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Joseph L. Dunn Oil and Gas v. R.L. Wharton Enterprises

March 30, 2011

JOSEPH L. DUNN OIL AND GAS, PLAINTIFF,
v.
R.L. WHARTON ENTERPRISES, LTD., DEFENDANT.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff, Joseph L. Dunn Oil and Gas, initiated this lawsuit against Defendant, R.L. Wharton Enterprises, Ltd., by filing a complaint in the Court of Common Pleas of Greene County, Pennsylvania on March 2, 2009. On October 15, 2010, Defendant filed a notice of removal.

Presently before this Court for disposition is a motion for remand, brought by the Plaintiff. For the reasons that follow, Plaintiff=s motion for remand will be granted and the case will be remanded to the Court of Common Pleas of Greene County, Pennsylvania.

Facts

Beginning in June 2008, Plaintiff (Dunn) contracted with Defendant (Wharton) to perform certain oil and gas well maintenance activities on a well located in Richhill Township, Greene County, Pennsylvania. Dunn states that it was an oral contract wherein Wharton was contracted with to place the well back into production." (Second Am. Compl. ¶ 3.)*fn1 Dunn alleges that, as a result of the negligent conduct of Wharton's employees, on or about July 3, 2008, certain tools or equipment were dropped into the well. (Compl. ¶ 4; Am. Compl. ¶ 4.)*fn2

Dunn further alleges that:

As a result of this negligent conduct, the Plaintiff suffered damages which included the expense of fishing out the tools or equipment and the loss of any benefit from the sums of money paid on account to Defendant for the work it was to perform. Defendant never completed the work contracted and the Well remains inoperable. (Second Am. Compl. ¶ 5.)

Procedural History

Dunn initiated this action by filing a complaint in the Court of Common Pleas of Greene County, Pennsylvania on March 2, 2009 at No. 2009-262. The complaint alleged that Wharton negligently failed to complete its work on the well and sought damages in an amount in excess of $82,000.00. On March 23, 2009, Wharton filed preliminary objections in which it raised the fact that the complaint failed to state Dunn's standing to assert a claim for lost revenue.*fn3

Dunn responded to the preliminary objections with an Amended Complaint, filed on June 12, 2009. The Amended Complaint also sought damages in excess of $82,000.00. On July 24, 2009, Wharton filed preliminary objections to the Amended Complaint, in which it challenged an allegation that oil and gas rights had been assigned to Dunn and submitted a Lease Title Abstract demonstrating that title to the property and oil and gas rights were vested in persons other than Dunn.*fn4 On September 15, 2009, Judge William Nalitz sustained the preliminary objections and ordered Dunn to file a Second Amended Complaint within 20 days.*fn5

Dunn filed a Second Amended Complaint on September 18, 2009. The Second Amended Complaint alleged damages in excess of $150,182.61, including $83,395.61 in "improper charges by Defendant arising from the damages caused by Defendant." (Second. Am. Compl. ¶ 5(e).) On October 13, 2009, Wharton filed preliminary objections to the Second Amended Complaint, asserting, inter alia, that Dunn had no legally cognizable claim against Wharton for the $83,395.61 that it owed to Wharton.*fn6 On December 11, 2009, Judge Nalitz sustained the preliminary objections in part and struck paragraph 5(e) from the Second Amended Complaint.*fn7

As a result, the amount of damages asserted was reduced to $66,787.00.

On January 8, 2010, Wharton filed an Answer and New Matter,*fn8 to which Dunn responded on March 17, 2010.*fn9 On May 25, 2010, Wharton took the deposition of Joseph L. Dunn, who does business as Joseph L. Dunn Oil and Gas.*fn10 On July 23, 2010, Wharton filed a Motion for Partial Summary Judgment, in which it asserted that Dunn could not recover the sum of $48,921.50 that it paid to Wharton prior to the incident on July 3, 2008 in which Wharton's employees allegedly dropped certain tools or equipment into the well.*fn11 Dunn filed a response to this motion on August 26, 2010.*fn12 On September 14, 2010, Judge Nalitz entered an order denying Wharton's motion.*fn13
On September 24, 2010, Wharton filed a complaint in this Court against Dunn, which was docketed at Civil Action No. 10-1267. The complaint invokes the Court's diversity jurisdiction, in that Wharton is a West Virginia resident, Dunn is a Pennsylvania resident and the amount in controversy exceeds the sum of $75,000.00, exclusive of interest and costs. In the complaint, Wharton alleges that Dunn has refused to pay some of the invoices relating to Wharton's work on the well and it seeks (under theories of breach of contract and unjust enrichment) damages of $113,396.76, plus standard finance charges since July 1, 2010, costs and other just and proper relief.*fn14 On November 19, 2010, Dunn filed a motion to dismiss, arguing that: 1) the claims should have been asserted as compulsory counterclaims to the state court action; and 2) the Court should abstain from exercising jurisdiction pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).*fn15 Wh ...

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