Kendall et al v. Lancaster Exploration & Development Company

BRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 19 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 10 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Pa.September 19, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHARLES RICE KENDALL and ANN P. HOCHBERG, as Trustees for The Thomas E. Proctor Heirs Trust, and BANK OF AMERICA, N.A., and JOHN J. SLOCUM, JR. as Trustees for The Margaret O.F. Proctor Trust, Plaintiffs, v. LANCASTER EXPLORATION & DEVELOPMENT COMPANY, LLC, Defendant. Civil Action No. 17-cv-01117 Hon. Matthew W. Brann United States District Judge PLAINTIFFS’ CONSOLIDATED BRIEF IN OPPOSITION TO MOTIONS TO DISMISS Laura A. Lange Paul K. Stockman (admitted pro hac vice) McGuireWoods LLP 260 Forbes Avenue, Suite 1800 Pittsburgh, PA 15222 Telephone: (412) 667-6000 Fax: (412) 667-6050 llange@mcguirewoods.com pstockman@mcguirewoods.com Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 1 of 32 i TABLE OF CONTENTS Page INTRODUCTION AND SUMMARY ..................................................................... 1 FACTUAL BACKGROUND ................................................................................... 2 ARGUMENT ............................................................................................................ 4 A. Rooker-Feldman Abstention Is Inappropriate in this Case. ................. 4 B. Abstention Would Be Improper as There Is No Parallel Proceeding and this Court Is the Only Available Forum for Resolution of the Merits. ...................................................................... 9 1. Because the Trusts Do Not Seek a Declaratory Judgment, Brillhart Does Not Apply. .......................................................... 9 2. No Exceptional Circumstances Exist to Justify Abstention under Colorado River. ........................................... 15 C. The Complaint States a Claim for Relief ........................................... 18 1. The Quiet Title Claim Is Not Time-Barred. ............................ 18 2. Because There Has Been No Final Judgment on The Merits, the Quiet Title Claim Is Not Subject to Claim or Issue Preclusion........................................................................ 19 D. Lancaster Is the Only Necessary Party to this Action. ....................... 22 CONCLUSION ....................................................................................................... 24 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 2 of 32 ii TABLE OF AUTHORITIES Page(s) Cases Allen v. DeBello, 861 F.3d 433 (3d Cir. 2017) ................................................................................. 4 Allen v. Pa. SPCA, 488 F. Supp. 2d 450 (M.D. Pa. 2007) ................................................................... 7 Cty. of Berks ex rel. Baldwin v. Pennsylvania Labor Relations Bd., 678 A.2d 355 (Pa. 1996) ..................................................................................... 20 Boardakan Rest. LLC v. Atl. Pier Assocs., LLC, No. 11-5676, 2013 WL 5468264 (E.D. Pa. Oct. 2, 2013) ............................ 20, 21 Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942) ........................................................................................ 9-15 Brown v. Cooney, 442 A.2d 324 (Pa. Super. 1982) ................................................................... 20, 21 Cohens v. Virginia, 6 Wheat. 264 (1821) ............................................................................................. 9 Colonial Park Care Ctr., LLC v. Dallas, No. 16-302, 2016 WL 4765966 (M.D. Pa. Sept. 13, 2016) ................................. 7 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ........................................................... 2, 9, 10, 11, 15, 16, 18 Crawford v. Robinson, No. 14-04148, 2015 WL 4770613 (E.D. Pa. Aug. 12, 2015) ............................. 18 Crawley v. Hamilton County Comm’rs, 744 F.2d 28 (6th Cir. 1984) .......................................................................... 13, 16 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) .............................................................................................. 4 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 3 of 32 iii Dornheim v. Sholes, 430 F.3d 919 (8th Cir. 2005) ................................................................................ 7 In re Estate of Moskowitz, No. 354 EDA 2016, 2017 WL 2645011 (Pa. Super. June 20, 2017) ................. 21 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) .................................................................................. 4, 5, 6, 7 Federación de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17 (1st Cir. 2005) ................................................................................... 7 Golden Gate Nat. Sr. Care, LLC v. Minich ex rel. Estate of Shaffer, 629 F. App’x 348 (3d Cir. 2015) ........................................................................ 18 Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010) ............................................................................. 5, 8 Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006) ............................................................................ 7 Hynoski v. Columbia Cty. Redevelopment Auth., 941 F. Supp. 2d 547 (M.D. Pa. 2013) ............................................................... 5, 7 Kean v. Forman, 752 A.2d 906 (Pa. Super. 2000) ......................................................................... 18 Kelly v. Maxum Specialty Ins. Grp., No. 15-3618, --- F.3d ---, 2017 WL 3585182 (3d Cir. Aug. 21, 2017) ............................................................................................................. 11-15 In re Lampe, 665 F.3d 506 (3d Cir. 2011) ................................................................................. 4 Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216 (3d Cir. 2005) ............................................................................... 22 MacIntyre v. JP Morgan Chase Bank, 644 F. App’x 806 (10th Cir. 2016) ..................................................................... 10 Montgomery Cty., Pa. v. MERSCORP, Inc., 904 F. Supp. 2d 436 (E.D. Pa. 2012) .................................................................. 10 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 4 of 32 iv Mothershed v. Justices of the Supreme Court, 410 F.3d 602 (9th Cir. 2005) ................................................................................ 7 Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299 (3d Cir. 2009) ......................................................................... 