plaintiffs,
v. // CIVIL ACTION NO. 1:17CV88
(Judge Keeley)
ANTERO RESOURCES CORP.,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION
TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 34]
This case involves a breach of contract claim related to
royalty payments for natural gas interests. The plaintiffs, Jacklin
Romeo (“Romeo”), Susan S. Rine (“Rine”), and Debra Snyder Miller
(“Miller”)(collectively, “the plaintiffs”), each allege ownership
of an oil and gas interest in Harrison County, West Virginia,
subject to existing oil and gas leases, under which the lessee's
interest has been assigned to the defendant, Antero Resources
Corporation (“Antero”). The plaintiffs allege that Antero has
breached its contractual obligations under the royalty provisions
of the lease agreements by improperly deducting post-production
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TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 34]
costs and failing to pay royalties based upon the price received at
the point of sale (Dkt. No. 31). 
Pending before the Court is Antero’s motion to dismiss the
plaintiffs’ second amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) (Dkt. No. 34). For the reasons that
follow, the Court DENIES the motion.
I. BACKGROUND
The Court takes the facts from the second amended complaint
and construes them in the light most favorable to the plaintiffs.
See
 De'Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). Romeo
is the assignee of a portion of the lessors’ interest under a March
14, 1984 lease agr eement between lessors Jessie J. Nixon, Betty
Nixon, Mary Alice Vincent, and Hubert L. Vincent, and lessee
Clarence W. Mutschelknaus. Antero has acquired the lessee’s rights
and obligations. Id.
 at 5-6. The royalty provision of the
agreement, which is attached to the second amended complaint,
contains the following language:
In consideration of the premises, the said [Lessee]
covenants and agrees: First, to deliver monthly to the
credit of the Lessors, their heirs or assigns, free of
costs, in a pipeline, to which Lessee may connect its
wells, Lessors' proportionate share of the equal
one-eighth (1/8) part of all oil produced and saved from
the leased premises; and second, to pay monthly Lessor's
proportionate share of the one-eighth (1/8) of the value
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION
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at the well  of the gas from each and every gas well
drilled on said premises, the product from which is
marketed and used off the premises, said gas to be
measured at a meter set on the farm, and to pay monthly
Lessors’ proportionate share of the one-eighth (1/8) of
the net value at the factory of the gasoline and other
gasoline products manufactured from casinghead gas.
Id.
 at 6 (emphasis added).
Rine and Miller are assignees of portions of the lessors’
interest under an October 19, 1979 lease between lessors Lee H.
Snyder and Olive W. Snyder and lessee Robert L. Matthey, Jr. Antero
was assigned the lessee’s interest sometime prior to January 1,
2009. Id.
 at 6-7. The royalty provision of the original agreement,
which is attached to the second amended complaint, contains the
following language:
(a) Lessee covenants and agrees to deliver to the credit
of the Lessor, his heirs or assigns, free of cost, in the
pipe line to which said Lessee may connect its wells, a
royalty of one-eighth (1/8) of native oil produced and
saved from the leased premises.
(b) Lessee covenants and agrees to pay Lessor as royalty
for the native gas from each and every well drilled on
said premises producing native gas, an amount equal to
one-eighth (1/8) of the gross proceeds received from the
sale of the same at the prevailing price for gas sold at
the well, for all native gas saved and marketed from the
said premises, payable quarterly.
Id.
 at 8-9 (emphasis added).
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION
TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 34]
According to the plaintiffs, gas produced under the agreements
consists of “wet gas” saturated with liquid hydrocarbons and water
that must be treated and processed to obtain marketable “residue
gas.” Likewise, the gas contains valuable liquid hy drocarbon
components that must be extracted and fractionated prior to sale.
Id.
 at 9-10.
Because none of the royalty provisions at issue expressly
permit the deduction of post-production costs, the plaintiffs
contend that West Virginia law imposes a duty on Antero to
calculate royalties based on the price it receives from third
parties for the residue gas and natural gas liquids (“NGLs”)
without deductions. The plaintiffs further allege that, despite
this duty, Antero has failed to pay a full 1/8th royalty on the
sale price for residue gas and NGLs, and instead have been
deducting various post-production costs. Id.
 at 11-13.
