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govinfo:USCOURTS-wvnd-1_24-cv-00099-1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
PERRY B. GAINS,
Plaintiff,
v. CIVIL ACTION NO. 1:24-CV-99
(KLEEH)
ANTERO RESOURCES CORPORATION et al.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT ANTERO’S MOTION
TO COMPEL ARBITRATION [ECF NO. 43]
Pending before the Court is Antero Resources Corporation’s
Motion to Compel Arbitration and Stay this Action [ECF No. 43].
For the reasons stated herein, the Motion [ECF No. 43] is GRANTED.
I. PROCEDURAL BACKGROUND
Plaintiff Perry B. Gains (“Plaintiff” or “Gains”) filed a
Complaint in the Circuit Court of Doddridge County, West Virginia
on September 12, 2024. ECF No. 1. Defendants Antero Resources
Corporation (“Antero”), Elaine S. Hunter, Lawrence L. Marshall,
Thomas F. Menzel, Margaret D. Marshall Estate, Marjorie Smith, and
Mary Ann Taylor (collectively “Defendants”) removed the case to
this Court on October 17, 2024. Id.
Plaintiff alleges five causes of action: Count I: Conversion
– Defendant Antero; Count II: Quiet Title/Declaratory Judgment –
Defendant Antero and all Necessary/Indispensable Parties; Count
III: Unjust Enrichment – Defendant Antero; Count IV: Trespass –
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Defendant Antero; and Count V: Waste – Defendant Antero. ECF No.
1-1.
Antero filed the subject Motion to Compel Arbitration and Stay
Litigation on June 18, 2025. ECF No. 43. On the same day, Antero
filed a Motion for Leave to Amend Its Answer and Assert a
Counterclaim. ECF No. 44. Antero’s basis for filing a Motion to
Amend was that it obtained a “Working Agreement” which contained
an arbitration clause that allegedly bound the parties. ECF No.
44. On July 9, 2025, Gains filed Responses in Opposition to the
Motion for Leave and to Compel Arbitration. ECF No. 48, 49. On
July 16, 2025, Antero filed a Reply to Gains’ Response to the
Motion for Leave and to Compel Arbitration. ECF No. 53, 54. The
motion to compel arbitration is fully briefed and ripe for review.
II. FACTUAL BACKROUND
The following facts are from Plaintiff’s State Court
Complaint. This case arises out of alleged improper and wrongful
conduct related to the extraction and sale of oil and hydrocarbons
from an Estate. Specifically, the “common practice in Doddridge
County in the early 1900s of . . . splitting the oil and gas
estates into separate entities . . . for the purpose of development
and operation.” Compl., ECF No. 1-1, at ¶ 17.
Plaintiff Gains owns all rights to the Marcellus Shale oil
leasehold in Doddridge County, West Virginia, which covers
approximately 85 acres. Id. at ¶ 9. Gains alleges that he recently
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discovered Defendant Antero “is currently pooling, developing and
exploiting the Estate . . . and that the Defendant has been
unlawfully selling oil and related hydrocarbons from the Estate.”
Id. at ¶ 10. Defendant Antero is a producer of natural gas and
oil and operates wells in West Virginia. Id. at ¶ 3. All other
Defendants are the owners of the oil fee estate at issue and have
been receiving oil royalties from Mr. Gains for years. Id. at ¶ 3.
Gains is the successor in interest/current owner of the
entirety of the oil Estate, but the oil and gas estates were split
into two separate estates in the early 1900s. Id. at ¶ 13-14, ex.
4. Gains alleges that because Antero “had, and has, actual and
constructive knowledge” of this common practice, Antero had a duty
to investigate Mr. Gains’ ownership of the Estate. Id. at ¶ 18.
Furthermore, because Gains ownership of the Estate is publicly
available, Antero must have had an actual and constructive notice
of such ownership. Id. at ¶ 19. Therefore, Antero allegedly had
knowledge that its chain of title was defective and “does not
qualify as a bona fide purchaser at value.” Id. at ¶ 20-21.