15, 16 Nevada v. United States, 463 U.S. 110 (1983) ............................................................................................ 16 Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009) ............................................................................ 7 Perelman v. Perelman, 688 F.Supp.2d 367 (E.D. Pa. 2010) .................................................................... 10 Port Authority Police Benevolent Ass’n v. Port Authority of New York & New Jersey Police Dep’t, 973 F.2d 169 (3d Cir. 1992) ................................................................................. 7 Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) ............................................................................................ 15 R & R Capital, LLC v. Merritt, No. 07-2869, 2007 WL 3102961 (E.D. Pa. Oct. 23, 2007) .......................... 11, 16 Rarick v. Federated Serv. Ins. Co., 852 F.3d 223 (3d Cir. 2017) ................................................................... 10, 11, 12 Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014) ......................................................................... 12, 14 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .......................................................................................... 4, 5 Scher v. Bloomingdale, 978 F.2d 716 (9th Cir. 1992) .............................................................................. 13 Second State Enters. v. Mid-Atlantic Invs., LLC, No. 1:14-CV-00433, 2014 WL 4091846 (M.D. Pa. Aug. 18, 2014) .................. 23 Sexton v. NDEX W., LLC, 713 F.3d 533 (9th Cir. 2013) ........................................................................ 10, 16 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 5 of 32 v Shaffer v. Smith, 673 A.2d 872 (Pa. 1996) ..................................................................................... 20 Shetter v. Amerada Hess Corp., 14 F.3d 934 (3d Cir. 1994) ................................................................................. 22 Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) ............................................................................................ 12 Southwestern Energy Prod. Co. v. Forest Resources, LLC, 83 A.3d 177 (2013) ............................................................................................... 3 Southwind Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d 948 (5th Cir. 1994) ................................................................................ 11 Spring-Ford Area Sch. Dist. v. Genesis Ins. Co., 158 F. Supp. 2d 476 (E.D. Pa. 2001) .................................................................. 22 Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013) ............................................................................................ 9 Stewart v. SWEPI, LP, 918 F. Supp. 2d 333 (M.D. Pa. 2013) ................................................................. 19 Trent v. Dial Med. of Fla., Inc., 33 F.3d 217 (3d Cir. 1994) ................................................................................. 13 Univ. of Maryland at Baltimore v. Peat Marwick Main & Co., 923 F.2d 265 (3d Cir. 1991) ................................................................... 15, 16, 18 Westinghouse Elec. v. WCAB, 883 A.2d 579 (Pa. 2005) ..................................................................................... 20 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ...................................................................................... 10, 11 Yan Yan v. Pennsylvania State Univ., No. 4:14-CV-01373, 2015 WL 3953205 (M.D. Pa. June 29, 2015) .................. 20 Statutes 42 Pa.C.S. § 7531 et seq. ......................................................................................... 22 28 U.S.C. § 1257 ........................................................................................................ 5 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 6 of 32 vi Declaratory Judgment Act, 28 U.S.C. § 2201 ..................................................... 9, 11 Pennsylvania Guaranteed Minimum Royalty Act, Act of July 20, 1979, P.L. 183, § 1.3; P.L. 473, 58 P.S. § 33.3 .................................................... 3 Other Authorities 54 C.J.S. Limitations of Actions § 309 (2017) ........................................................ 18 Fed. R. Civ. P. 19 ..................................................................................................... 22 Restatement (First) of Judgments § 49 (1942)................................................... 20, 21 Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 7 of 32 1 INTRODUCTION AND SUMMARY The pending motions to dismiss all rest upon a fundamental misunderstanding—the incorrect belief that the state court issued a judgment “on the merits.” However, the state court order on which Defendants rely held only that “the court lacks subject matter jurisdiction over the lease-invalidity claims,” ordering dismissal on those grounds and moving forward on other issues. Order (ECF No. 15-2) at 9. Where a state court lacks subject matter jurisdiction and a claim is dismissed on procedural grounds (e.g. nonjoinder of parties or statute of limitations), its order has no collateral effect. Thus, the Rooker-Feldman doctrine and res judicata have no application here. In addition, there is no pending parallel state court action that would implicate these, or any other, abstention doctrines. Thus, while Defendants’ procedural fencing in the state court action may have prevented a ruling on the substance of the parties’ dispute, that gamesmanship is what permits (indeed, requires) this Court to take up the issue here. More fundamentally, the Motions fail because the two actions are not the same. Defendant Lancaster Exploration and Development, LLC (“Lancaster”) filed declarations of interest claiming it is “the owner of one-half of lessor’s royalty interests.” Declarations of Interest (ECF No. 15-4), at 4, 8, 11 & 16. These declarations created a new cloud on Plaintiffs’ title, and specifically claims ownership of 50% of their royalty interests. Based on this conduct, Plaintiffs seek to: (1) require Lancaster to withdraw all of its filings in the chains of title for the subject property (2) compel Lancaster to record surrenders of the leases; (3) enjoin Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 8 of 32 2 Lancaster from entering into any additional leases relating to the subject property, filing any documents claiming title or interest in the subject property; or accepting funds associated with leases of the subject property; (4) require Lancaster to remit to Plaintiffs all funds received in connection with any leases of the subject property; and (5) compel Lancaster to admit that the leases are invalid and to cancel or discharge any obligations under the Leases. Neither Lancaster’s actions precipitating this case (its 2016 declarations of interest) nor the relief Plaintiffs seek was before the state court. Thus, the quiet title claim presented here does not raise any issue that was decided by the state court, or relief that can now be granted in the state court action. As such, the Court must accept its “virtually unflagging obligation…to exercise the jurisdiction given” it, Colorado R. Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976), and Plaintiffs Trustees of the Thomas E. Proctor Heirs Trust (“PHT”) and Trustees of the Margaret O.F. Proctor Trust (“MPT”) (collectively, the “Trusts”) therefore ask the Court to deny the motions to dismiss. FACTUAL BACKGROUND This is an action seek to quiet title to certain subsurface estates in Bradford, Cameron, Clearfield, Elk, Jefferson, Lycoming and Sullivan Counties owned by the Trusts. Lancaster claims an interest in these properties pursuant to an oil and gas lease with the PHT and one of its predecessors, and has filed declarations claiming an interest in these properties, even though the leases are invalid on the ground that they violate the Pennsylvania Guaranteed Minimum Royalty Act, Act Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 9 of 32 3 of July 20, 1979, P.L. 183, § 1.3, as repealed and reenacted by Act of July 9, 2013, P.L. 473, §§ 1-2, 58 P.S. § 33.3 (the “GMRA”), because the leases purport to assign 50% of the Trusts’ royalty interest back to Lancaster. See Southwestern Energy Prod. Co. v. Forest Resources, LLC, 83 A.3d 177, 189 (2013). Lancaster has filed a number of instruments that cloud the Trusts’ title, which this action seeks to address and resolve. Specifically, on August 24, 2016, Lancaster filed a declaration of claim of interest with the Sullivan County Recorder of Deeds, placing a cloud on the Trusts’ title. As a result, the Trusts have been unable to lease their interests in the property, obtain their rightfully owed royalties, or receive any benefit from their oil and gas rights. Other claims relating to the lease at issue are presently pending before the Court of Common Pleas of Lycoming County in Southwestern Energy Prod. Co. v. Forest Resources, LLC, No. 11-02308, but the issues presented here are not presently before that court. There, the Trusts’ counterclaims for declaratory judgment were dismissed for lack of subject matter jurisdiction, because of the inability to join purportedly-indispensable parties. Because the state court decision foreclosed its ability to decide the merits of the Trusts’ claim, they initiated this quiet title action here, in order to obtain immediate relief to remove the cloud on their title. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 10 of 32 4 ARGUMENT: This Court Should Deny the Motions to Dismiss. A. Rooker-Feldman Abstention Is Inappropriate in this Case. The Rooker–Feldman doctrine1 “is implicated when, in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.” In re Lampe, 665 F.3d 506, 518 (3d Cir. 2011). As both the Third Circuit and Supreme Court explained, “the doctrine has narrow applicability,” and “does not bar suits that challenge actions or injuries underlying state court decisions…rather than the decisions themselves.” Allen v. DeBello, 861 F.3d 433, 438 (3d Cir. 2017). Thus, where federal claims are “traceable to [the defendant’s] actions, as opposed to the state court orders those actions allegedly caused,” Rooker-Feldman will not foreclose federal jurisdiction. Id. An analysis of Rooker and the ensuing decision in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), demonstrates that the doctrine does not apply here. In Rooker, the plaintiff had asked the federal court to declare expressly that an underlying state court judgment was “null and void.” Rooker, 263 U.S. at 414-415. Because the state court had acted within its jurisdiction in rendering the judgment, the Supreme Court held that a wrong decision “did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding.” Id. at 415. The Supreme Court 1 The Rooker–Feldman doctrine encompasses the principles set forth in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 11 of 32 5 ultimately held that lower federal courts lacked appellate jurisdiction over state court judgments because Congress had conferred that power on the Supreme Court only. Id. The Court in Exxon highlighted these underpinnings of the Rooker- Feldman doctrine because the lower federal courts had erroneously construed the doctrine “to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law.” Exxon, 544 U.S. at 283; see also Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 173 (3d Cir. 2010). In Exxon, the Supreme Court emphasized that the “limited circumstances” of Rooker-Feldman are not triggered simply by entry of a state court judgment in parallel proceedings. Id. at 291-292. The Court stressed that Rooker-Feldman does not preclude a subsequent federal action, even where a party attempts to litigate the same subject matter as a state court action. The statute on which Rooker-Feldman is based, 28 U.S.C. § 1257, does not stop a district court from exercising subject matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. If a federal plaintiff “present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party…, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.” Id. at 292-293 (emphasis added); see also Hynoski v. Columbia Cty. Redev. Auth., 941 F. Supp. 2d 547, 564 (M.D. Pa. 2013). Thus, Rooker-Feldman only deprives this Court of jurisdiction where the plaintiff seeks to have a state court judgment declared “null and void.” See Great Western, 615 F.3d at 173 (“[p]rohibited Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 12 of 32 6 appellate review consists of a review of the proceedings already conducted by the lower tribunal to determine whether it reached its result in accordance with law” (internal quotation omitted)). Otherwise, “[d]isposition of [a] federal action, once the state-court adjudication is complete, would be governed by preclusion law.” Exxon, 544 U.S. at 293 The distinction between jurisdiction and claim preclusion is critical here, where the state court claim was dismissed for lack of jurisdiction. The Trusts are not seeking to have that determination overruled (and are content to await correction of that erroneous determination in due course in the state courts). Indeed, it is that determination – by preventing a decision on the merits – that requires the claims to proceed before this Court. Instead, the Trusts seek to compel Lancaster to remove all filings recorded in Pennsylvania in which it claims an ownership interest in the subject property or the Trusts’ royalty interest and turn over any money received in connection with its claim. As the Supreme Court emphasized, to the extent any overlap exists in the subject matter of the actions, preclusion principles—and not the Rooker-Feldman doctrine—control. Exxon, 544 U.S. at 293. However, as discussed below, see infra § C.2, claim preclusion applies only where there is a final judgment on the merits, and an order dismissing an action for lack of subject matter jurisdiction does not have any res judicata or collateral estoppel effect. Notably, the Rooker- Feldman doctrine only applies to “a formal and final” state court judgment. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 13 of 32 7 Hynoski, 941 F.Supp.2d at 565.2 Indeed, the Supreme Court in Exxon highlighted this distinction, noting that the doctrine does not apply to a judgment “in state court on grounds (such as the state statute of limitations) that might not preclude relief in the federal venue.” Exxon, 544 U.S. at 293–94. Here, the state court order that Defendants rely on only determined that certain claims, in particular the Trusts’ declaratory judgment claims, could not proceed in that forum. It has no impact on this Court’s jurisdiction to resolve the quiet title claim presented here. Furthermore, the claims and relief sought in this action are distinct and stem from separate conduct. The Rooker-Feldman doctrine only applies if the complained-of-injury is “caused by a state court judgment; …the state court’s judgment [must be] the source of its new alleged injury.” Colonial Park Care Ctr., 2 Since Exxon, all federal circuits that have addressed the issue have concluded that Rooker-Feldman does not apply where, as here, a state court action or appeal is pending when the federal suit is filed. See Nicholson v. Shafe, 558 F.3d 1266, 1279 (11th Cir. 2009); Guttman v. Khalsa, 446 F.3d 1027, 1032 n.2 (10th Cir. 2006); Dornheim v. Sholes, 430 F.3d 919, 923-24 (8th Cir. 2005); Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005); Federación de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 25 (1st Cir. 2005). The Third Circuit has not addressed this issue since Exxon. But cf. Port Authority Police Benevolent Ass’n v. Port Authority of New York & New Jersey Police Dep’t, 973 F.2d 169, 178 (3d Cir. 1992) (applying the doctrine to cases pending appeal prior to Exxon). Here, the Trusts attempted to file an interlocutory appeal of the state court’s order; however, because the order was not final, the appeal was quashed. See Allen v. Pa. SPCA, 488 F. Supp. 2d 450, 461 (M.D. Pa. 2007) (holding Rooker-Feldman was inapplicable where the plaintiff had appealed, “through the appropriate channels,” the state court ruling). Under Exxon, the Trusts are not attempting to undo the state court decision but rather protecting themselves in the event that they lose “in state court on grounds (such as the state statute of limitations) that might not preclude relief in the federal venue.” Exxon, 544 U.S. at 293–94. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 14 of 32 8 LLC v. Dallas, No. 16-302, 2016 WL 4765966, at *2 (M.D. Pa. Sept. 13, 2016) (internal quotation omitted). In Great Western, the Third Circuit explained that “when the source of the injury is the defendant’s actions (and not the state court judgments), the federal suit is independent, even if it asks the federal court to deny a legal conclusion reached by the state court.” 615 F.3d 159 at 166. Based on this reasoning, the Court held that “‘[t]he fact that Defendants’ actions, rather than the state-court judgments, were the source of [the plaintiff’s] injuries is alone sufficient to make Rooker-Feldman inapplicable here.” Id. Here, the complained-of injury is caused by Lancaster’s actions, rather than by the state court. It is Lancaster’s newly-recorded instruments which cloud the Trusts’ title, causing the injury underlying this action. This injury is separate from the state court decision (that it lacked jurisdiction to decide the merits of the Trusts’ claims). The Trusts are not seeking to “null and void” the state court’s decision, but rather are seeking relief from injuries caused by Lancaster through acts separate and independent from the state court’s rulings. Simply put, this Court need not overturn the state court decision in order to grant the Trusts’ the requested relief, and as such this case does not run afoul of Rooker-Feldman.3 3 See Great Western, 615 F.3d at 173 (“[w]hen ‘the second court tries a matter anew and reaches a conclusion contrary to a judgment by the first court, without concerning itself with the bona fides of the prior judgment,’ the second, or federal, court ‘is not conducting appellate review, regardless of whether compliance with the second judgment would make it impossible to comply with the first judgment.”). Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 15 of 32 9 B. Abstention Would Be Improper as There Is No Parallel Proceeding and this Court Is the Only Available Forum for Resolution of the Merits. “Federal courts…have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 590 (2013) (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). Where jurisdiction exists, “a federal court’s ‘obligation’ to hear and decide a case is ‘virtually unflagging’” and “[p]arallel state-court proceedings do not detract from that obligation.” Id. at 591 (quoting Colorado R. Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976)). Defendants seek to avoid this “unflagging” obligation by attempting to twist the Trusts’ quiet title claim into a claim under the Declaratory Judgment Act in order to invoke the discretion given the Court pursuant to Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942), or Colorado River. However, the non-declaratory quiet title claim does not fall within the Brillhart doctrine; nor does it present the “exceptional case” that might allow abstention under Colorado River. 1. Because the Trusts Do Not Seek a Declaratory Judgment, Brillhart Does Not Apply. Defendants’ contention that the Brillhart doctrine allows the Court to decline jurisdiction fails for two critical reasons. First, Brillhart only applies to claims brought under the Declaratory Judgment Act, 28 U.S.C. § 2201 (“DJA”), which is not invoked here. Second, because the state court has determined it lacks jurisdiction, there is no parallel proceeding that could conflict with this action. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 16 of 32 10 a. This Action Does Not Invoke the Declaratory Judgment Act. The Supreme Court has expressly rejected the application of Brillhart beyond the context of declaratory judgments. Wilton v. Seven Falls Co., 515 U.S. 277, 285 (1995) (addressing the interplay between Brillhart and Colorado River and “reject[ing]” any suggestion “that Brillhart might have application beyond the context of declaratory judgments”). Here, no claim for declaratory judgment is sought, the DJA is not invoked, and the relief sought is wholly coercive in nature. Indeed, the Motions attempt to pervert Brillhart’s narrow thrust and, if accepted, would effectively render Brillhart applicable to every claim. After all, every case requires that the Court reach some legal determination (a “declaration” as to the law, of sort) before it can determine liability and grant relief. Such an expansive reading is not permitted under Wilton or under Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017). Here, the Trusts bring a quiet title claim that seeks coercive relief against Lancaster: that it remove its recorded instruments, cease recording any instruments claiming title in the Trusts’ properties, and turn over any monies received from its claim of ownership. Perelman v. Perelman, 688 F.Supp.2d 367, 373 (E.D. Pa. 2010) (if coercive claims are asserted, the “general rule . . . is that both actions may proceed until one has come to judgment” (internal quotation omitted)). Courts uniformly analyze coercive quiet title claims under Colorado River. See, e.g., Sexton v. NDEX W., LLC, 713 F.3d 533, 538 (9th Cir. 2013); MacIntyre v. JP Morgan Chase Bank, 644 F. App’x 806 (10th Cir. 2016); Montgomery Cty., Pa. v. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 17 of 32 11 MERSCORP, Inc., 904 F. Supp. 2d 436, 453 (E.D. Pa. 2012); R & R Capital, LLC v. Merritt, No. 07-2869, 2007 WL 3102961, at *15 (E.D. Pa. Oct. 23, 2007). Notably, the claim at issue in Colorado River itself sought a declaration of ownership of certain water rights, yet the Supreme Court held that because the claim was not brought under the DJA, it did not invoke Brillhart. See generally Colorado River, 424 U.S. 800; see also Wilton, 515 U.S. at 286 (“Neither Colorado River, which upheld the dismissal of federal proceedings, nor Moses H. Cone, which did not, dealt with actions brought under the Declaratory Judgment Act, 28 U.S.C. § 2201(a)”); see also Southwind Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d 948, 950 (5th Cir. 1994) (Brillhart applies only “when a district court is considering abstaining from exercising jurisdiction over a declaratory judgment action.”). Brillhart abstention analysis is limited to claims under the DJA because of the statute’s explicit language and animating purpose: “Congress sought to place a remedial arrow in the district court’s quiver; it created an opportunity, rather than a duty, to grant a new form of relief….” Wilton, 515 U.S. at 288. Indeed, as the Third Circuit has explained, the DJA’s purpose is to “clarify legal relationships in order to help putative litigants make responsible decisions about the future.” Rarick, 852 F.3d at 229 (internal quotation omitted); see also Kelly v. Maxum Specialty Ins. Grp., No. 15-3618, --- F.3d ---, 2017 WL 3585182, at *7 (3d Cir. Aug. 21, 2017) (“Declaratory judgments allow parties prospectively to settle concrete questions concerning their legal rights and duties”). The DJA was intended to “enlarge the range of remedies available in the federal courts by authorizing them to adjudicate rights and obligations even though no immediate Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 18 of 32 12 remedy is requested.” Rarick, 852 F.3d at 229 (internal quotations; alteration omitted; bold emphasis added); see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (the DJA does not apply where the plaintiff asks for “an immediately enforceable remedy like money damages or an injunction”). The independent claim test adopted in Rarick applies only in “mixed” claim actions— where both a declaratory judgment and legal claim are sought—and not where the DJA is not invoked. Id. at 229. Indeed, the Third Circuit specifically rejected use of Brillhart abstention where (despite the assertion of a DJA claim) the “claims are ripe for adjudication and in which the plaintiffs seek immediate relief.” Id. at 229- 230. Here, the Trusts are not seeking prospectively to settle questions concerning the parties’ legal rights. They are seeking immediate remedies: an injunction and a restitutionary award. The cloud on the Trusts’ title has caused and will continue to cause injury, preventing them from entering into oil and gas leases and from recovering monies that otherwise would be owed to them. Because the Trusts seek immediately enforceable coercive remedies, Brillhart does not apply here. b. There Is No Pending Parallel Action, and Brillhart’s Other Factors Weigh Against Abstention. Even if this Court were inclined to undertake Brillhart’s analysis, however, dismissal remains inappropriate. Critically, under Brillhart, “the absence of pending parallel state proceedings militates significantly in favor of exercising jurisdiction….” Reifer v. Westport Ins. Corp., 751 F.3d 129, 144 (3d Cir. 2014). In Kelly v. Maxum Specialty, the Third Circuit recently addressed what constitutes Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 19 of 32 13 “parallel proceedings” under Brillhart, and held that “the mere potential or possibility that two proceedings will resolve related claims between the same parties is not sufficient to make those proceedings parallel; rather, there must be a substantial similarity in issues and parties between contemporaneously pending proceedings.” 2017 WL 3585182, at *5. “Substantial similarity” does not exist “if the controversy between the parties will not necessarily be determined in that pending action.” Id. (internal quotations omitted); see id. at n.8 (“Substantial similarity” requires “a substantial likelihood that the state proceeding will fully dispose of the claims presented in the federal court.” (internal quotations and alterations omitted)). Cases are not parallel where the parties “employ substantially different ‘approaches’ which might ‘achieve potentially different results.’” Id. at *6 (quoting Trent v. Dial Med. of Fla., Inc., 33 F.3d 217, 224 (3d Cir. 1994) (internal alterations omitted)). This analysis requires “comparing the state and federal action as they contemporaneously exist, not as they might eventually be.” Id. at *5. Here, because the state court held it lacked jurisdiction to decide the merits of the Trusts’ GMRA claims, the issues involved in this action are not before the state court and will not be decided by that court. See Scher