During the initial scheduling conference in the case, for good
cause, the Court granted the plaintiffs leave to file a second
amended complaint (Dkt. No. 26). Thereafter, the plaintiffs filed
their second amended complaint (Dkt. No. 31), which reflects a
number of changes, namely regarding the chain of title for the
leases at issue, the plaintiffs’ performance under the leases, and
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION
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the deductions Antero has allegedly made in the calculation of the
plaintiffs’ royalties.
Now pending is Antero’s motion to dismiss the second amended
complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 34) on the
basis that the plaintiffs have not adequately pleaded a claim for
breach of contract, that the plain language of the oil and gas
leases at issue precludes the plaintiffs’ allegations, and that the
plaintiffs’ reliance on Wellman v. Energy Resources, Inc.
, 557
S.E.2d 254 (W. Va. 2001), and Tawney v. Columbia Natural Resources,
LLC, 633 S.E.2d 22 (W. Va. 2006), is misplaced (Dkt. Nos. 18; 34).
The motion is fully briefed and ripe for review.
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
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
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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).
In deciding on 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
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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. Pleading Standard
In its motion to dismiss, Antero argues that the plaintiffs
have not “cured the pleading deficiencies identified by the Court”
during the scheduling conference (Dkt. No. 34 at 1). As the parties
acknowledge in their briefing, this Court has consistently stated:
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
obligations under the contract; and (4) that the
plaintiff has been injured as a result.
Corder v. Antero Res. Corp.
, No. 1:18CV30, 2018 WL 2925128, at *5
(N.D.W.Va. June 11, 2018)(citing KBS Preowned Vehicles, LLC v.
Reviva, Inc., No. 1:13cv138, 2014 WL 12591890, at *2 (N.D.W.Va.
Mar. 26, 2014)); 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)). 
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION
TO DISMISS SECOND AMENDED COMPLAINT [DKT. NO. 34]
First, Antero argues that the plaintiffs have not adequately
pled “the chains of title showing how Antero became the assignee or
how [the plaintiffs] became the lessors under the lease agreements”
(Dkt. No. 34 at 1). Antero correctly notes that this Court’s
precedent requires the plaintiffs to allege the parties’ connection
to the oil and gas leases at issue. See, e.g.
, Cather v.
Seneca–Upshur Petroleum, Inc., No. 1:09CV139, 2010 WL 3271965, at
*3-4 (N.D.W.Va. Aug. 18, 2010)(allowing the plaintiff to file an
amended complaint detailing the corporate merger that resulted in
defendant Forest Oil's interest where the plaintiff alleged only
that Forest Oil was “a lessee or ultimate assignee of the leases”
at issue). 
Upon review, the Court finds that the second amended complaint
alleges facts sufficient to establish the plaintiffs’--and
Antero’s--connection to each lease through the record chains of
title (Dkt. No. 31 at 5-8). Cf.
 Rodgers v. Sw. Energy Co., No.
5:16-CV-54, 2016 WL 3248437, at *2 (N.D.W.Va. June 13,
2016)(Bailey, J.)(allowing plaintiffs to amend breach of contract
claim where 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”)(emphasis added). Accordingly, the second
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amended complaint alleges the existence of enforceable contracts
between the plaintiffs and Antero with sufficient specificity to
survive the motion to dismiss.
Second, Antero argues that the plaintiffs have failed to
adequately allege that “they have contractual obligations or that
they performed their obligations under their leases” (Dkt. No. 34
at 3). As this Court has previously observed, however, “[t]his is
a light burden; Twombly
 does not require the plaintiffs to plead
factual support for a prima facie  case, so long as their
allegations make it factually plausible that the defendants are
liable for the misconduct alleged.” Corder
, 2018 WL 2925128, at *6
(citing Connelly v. Lane Const. Corp. , 809 F.3d 780, 788–89 (3d
Cir. 2016)). Following the scheduling conference, the plaintiffs
took the opportunity to address their performance in their second
amended complaint, which sufficiently all eges that they have
fulfilled their obligations under the leases (Dkt. No. 31 at 13). 