According to the Complaint, Antero has continued operating and
producing the Estate with “actual, constructive, and record notice
that Mr. Gains owns the Estate.” Id. at ¶ 26.
A. Antero’s Motion to Compel Arbitration [ECF No. 43]
The following facts are taken from Defendant Antero’s Motion
to Compel Arbitration, its Memorandum in Support of the Motion,
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and its Motion for Leave to Amend its Answer and Assert a
Counterclaim.
The Motion to Compel Arbitration was filed after Antero
allegedly discovered, during discovery, a working agreement
entered into by the parties’ predecessors in interest. ECF No. 44,
at 1. Antero asserts that “Antero and Plaintiff are both lessees
under a single Subject Lease—Antero is the lessee of the gas and
gas leasehold, and Plaintiff is the lessee of the oil and oil
leasehold. ECF No. 43-1, at 1.
On October 19, 1908, the J.S. and Jane Netzer leased the oil
and gas rights to their property to Hope Gas for a term of 10
years. Id. at 2. On July 18, 1918, before the expiration of the
lease, the Netzers and Hope Gas signed another lease that was
effective as a renewal on the day the original lease expired. Id.
at 2-3. On December 5, 1918, while the first lease was still in
effect, Hope Gas assigned its oil leasehold and development rights
to Carter Oil. Id. at 3. This created two separate lessees and
leasehold estates under the Subject Lease. Id.
Especially relevant to Antero’s Motion to Compel Arbitration
is that under the Hope-Carter Agreement, Hope Gas and Carter Oil
“entered into the Working Agreement, which governed the parties’
rights and responsibilities with respect to conducting operations
on their respective leasehold estates under the Subject Lease.”
Id. at 1. This Working Agreement contains a mandatory arbitration
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clause. Id. at 5. In addition, the Hope-Carter agreement expressly
states that the Subject Lease is subject to preexisting working
agreements. Id. at 3.
On February 26, 2025, Carter Oil assigned its rights in the
Subject Lease, the oil rights it received from the Hope-Carter
Assignment, to C.H. Pigott. Id. at 4. The Carter-Pigott assignment
provided that “the oil and oil rights in the Subject Lease were
conveyed from Hope Gas to Carter Oil by the Hope-Carter
Assignment[,]” and the agreement stated “that the said lease and
leasehold estates are subject to a working agreement between
[Carter and Hope Gas.]” Id. at 4. In addition, the Working
Agreement states in relevant part that the “agreement is intended
by the companies to be continuing and will, hereafter, by reference
merely, be applied to other leases or gas or gas rights thereunder
which the Oil Company may from time-to-time assign to the Gas
Company.” Id. at 5. Antero claims that this Working Agreement
governs the dispute at issue in this case because Antero and
Plaintiffs are successors in interest to Hope Gas and Carter Oil.
Id.
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III. LEGAL STANDARD
A. Federal Arbitration Act (9 U.S.C. §§ 2, 3)
The Federal Arbitration Act (“FAA”) outlines the “procedures
for enforcing arbitration agreements in federal court.” Smith v.
Spizzirri, 601 U.S. 472, 473 (2024). Section 2 of the FAA states:
A written provision in any maritime
transaction or a contract evidencing a
transaction involving commerce to settle by
arbitration a controversy thereafter arising
out of such contract or transaction, or the
refusal to perform the whole or any part
thereof, or an agreement in writing to submit
to arbitration an existing controversy arising
out of such a contract, transaction, or
refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract or as otherwise provided in chapter
4.
9 U.S.C.A. § 2. The Fourth Circuit holds, “a litigant can compel
arbitration under the FAA if he can demonstrate: ‘(1) the existence
of a dispute between the parties, (2) a written agreement that
includes an arbitration provision which purports to cover the
dispute, (3) the relationship of the transaction, which is
evidenced by the agreement, to interstate or foreign commerce, and
(4) the failure, neglect or refusal of the defendant to arbitrate
the dispute.’” Adkins v. Labor Ready. Inc., 303 F.3d 496, 500-
501 (4th Cir. 2002). Additionally, section 3 of the FAA sets forth
that:
If any suit or proceeding be brought in any of
the courts of the United States upon any issue
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referable to arbitration under an agreement in
writing for such arbitration, the court in
which such suit is pending, upon being
satisfied the issue involved in such suit or
proceeding is referable to arbitration under
such an agreement, shall on application of one
of the parties stay the trial of the action
until such arbitration has been had in
accordance with the terms of the agreement,
providing the applicant for the stay is not in
default in proceeding with such arbitration.