v. Bloomingdale, 978 F.2d 716 (9th Cir. 1992) (holding that abstention was improper where the state court action had been dismissed); Crawley v. Hamilton County Comm’rs, 744 F.2d 28, 31 (6th Cir. 1984) (“The issue is whether [the foreign proceeding], as it currently exists, is a parallel ... proceeding.”). The mere possibility that the trial court’s decision will be overturned on appeal does not render that proceeding Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 20 of 32 14 parallel under Kelly. “[F]oreclosing [a] remedy because the questions may eventually be answered in another forum undermines the utility of the declaratory action.” Kelly, 2017 WL 3585182, at *7; see id. (courts do not have “carte blanche to decline to hear cases within their jurisdiction merely because issues or factual disputes in those cases may be addressed in past or pending proceedings before state tribunals.” (internal quotation omitted)). In short, because the state court action will not resolve the claims raised here, it is not “parallel,” and that weighs significantly in favor of the Court’s exercise of jurisdiction under Kelly. For this Court to abstain, the Court must be “rigorous in ensuring” that the remaining factors heavily outweigh the exercise of jurisdiction.4 Here, however, factors relevant to the Brillhart anlaysis strongly favor this Court’s retention of jurisdiction. First, the federal action will resolve the merits of the Trusts’ claim and the uncertainties left open by the state court’s inability to decide the merits.5 Second, 4 The factors that guides a court’s analysis under Brillhart, as applicable here, include (1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in settlement of the uncertainty of obligation; (4) the availability and relative convenience of other remedies; (5) a general policy of restraint when the same issues are pending in a state court; (6) avoidance of duplicative litigation; and (7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata. Reifer, 751 F.3d at 146. 5 Although Lancaster contends that “federal court rulings on substantive matters of state law are non-binding,” that is simply not the case: a judgment in this action will of course be binding on the parties. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 21 of 32 15 the federal forum is as convenient for the parties, as the district court “sits in the same city as the court” in which the state court action is pending. Kelly, 2017 WL 3585182, at *8. Third, this Court “is well-equipped to address” the public interest in “the fair adjudication of legal disputes.” Id. at *9. Fourth, the state court decision foreclosing a determination on the merits weighs heavily in favor of this Court’s exercise of jurisdiction. Fifth, the matter at issue here—Lancaster’s cloud on the Trusts’ title—is not pending in the state court action. Sixth, “there is no reason at this juncture to be concerned about duplicative litigation as the issues in the two proceedings are distinct.” Id. Seventh, because the state court determined it lacked jurisdiction to hear the merits, foreclosing that forum, the Trusts were compelled to proceed in federal court. Accordingly, even though Brillhart does not apply here, an analysis of the Brillhart factors nonetheless militates heavily in favor of this Court’s exercise of jurisdiction. 2. No Exceptional Circumstances Exist to Justify Abstention under Colorado River. Colorado River abstention applies only in clear and exceptional cases, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Univ. of Maryland at Baltimore v. Peat Marwick Main & Co., 923 F.2d 265, 276 (3d Cir. 1991). “The doctrine is to be narrowly applied in light of the general principle that ‘federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.’” Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 307 (3d Cir. 2009) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)). Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 22 of 32 16 Critically in this case, Colorado River abstention applies only when “there is a parallel ongoing state court proceeding.” Nationwide, 571 F.3d at 307; Sexton, 713 F.3d at 538 (“Colorado River abstention does not apply absent ‘pending state court proceedings’ involving the same property.”); Crawley, 744 F.2d at 31 (“A necessary requirement for application of…Colorado River…is the presence of a parallel state proceeding.”). As shown above, the state court action is not a parallel proceeding, because it does not address the Trusts’ GMRA claim, and abstention under Colorado River is therefore inappropriate. Univ. of Maryland, 923 F.2d at 276 (“[W]hile certain issues to be litigated in the [plaintiff’s] federal claim may be identical to issues that have been or will be raised by…in state court, the lack of identity of all issues necessarily precludes Colorado River abstention.”). But even presuming parallelism, abstention remains inappropriate under Colorado River’s enumerated factors: (1) in an in rem case, which court first assumed jurisdiction over the property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether federal or state law controls; and (6) whether the state court will adequately protect the interests of the parties. Nationwide, 571 F.3d at 308. The first factor is inapplicable, because courts construe quiet title actions as in personam proceedings, not in rem. R & R Capital, LLC v. Merritt, No. 07’2869, 2007 WL 3102961, at *12 (E.D. Pa. Oct. 23, 2007) (citing Nevada v. United States, 463 U.S. 110, 143–44 (1983)). Here, the only relief requested in the complaint stems directly from the Pennsylvania Quiet Title Statute, and that Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 23 of 32 17 requested relief is directed at Lancaster alone, and is in personam in nature. Therefore, because the state court expressly disclaimed jurisdiction over the dispute, this factor weighs in favor of maintaining jurisdiction. The second and third factors also weigh against abstention, because the federal district court sits in the same city as the state court, and federal court procedures streamline matters. (Tellingly, it took more than five years for the pleadings to close in the state court proceeding.) Further, electronic filing is more convenient for out-of-town parties and counsel (i.e., every party and lawyer in this case). In addition, because the state court action will not resolve the merits of the Trusts’ claims, the two proceedings are not duplicative. The fourth factor is also irrelevant, because the state court expressly held that it lacked jurisdiction, and jurisdiction thus only exists in the federal forum. Moreover, despite the length of time the claims sat in state court, the Trusts’ GMRA claims never