Third, and finally, Antero argues that the plaintiffs have not
adequately pled “what deductions were allegedly taken in violation
of the leases” (Dkt. No. 34 at 3).
 Contrary to Antero’s assertion,
however, the plaintiffs allege that, in calculating royalty
payments owed to them under the lease agreements, Antero has
breached its contractual obligations by failing to pay them
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royalties based upon prices received for marketable natural gas
products at the point of sale. Specifically, the plaintiffs allege
that Antero has taken numerous post-production deductions from the
sale price, including deductions for “treating, compression, fuel,
gathering, transportation . . ., processing, [and] fractionation”
(Dkt. No. 31 at 11). Accordingly, the second amended complaint
adequately alleges that Antero has breached its obligations under
the lease agreements, and that the plaintiffs have been injured as
a result.  
Therefore, because the plaintiffs have corrected the pleading
deficiencies identified during the scheduling conference, it
concludes that they have adequately pleaded a claim for breach of
contract.
B. Matter of Law
Antero also renews its argument that the plaintiffs have
failed to state a claim for breach of contract as a matter of law
because the leases at issue allow Antero to deduct post-production
costs (Dkt. Nos. 34 at 4; 18 at 7-25).
As an initial matter, neither of the leases at issue is a
flat-rate lease subject to W. Va. Code § 22–6–8. Therefore, as the
Supreme Court of Appeals of West Virginia (“Supreme Court of
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Appeals”) has noted, the leases are “unaffected” by Leggett v. EQT
Prod. Co., 800 S.E.2d 850, 853, cert. denied, –– U.S. –– (W. Va.
2017). Instead, the leases remain governed by the Supreme Court of
Appeals’s analysis in Wellman v. Energy Res., Inc.
, 557 S.E.2d 254
(W. Va. 2001); and Estate of Tawney v. Columbia Nat. Res., L.L.C.,
633 S.E.2d 22 (W. Va. 2006). See also Corder, 2018 WL 2925128, at
*6 (applying Wellman and Tawney to leases unaffected by Leggett).
In Wellman, the oil and gas lease at issue contained the
following royalty provision:
Lessee agrees to deliver to Lessor, in tanks, tank cars,
or pipe line, a royalty of one-eighth (1/8) of all oil
produced and saved from the premises, and to pay to
Lessor for gas produced from any oil well and used by
Lessee for the manufacture of gasoline or any another
product as royalty one-eighth (1/8) of the market value
of such gas at the mouth of the well; is [if] such gas is
sold by the Lessee, then as royalty one-eighth (1/8) of
the proceeds from the sale of gas as such at the mouth of
the well where gas, condensate, distillate or other
gaseous substance is found.
557 S.E.2d at 257-58. 
The question presented was whether the operator could deduct
certain post-production costs under the clause providing for “1/8th
of the proceeds from the sale of gas as such at the mouth of the
well.” Id.
 at 263. Noting that a landowner's royalties are
typically “not chargeable with any of the costs of discovery and
production,” the Supreme Court of Appeals looked with disfavor on
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recent attempts “to charge the landowner with a pro rata share of
various expenses connected with the operation of an oil and gas
lease such as expense of transporting oil and gas to a point of
sale, and the expense of treating or altering the oil and gas so as
to put it in a marketable condition.” Id.
 at 264.
The court reasoned instead that the implied duty to market oil
and gas “embraces the responsibility to get the oil and gas in
marketable condition and actually transport it to market.” Id.
 It
held “that if an oil and gas lease provides for a royalty based on
proceeds received by the lessee, unless the lease provides
otherwise, the lessee must bear all costs incurred in exploring
for, producing, marketing, and transporting the product to the
point of sale.” Id.
 at 265. Importantly, the court further
reasoned:
Although this Court believes that the language of the
leases in the present case indicating that the “proceeds”
shall be from the "sale of gas as such at the mouth of
the well where gas . . . is found" might be language
indicating that the parties intended that the Wellmans,
as lessors, would bear part of the costs of transporting
the gas from the wellhead to the point of sale, whether
that was actually the intent and the effect of the
language of the lease is moot because Energy Resources,
Inc., introduced no evidence whatsoever to show that the
costs were actually incurred or that they were
reasonable.