9 U.S.C. § 3.
B. West Virginia State Contract Law
“Although federal law governs the arbitrability of disputes,
ordinary state-law principles resolve issues regarding the
formation of contracts.” Lawhun v. CMH Homes, Inc., No. 1:22-CV-
112, 2023 WL 5280909, at *5 (N.D. W.Va. Aug. 16, 2023) (internal
citation omitted); see In re Cotton Yarn Antitrust Litig., 505
F.3d 274 (4th Cir. 2007)(“State contract law govern the question
of whether the parties have agreed to arbitrate....”).
Therefore, questions regarding incorporation by reference of
writings are governed by State contract law. The Supreme Court of
Appeals of West Virginia holds that a three-pronged test must be
satisfied for incorporation by reference to apply:
In the law of contracts, parties may
incorporate by reference separate writings
together into one agreement. However, a
general reference in one writing to another
document is not sufficient to incorporate that
other document into a final agreement. To
uphold the validity of terms in a document
incorporated by reference, (1) the writing
must make a clear reference to the other
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document so that the parties’ assent to the
reference is unmistakable; (2) the writing
must describe the other document in such terms
that its identity may be ascertained beyond
doubt; and (3) it must be certain that the
parties to the agreement had knowledge of and
assented to the incorporated document so that
the incorporation will not result in surprise
or hardship.
Syl. Pt. 2, State ex rel. U-Haul Co. of W. Virginia v. Zakaib, 232
W. Va. 432 (2013).
IV. DISCUSSION
Defendant Antero sets forth that the arbitration clause
contained in the Working Agreement discussed above governs this
dispute and arbitration is therefore mandatory under the FAA.
Plaintiff contends that the Working Agreement does not bind the
parties before the court and compulsory arbitration, along with a
stay, is not mandatory. In addition, Plaintiff argues that if the
parties are subject to the arbitration clause, Antero has waived
its right to arbitrate. For the reasons discussed below, the Court
GRANTS Antero Resources Corporation’s Motion to Compel Arbitration
and Stay this Action [ECF No. 43]
A. The Court GRANTS Antero’s Motion to Compel Arbitration because
the Fourth Circuit’s Adkins factors for compulsory arbitration
under the Federal Arbitration Act are met.
Section 2 of the FAA sets forth that
[a] written provision in . . . a contract
evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter
arising out of such contract or transaction,
. . . or an agreement in writing to submit to
arbitration an existing controversy arising
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out of such a contract, transaction, or
refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract or as otherwise provided in chapter
4.
9 U.S.C.A. § 2. The “party seeking to enforce the arbitration
agreement, bears the initial burden” of demonstrating to the court
that the parties entered into an enforceable arbitration
agreement. Little v. Cellco P'ship, 304 F. Supp. 3d 508, 510
(S.D.W. Va. 2018). To satisfy this burden, and compel arbitration
under Section 2, a litigant must:
demonstrate: ‘(1) the existence of a dispute
between the parties, (2) a written agreement
that includes an arbitration provision which
purports to cover the dispute, (3) the
relationship of the transaction, which is
evidenced by the agreement, to interstate or
foreign commerce, and (4) the failure, neglect
or refusal of the defendant to arbitrate the
dispute.’
Adkins v. Labor Ready. Inc., 303 F.3d 496, 500-501 (4th Cir. 2002).
As a threshold matter, all four of the factors outlined in
Adkins are met. Therefore, as discussed further in Section B, if
incorporation by reference of the Working Agreement is proper under
West Virginia contract law, the Court is inclined to compel
arbitration. First, there is clearly a dispute between the parties
as evidenced by the filing of the Complaint. See Frashuer v. Altice
USA, Inc., No. 2:21-CV-17, 2023 WL 195523, at *3 (N.D. W. Va. Jan.