made it past the pleading stage, further indicating that this Court is the only forum that can provide an efficient means to resolve the merits of the dispute. Further, with respect to the fifth factor, although state law applies to the quiet title claim, the Trusts have no alternative forum and the Pennsylvania Superior Court has already provided its guidance on the substantive state law question in a published opinion, obviating the need for this Court to address novel or unclear principles of state law. Finally, the last requirement, whether the state court can adequately protect the rights of the parties, is generally “a one-way ratchet, serving only to weigh against abstention where a state court is incapable of protecting a party’s Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 24 of 32 18 interests.” Golden Gate Nat. Sr. Care, LLC v. Minich ex rel. Estate of Shaffer, 629 F. App’x 348, 352 (3d Cir. 2015). Here, because the state court specifically held that it lacked jurisdiction to decide the merits, the federal forum is the only avenue to protect the Trusts’ rights. Accordingly, the Court should not abstain under Colorado River because there is no parallel state court proceeding that will resolve the merits of the Trusts’ claims and even assuming parallelism of the two proceedings and “with the balance heavily weighted in favor of the exercise of jurisdiction,” the factors demonstrate this is not an “exceptional case.” Univ. of Maryland, 923 F.2d at 276. C. The Complaint States a Claim for Relief. 1. The Quiet Title Claim Is Not Time-Barred. Again disregarding the Trusts’ actual claims, Defendants rely upon the statute of limitations for a contract-based declaratory judgment action to argue that the action is time-barred. However, Pennsylvania law is clear that a plaintiff’s interest in property is clouded by a recorded instrument each day that the cloud remains of record, and thus that no statute of limitations applies to an action to quiet title. Kean v. Forman, 752 A.2d 906, 908 (Pa. Super. 2000) (explaining that an action to quiet title “cannot be subject to a statute of limitations, since the possessor’s interest in the property is clouded by the questioned mortgage each day that it remains.”); Crawford v. Robinson, No. 14-04148, 2015 WL 4770613, at *6 (E.D. Pa. Aug. 12, 2015) (“under Pennsylvania law, a quiet title action…has no statute of limitations); see also 54 C.J.S. Limitations of Actions § 309 (2017) (“A Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 25 of 32 19 cause of action to quiet title or for the removal of a cloud on title has been said to be a continuing one and never barred by limitations while the cloud exists.”). Here, Lancaster’s recorded filings place a cloud on the Trusts’ title every day until they are removed of record, and the quiet title claim is thus timely. In addition, even if this Court were to apply a statute of limitations to the quiet title action, Lancaster’s filings of the declarations of interest in August 2016 triggered new injuries and a new limitations period. See, e.g., Stewart v. SWEPI, LP, 918 F. Supp. 2d 333, 343 (M.D. Pa. 2013) (explaining that in the analogous context of slander of title claims, “each republication triggers a new…statute of limitations”). Indeed, Lancaster’s August 2016 filing claims it is the owner of 50% of the Trusts’ royalty interests in any oil and gas produced from the properties at issue. This declaration infringes upon the Trusts’ right to collect monies owed to them on account of oil and gas development on their properties, and restricts the Trusts’ ability to enter into productive development of the properties because Lancaster is asserting its Lease is still valid (and is, it appears, threatening to sue any lessee who attempts to reach agreement with the Trusts). 2. Because There Has Been No Final Judgment on The Merits, the Quiet Title Claim Is Not Subject to Claim or Issue Preclusion. Generally, res judicata encompasses two preclusion concepts: “(1) issue preclusion, a more narrow application of traditional res judicata that forecloses litigation of a litigated and decided matter (often referred to as collateral estoppel); and (2) claim preclusion, which disallows litigation of claims that have either been Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 26 of 32 20 litigated or were never litigated, but which should have been presented in an earlier suit.” Yan Yan v. Pennsylvania State Univ., No. 4:14-CV-01373, 2015 WL 3953205, at *6 (M.D. Pa. June 29, 2015). Both claim and issue preclusion require a final judgment on the merits in the prior action. Cty. of Berks ex rel. Baldwin v. Pennsylvania Labor Relations Bd., 678 A.2d 355, 359 (Pa. 1996) (“[I]n order for either collateral estoppel or res judicata to apply, the issue or issues must have been actually litigated and determined by a valid and final judgment.”); see also Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996) (requiring “a final judgment on the merits” and “a full and fair opportunity to litigate the issue in question in a prior action.”). “An ‘on the merits’ judgment is one based on substantive law, rather than procedural rules.” Boardakan Rest. LLC v. Atl. Pier Assocs., LLC, No. 11-5676, 2013 WL 5468264, at *7 (E.D. Pa. Oct. 2, 2013) (citing Brown v. Cooney, 442 A.2d 324, 326 (Pa. Super. 1982)). Under Pennsylvania law, “[a] statute of limitations is a procedural rule that extinguishes the remedy rather than the cause of action.” Westinghouse Elec. v. WCAB, 883 A.2d 579 n.11 (Pa. 2005). Accordingly, Pennsylvania courts, adopting the Restatement of Judgments, hold that “[w]here a valid and final personal judgment not on the merits is rendered in favor of the defendant, the plaintiff is not thereby precluded from thereafter maintaining an action on the original cause of action and the judgment is conclusive only as to what is actually decided.” Restatement (First) of Judgments § 49 (1942) (emphasis added); see Brown, 442 A.2d at 326. As comment a to Section 49 explains: Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 27 of 32 21 A judgment for the defendant is not on the merits where it is based merely on rules of procedure rather than on rules of substantive law. If the judgment determines that the plaintiff has no cause of action, it is on the merits; but if it determines only that the plaintiff is not entitled to recover in the particular action, it is not on the merits. If the defendant, whether on demurrer, motion, verdict or otherwise, obtains judgment in his favor on a ground not involving the substance of the plaintiff’s cause of action, the cause of action is not extinguished thereby. This is the case, for example, where the judgment