Id.
 at 266.
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Later, in Tawney, the Supreme Court of Appeals was asked to
decide if a lease “provides otherwise” under Wellman by indicating
“that the lessor's 1/8 royalty is to be calculated ‘at the well,’
‘at the wellhead’ or similar language, or that the royalty is ‘an
amount equal to 1/8 of the price, net of all costs beyond the
wellhead,’ or ‘less all taxes, assessment, and adjustments.’” 633
S.E.2d at 24. The operator argued that the only logical way to
calculate the value of the gas “at the wellhead” was to subtract
post-production costs from the sale price, while the plaintiffs
argued that the language was silent or ambiguous and should be
construed against the lessee, thereby leaving Wellman
 applicable to
the language. Id. at 26.
At bottom, the dispute in Tawney involved “whether the ‘at the
wellhead’-type language at issue is sufficient to alter our
generally recognized rule that the lessee must bear all costs of
marketing and transporting the product to the point of sale.” Id.
at 28. Finding such general language to be ambiguous because it did
“not indicate how or by what method the royalty is to be calculated
or the gas is to be valued,” the court further reasoned that “the
general language at issue simply is inadequate” to express the
parties’ intent to overcome the “traditional rule that lessors are
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to receive a royalty of the sale price of gas.” Id.  (emphasis in
original).
Despite Wellman's dicta regarding value at “the mouth of the
well,” the court found that “wellhead”-type language in a lease is
ambiguous because it lacks any definite description of how the
parties may have intended to act contrary to the marketable product
rule discussed in Wellman
. The Supreme Court of Appeals therefore
construed the language against the lessee, holding that:
Language in an oil and gas lease that is intended to
allocate between the lessor and lessee the costs of
marketing the product and transporting it to the point of
sale must expressly provide that the lessor shall bear
some part of the costs incurred between the wellhead and
the point of sale, identify with particularity the
specific deductions the lessee intends to take from the
lessor's royalty (usually 1/8), and indicate the method
of calculating the amount to be deducted from the royalty
for such post-production costs.
Id.
, Syl. Pt. 10. The language at issue in the case - “at the
well,” “at the wellhead,” or similar language - was insufficient to
meet this requirement because of its ambiguity. Id.
, Syl. Pt. 11. 
Here, the royalty provisions in the lease agreements at issue
appear to require royalty payments based on the market price due to
either of the following clauses: (1) “value at the well,” or (2)
“gross proceeds received from the sale of the same at the
prevailing price” (Dkt. No. 31 at 6, 9). Accordingly, this Court
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concludes, as it did in Corder, that Antero has failed to identify
any provision rendering the lease agreements at issue “unambiguous
enough to escape” Wellman
 and Tawney. Corder, 2018 WL 2925128, at
*6. As Judge Bailey pointedly stated in Kay Co., LLC v. EQT Prod.
Co.: “[A]ny criticism of Tawney  and Wellman  contained within
Leggett is mere dicta and does not alter the current controlling
nature of those precedents.” No. 1:13-CV-151, 2017 WL 6403031, at
*1 (N.D.W.Va. July 11, 2017). Accordingly, an operator’s “dislike
of Tawney
 and Wellman and its hope that a majority of the [Supreme
Court of Appeals] might disavow them in the future does not change
the current controlling nature of those precedents on issues
pending before this Court.” Id.
 at *2 (denying operator’s motion to
certify to the Supreme Court of Appeals the question of the
continued validity of Tawney
 in light of that court’s decision in
Leggett). 
IV. CONCLUSION
Therefore, for the reasons discussed, the Court DENIES
Antero's motion to dismiss the plaintiffs’ breach of contract claim
(Dkt. No. 34) and LIFTS the stay of discovery previously entered in
the case (Dkt. No. 27). It DIRECTS the parties to submit an amended
Rule 26(f) meeting report within thirty (30) days from the entry of
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this Order, following which it will set a further scheduling
conference as needed.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: September 5, 2018. 
/s/ Irene M. Keeley         
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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