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17, 2023) (holding that the plaintiff’s complaint was sufficient
evidence of a dispute between the parties).
Second, there is an arbitration provision contained in the
Working Agreement which, on its face, binds the parties. The
Working Agreement between Hope Gas and Carter Oil applied to the
Subject Lease. Both the Hope-Carter Assignment and the Carter-
Piggott Assignment, which Plaintiff is the successor in interest
to, expressly state that the Subject Lease is subject to the
Working Agreement. Therefore, Antero and Plaintiff are successor
lessees to the Subject Lease and Working Agreement. Thus, the
parties before the Court are subject to the Working Agreement and
bound by the arbitration clause contained therein.1 Lastly, the
third and fourth Adkins factors are satisfied. The dispute between
Antero and Plaintiff involves interstate commerce because
materials produced from the Subject Lease are sold outside of West
Virginia. In addition, factor four is satisfied because Plaintiff
has refused to submit the dispute to arbitration. Accordingly, if
under West Virginia contract law the Working Agreement was properly
1 Plaintiff further suggests in his Response that Antero’s well
permitting activity, specifically that “it permitted the well/horizontal
legs pursuant to the July 16, 1918, Lease Agreement, . . . not pursuant
to prior, unspecified working agreements” means the working agreement
was “terminated on its face by operation.” However, the document Antero
is required to complete during the permitting stages (WW-6A1 Form) does
not request disclosure of any contracts associated with the land. Failing
to disclose the Working Agreement during the permitting stage is not
relevant to the incorporation of the Working Agreement into the 1918
Hope-Carter assignment and subsequent assignments.
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incorporated by reference, the Motion to Compel Arbitration should
be granted.
B. Under West Virginia contract law, the arbitration agreement
applies because the references to the Working Agreement satisfy
the U-Haul incorporation by reference standard.
Where a defendant successfully demonstrates that the parties
entered into an agreement to arbitrate, “the burden shifts to the
plaintiff to show that even though there was some written contract,
[they] did not actually agree to it” for a “reason evincing lack
of true agreement.” Little, at *10. Whether a writing, separate
from a signed contract between the parties, can be validly
incorporated by reference, is a question of State contract law.
See Lawhun, at *5; see also Helly v. TriEnergy, Inc., 877 F.Supp.2d
414, 423-24 (N.D.W. Va. 2012) (explaining that the “one important
caveat to the reach of the FAA” is that state law governs the
formation of the contract).
The Supreme Court of Appeals of West Virginia holds that an
exacting three-pronged test must be satisfied for incorporation by
reference to apply:
In the law of contracts, parties may
incorporate by reference separate writings
together into one agreement. However, a
general reference in one writing to another
document is not sufficient to incorporate that
other document into a final agreement. To
uphold the validity of terms in a document
incorporated by reference, (1) the writing
must make a clear reference to the other
document so that the parties’ assent to the
reference is unmistakable; (2) the writing
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must describe the other document in such terms
that its identity may be ascertained beyond
doubt; and (3) it must be certain that the
parties to the agreement had knowledge of and
assented to the incorporated document so that
the incorporation will not result in surprise
or hardship.
Syl. Pt. 2, State ex rel. U-Haul Co. of W. Virginia v. Zakaib, 232
W. Va. 432 (2013).
In U-Haul, the Court dealt with the common law doctrine of
incorporation by reference in the context of two documents. Id. at
435. First, the rental contract that was signed by plaintiffs
which contained a provision stating that “the plaintiffs agreed to
the terms of the Addendum.” Id. Second, was the “Rental Contract
Addendum” which U-Haul attempted to incorporate by reference into
the rental contract. Id. The addendum contained an arbitration
clause. Id. In holding the addendum was not incorporated by
reference, the Court reasoned that the “electronic contracts
succinctly referenc[ing]” the Addendum was “not a sufficient
reference to the Addendum[.]” Id. at 444. In addition, the
reference was “quite general” and provided “no detail” to ensure
those signing the rental agreement were aware of the addendum and
its terms. Id. Furthermore, U-Haul had a practice of supplying
the addendum to customers, “only after the Rental Agreement had
been executed[,]” and it designed the addendum to “look more like
a document folder advertising U-Haul products . . . rather than a
legally binding contractual agreement.” Id.
