Opinion
CIVIL ACTION H-13-1983
11-12-2013
ROOSTER OIL & GAS L.L.C., et al., Plaintiffs, v. BIRNHAM ENERGY INVESTMENT COMPANY, L.P., et al., Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM & RECOMMENDATION AND ORDER OF REMAND
Pending before the court is the Magistrate Judge's Memorandum & Recommendation (Dkt. 30) recommending that the counter-plaintiffs' motion to remand (Dkt. 6) be granted with respect to remand and denied with respect to attorneys' fees and costs. Having reviewed the Memorandum & Recommendation, the pleadings, counter-defendant Chet Morrison's ("Morrison") objections (Dkt. 34), and the applicable law, the court OVERRULES Morrison's objections and ADOPTS the Magistrate Judge's Memorandum & Recommendation.
The Magistrate Judge recommended that this court remand the case on grounds that Morrison, a counter-defendant, did not have standing to remove the action under 28 U.S.C. § 1441(a). Dkt. 30 at 9-10. That statute restricts the removability of a case to "the defendant or the defendants" and has been held not to extend to a plaintiff/counter-defendant. 28 U.S.C. § 1441(a); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941) (holding that a plaintiff/counter-defendant may not remove a case under § 1441(a)). To date, the Fifth Circuit has not decided the related question of whether a counter-defendant, who was not an original plaintiff to the action, may remove the case under § 1441(a). Nonetheless, the overwhelming majority of courts have adopted Shamrock's admonition to strictly construe the removal statutes and have not extended a right of removal under § 1441(a) to counter-defendants or third-party defendants. See, e.g., Huntsman Corp. v. Int'l Risk Ins. Co., 2008 WL 4453170, at *3 (S.D. Tex. Sept. 26, 2008) (collecting cases).
Morrison asks the court to adopt the minority view based on a handful of district court opinions, some within this circuit and one from Illinois, that have suggested or explicitly held that third-party defendants may remove a case under § 1441(a). Dkt. 34 at 7-13. This court, however, declines the invitation. Absent clear guidance from Congress or a higher court affirming that counter-defendants may remove cases under § 1441(a), this court will not expand the statutory language beyond its logical limitations. Morrison's objections are OVERRULED.
The Magistrate Judge's Memorandum and Recommendation is therefore ADOPTED, and pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the 165th Judicial District Court of Harris County, Texas. All parties shall bear their own costs and attorneys' fees related to removal.
Signed at Houston, Texas on November 12, 2013.
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Gray H. Miller
United States District Judge