is based on the lack of jurisdiction of the court over the defendant or over the subject of the action, on the plaintiff’s lack of capacity to sue, on the pendency of a prior action, on the misjoinder or nonjoinder of parties or on the misjoinder of causes of action. Restatement (First) of Judgments § 49 cmt. a (1942); see also Brown, 442 A.2d at 326 (adopting comment a); In re Estate of Moskowitz, No. 354 EDA 2016, 2017 WL 2645011, at *5 (Pa. Super. June 20, 2017) (non-precedential) (citing Brown for the principle that a “[a] judgment for the defendant is not on the merits where it is based merely on rules of procedure rather than on rules of substantive law.”). Here, the state court held that it lacked jurisdiction, because (the court held) necessary parties could not be joined without violating the statute of limitations. This is a purely procedural basis for disposing of the Trusts’ GMRA claims, and therefore is not a final judgment “on the merits.” See Boardakan, 2013 WL 5468264, at *7 (state court’s dismissal on statute of limitations grounds was not a final judgment on the merits, and therefore, preclusion principles did not apply). As such, the state court order cannot have any preclusive effect here. In addition, this cause of action here differs from the claims before the state court. The Trusts do not bring a declaratory judgment action, which invoked standards for mandatory joinder and a limitations period that differ from those Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 28 of 32 22 applicable to the quiet title action presented here. In addition, Lancaster’s August 2016 filings have never been at issue in the state court action, and as set forth above, see supra at § C.1, they are not time-barred, taking this action outside of any prior limitations determination. Accordingly, this Court faces different claims, different legal standards, and different facts, and the Trusts’ quiet title claim accordingly is not precluded by the state court’s interlocutory ruling on jurisdictional grounds. D. Lancaster Is the Only Necessary Party to this Action. Lancaster next contends that its assignees and sub-assignees are indispensable parties that must be joined. Lancaster principally relies upon the state court’s decision on indispensable parties, and on Pennsylvania state law. However, in federal court, the determination of whether a party is indispensable to a proceeding is governed under Federal Rule 19. Shetter v. Amerada Hess Corp., 14 F.3d 934, 937 (3d Cir. 1994). Moreover, the state court decision was based upon Pennsylvania’s unique joinder requirements under the declaratory judgment statute, 42 Pa.C.S. § 7531 et seq., which is not invoked in this case (and could not be invoked, as the federal DJA would govern any declaratory judgment claim). Spring-Ford Area Sch. Dist. v. Genesis Ins. Co., 158 F. Supp. 2d 476, 482-483 (E.D. Pa. 2001) (explaining difference between federal and Pennsylvania rules for joining indispensable parties in declaratory judgment actions). “Under Fed.R.Civ.P. 19(a)(2), a party is only ‘necessary’ if it has a legally protected interest, and not merely a financial interest, in the action.” Liberty Mut. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 29 of 32 23 Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 230 (3d Cir. 2005) (quoting Spring-Ford, 158 F. Supp. 2d at 483). In addition, “if an independent basis of liability is not asserted by or against the party seeking to be joined and the remaining parties may obtain complete relief without the other party’s presence and otherwise would not suffer any prejudice, the other party is not an indispensable party.” Second State Enters. v. Mid-Atlantic Invs., LLC, No. 14-CV-00433, 2014 WL 4091846, at *4-5 (M.D. Pa. Aug. 18, 2014). In Second State Enterprises, the court held that a party was not indispensable because the dispute involved only the rights and obligations of the plaintiffs and defendant, not any rights or obligations of the third party. Id. This was true even though the plaintiffs had made “a general request for declaratory judgment” that the third party had committed a breach of an agreement with the plaintiffs. Id. at *12. Here, Lancaster and the Trusts may obtain complete relief without the presence of the assignees. The dispute here involves only the rights and obligations of Lancaster and the Trusts under the lease at issue, and whether Lancaster’s conduct creates a cloud on the Trusts’ title. The Trusts are not seeking any relief against any of Lancaster’s assignees.6 6 By consenting to their Intervention, the Trusts do not concede that Intervenors SWN Production Company, LLC, Chief Oil & Gas, LLC, Chief Exploration and Development LLC, Radler 2000 L.P., Tug Hill Marcellus, LLC, and Enerplus Resources (USA) Corporation are necessary parties; the Trusts acquiesced in the requested intervention simply to avoid delay and expense. Of note, however, Intervenors were the only parties that even the state court found to be necessary, under Pennsylvania’s more stringent joinder requirements; hence, even if there were parties other than Lancaster who are necessary to the resolution of this dispute, they have already been joined. Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 30 of 32 24 CONCLUSION For the foregoing reasons, the Court should deny the Motions to Dismiss and allow the Trusts’ claim to proceed. Dated: September 19, 2017 Respectfully submitted, /s/ Laura A. Lange Laura A. Lange Pa. ID No. 310733 Paul K. Stockman (admitted pro hac vice) Pa. ID No. 66951 McGuireWoods LLP 260 Forbes Avenue, Suite 1800 Pittsburgh, PA 15222 Telephone: (412) 667-6000 Fax: (412) 667-6050 llange@mcguirewoods.com pstockman@mcguirewoods.com Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 31 of 32 25 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served electronically via the Court’s ECF system this 19th day of September 2017, upon the following: Kevin J. McKeon Whitney E. Snyder Hawke, McKeon & Sniscak, LLP 100 N. 10th Street Harrisburg, PA 17101 Telephone: 717-236-1300 kjmckeon@hmslegal.com wesnyder@hmslegal.com Counsel for Defendant Lancaster Exploration & Development Company, LLC George A. Bibikos Cozen O’Connor 17 N. Second St., Suite 1410 Harrisburg, PA 17101 (717) 703-5907 gbibikos@cozen.com Counsel for Chief Oil and Gas, LLC; Chief Exploration and Development, LLC; Radler 2000 L.P.; Tug Hill Marcellus, LLC; and Enerplus Resources (USA) Jeffrey J. Malak, Esquire Chariton, Schwager & Malak 138 South Main St., P.O. Box 910 Wilkes-Barre, PA 18703-0910 570-824-3511 jjm@csmlawoffices.com Counsel for SWN Production Company, LLC /s/ Laura A. Lange Case 4:17-cv-01117-MWB Document 26 Filed 09/19/17 Page 32 of 32