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Here, Plaintiff contends that Antero cannot satisfy the U-Haul
standard for several reasons. First, “Antero cannot identify . .
. the specific ‘working agreements’ that apply to the Netzer
leasehold estates described in the December 5, 1918, Assignment of
Leases[,]” and this is evidenced by the omission of descriptive
information, “such as the dates of the agreements, recording
information and/or instrument numbers.” ECF No. 49, at 10. In
large part, the lack of a date accompanying the description of the
Working Agreement in the 1918 Hope-Carter Assignment is the basis
for this contention (the 1918 Hope-Carter Assignment states:
“subject to the terms of the working agreements dated the ____ day
of _____ A.D. 19____”). Id. In addition, Antero has allegedly
failed to show how the Working Agreements apply to the December 5,
1918 Assignment of Leases, what the terms of the working agreements
are, and “how this issue is capable of being resolved ‘beyond
doubt’ when the December 5, 1918 Assignment of Leases is general
in nature, with no detail/specify being set forth on the face of
the instrument, or any indication that arbitration has any
relationship to the 1918 Assignment of Leases.” Id.
Despite the absence of precise specificity in the assignments,
these arguments are unavailing. First, although dates or other
descriptive information are missing in the December 18, 1918, Hope-
Carter Assignment to identify the Working Agreement, the
Assignment clearly states:
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[s]aid lands were heretofore embraced in
leases for oil and gas purposes in which the
The Carter Oil Company owned the leasehold oil
rights, and the Hope Natural Gas Company owned
the leasehold gas rights under and subject to
the terms of the working agreement[.]
ECF No. 43, ex. C, at 3. The Working Agreement referred to in
this excerpt of the Hope-Carter Assignment is clearly the agreement
that Hope Gas and Carter Oil entered in anticipation of the 1918
Assignment. ECF No. 43, ex. E. Similarly, the subsequent Carter-
Pigott assignment on February 26, 1925, states that gas rights are
to remain with Hope Gas, “and that the said lease and leasehold
estate are subject to a working agreement between The Carter Oil
Company and the Hope Natural Gas Company[.]” ECF No. 43, ex. D, at
1. Therefore, the identity of the Working Agreement referred to
by the Hope-Carter Assignment, and then the Carter-Pigott
Assignment, is hardly in doubt. These clear references to the
Working Agreement in the assignments make the parties’ assent to
it unmistakable.
Next, Working Agreement plainly sets forth how it applies to
the 1918 Assignment and its terms. ECF No. 43, ex. E. Lastly,
Plaintiff suggests that this case is “highly analogous” to U-Haul
because Antero seeks to incorporate “an unspecified 1911 working
agreement into a subsequent Assignment of Leases executed in 1918.”
ECF No. 49, at 9. However, largely for the same reasons above,
this argument falls short. Unlike U-Haul, the parties to each
assignment were given more than a succinct reference to the Working
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Agreement. Both assignments provided the necessary details
because they explicitly stated that the singular Working Agreement
entered into by Hope Gas and Carter Oil would govern the parties
moving forward. Additionally, there was no effort by any party to
conceal the Working Agreement until the assignments had been
executed.
Accordingly, the three-pronged U-Haul test for incorporation
by reference is satisfied. Under the Working Agreement, there is
an agreement to arbitrate that binds the parties before the court.
Thus, unless Antero waived its right to arbitrate, this matter
should be arbitrated pursuant to Sections 2 and 3 of the Federal
Arbitration Act.
C. Antero has not waived its right to arbitrate because the time
between its discovery of the Working Agreement, and it seeking
to compel arbitration, is not sufficient to constitute waiver.
“Nothing in the Federal Arbitration Act, 9 U.S.C. § 2,
overrides normal rules of contract interpretation. Generally
applicable contract defenses—such as . . . waiver . . . may be
applied to invalidate an arbitration agreement.” Syl. Pt. 3,
Williams v. Tucker, 239 W.Va. 395 (2017). Furthermore, under West
Virginia contract law:
[t]he common-law doctrine of waiver focuses on
the conduct of the party against whom waiver
is sought, and requires that party to have
intentionally relinquished a known right. A
waiver may be express or may be inferred from
actions or conduct, but all of the attendant
facts, taken together, must amount to an
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intentional relinquishment of a known right.
There is no requirement of prejudice or
detrimental reliance by the party asserting
waiver.
Id. at Syl. Pt. 5.
The Fourth Circuit holds that “[a] party may waive its right
to insist on arbitration if the party ‘so substantially utilize[es]
the litigation machinery that to subsequently permit arbitration
would prejudice the party opposing the stay.” MicroStrategy, Inc.
v. Lauricia, 268 F.3d 244, 249 (4th Cir. 2001) (explaining that
“the dispositive question is whether the party objecting to
arbitration has suffered actual prejudice.”). Therefore, the
party opposing arbitration based on waiver bears a “heavy burden.”
Id. at 250 (“Neither delay nor the filing of pleadings . . .
without more” is sufficient to constitute waiver.).
This heavy burden is not overcome when, with knowledge of an
applicable arbitration agreement, the proponent of such
arbitration participates in litigation for over eight months,
engages in discovery, participates in mediation, and has a motion
decided before the court. Patten Grading & Paving, Inc. v. Skanska
USA Bldg., Inc., 380 F.3d 200, 203, 205 (4th Cir. 2004) (explaining
where discovery produced an agreement to arbitrate entered by the
proponent’s successor in interest four months before arbitration
was sought, that delay did not constitute waiver.). Lastly,
because of the “strong federal policy favoring arbitration” the
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Fourth Circuit “will not lightly infer the circumstances
constituting a waiver.” Am. Recovery Corp. v. Computerized Thermal
Imaging, Inc., 96 F.3d 88, 95 (4th Cir. 1996).
Here, Mr. Gains contends that Antero, through its active
participation in litigation for an extended time, without raising
arbitration as an affirmative defense, has waived its right to
arbitrate. ECF No. 49, at 11-14. According to Gains, Antero’s
participation includes “multiple discovery requests,
scheduling/confer conferences, and case development.” Id. at 13-
14. However, like Patten, the delay between Antero’s discovery of
the Working Agreement (February 27, 2025) that bound its successor
in interest, and it moving to compel arbitration (June 18, 2025),
was around four months. Likewise, the time between the filing of
the Complaint and Antero’s Motion to Compel Arbitration was roughly
nine months (September 12, 2024, to June 18, 2025). Antero’s
participation in litigation for this period does not rise to the
level of substantial utilization of the litigation machinery.
MicroStrategy, 268 F.3d at 249. Thus, Plaintiff fails to meet the
heavy burden of showing Antero waived its right to arbitrate.
Accordingly, this Court declines to accept waiver as an
applicable defense and GRANT Antero’s Motion to Compel Arbitration
and Stay this Action [ECF No. 43].
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V. CONCLUSION
For the reasons discussed above, Antero Resources
Corporation’s Motion to Compel Arbitration and Stay this Action
[ECF No. 43] is GRANTED. The parties SHALL participate in
arbitration. This action is thus DISMISSED without prejudice
pending arbitration and STRICKEN from the Court’s active docket.2
Any remaining pending motions are accordingly DENIED AS MOOT.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order
to counsel of record.
DATED: March 31, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
2 “[D]ismissal is a proper remedy when all of the issues presented in a
lawsuit are arbitrable.” Choice Hotels Int'l, Inc. v. BSR Tropicana
Resort, Inc., 252 F.3d 707, 709–10 (4th Cir. 2001); Simmons v. TA
Operating, LLC, 2023 WL 2759771, at *6 (S.D.W. Va. Mar. 31, 2023).
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