Free Motion to Remand - District Court of Colorado - Colorado

Case 1:04-cv-00051-REB-CBS

Document 93

Filed 02/17/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-RB-0051 (CBS) SCOTT A. CUNNINGHAM, Plaintiff, v. BHP BILLITON PETROLEUM GREAT BRITAIN LIMITED, a United Kingdom private limited company, BHP PETROLEUM GREAT BRITAIN PLC, a United Kingdom limited company, BHP PETROLEUM (U.K.) CORPORATION, a Delaware corporation, and HAMILTON BROTHERS PETROLEUM CORPORATION, a Delaware corporation, Defendants.

JOINT MOTION TO REMAND

Plaintiff and defendants respectfully move for remand of this lawsuit to the District Court, City and County of Denver, Colorado, in light of the decision of the Court of Appeals in Cunningham. v. BHP Petroleum Great Britain PLC, 427 F.3d 1238 (10th Cir. 2005). As grounds, plaintiff and defendants state: 1. Plaintiff commenced this action in the District Court, City and County of Denver,

Colorado, against BHP Billiton Petroleum Great Britain Limited (formerly known as BHP Petroleum Great Britain PLC), H Pt l m ( .. C roao ( H U " and F.C.H. B P e o u UK) opr i " P K ) re tn B , Operating Company ( C " B P Kr oe alleging that FCH had been fraudulently joined, " H ) H U e vd F . m and there was therefore complete diversity pursuant to 28 U.S.C. § 1332. (Doc. ## 1 and 2.)

Case 1:04-cv-00051-REB-CBS

Document 93

Filed 02/17/2006

Page 2 of 3

2.

On January 20, 2004, plaintiff moved to remand. (Doc. #4.) By Order entered on

August 5, 2004, the Court dn d ln f ' o o t r ad ( o.3. T e orhl that ei p i ism t n o e n. D c#5 h C ut e e a tf i m ) d FCH had been fraudulently joined. 3. With leave of Court, plaintiff later amended his complaint and added as a

defendant Hamilton Brothers Petroleum Corporation. 4. On October 25, 2005, the Court of Appeals decided the appeal from one of the

prior cases that plaintiff had filed in this court, Case No. 99-RB-1245. See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238 (10th Cr20)" i 05 ( . Cunningham I" ). 5. In Cunningham I, the Court of Appeals held that the citizenship of partnership

(there Hamilton Brothers International Associates, or HBIA) that had been assigned the NPI interests at issue in that case was determinative for purposes of diversity jurisdiction " from the beginning."47 . a14. 2 F d t 24 3 6. T eC ut f pelhl " l og im yhv apa dt th cut a h oro A pa e : At uh t a ae per h t orhd s d h e a e

diversity jurisdiction over the action when it was first removed to federal court and when plaintiffs filed the first amended complaint, the truth of the matter was that the court lacked diversity jurisdiction from the beginning because HBIA was always the real party in interest on the claims asserted in those complaints and its citizenship was determinative for purposes of jurisdict n Id. i. o" 7. T eC ut f pel a i e t C ut hl n t thr w sn sb c h or o A pa fr d h ors o i h t e a o uj t s fm e ' dg a e e

matter jurisdiction, r e e t C ut d m s l fh r oe cs,n,m n o e t ns e r d h ors i i ao t e vd aeada og t rh g, vs e ' s s e m h i remanded the case to this Court with directions to remand the removed case to state court. 8. In this case plaintiff has assigned his NPIs and CWIs to HBA, as alleged in his

Complaint. Thus, in light of the C ut f pel reasoning and holding in Cunningham I, oro A pa ' s

2

Case 1:04-cv-00051-REB-CBS

Document 93

Filed 02/17/2006

Page 3 of 3

because complete diversity cannot be alleged to exist based upon the citizenship of HBA and defendants, the reasoning and holding of Cunningham I require remand of this case back to state court. 9. By joining in this Joint Motion to Remand, neither Plaintiff nor Defendants shall

be deemed to have conceded or waived any factual argument or legal position with respect to the factual or legal effect of the Plaintiff's assignment of his NPIs and CWIs to HBA.

WHEREFORE, plaintiff and defendants respectfully move this Court to remand this matter to the District Court, City and County of Denver, Colorado. DATED: February 17, 2006 Respectfully submitted, s/ Frank C. Porada Bruce A. Featherstone, Esq. Frank C. Porada, Esq. DC Box 14 FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] E-mail: [email protected] ATTORNEYS FOR DEFENDANTS s/ Stuart N. Bennett Stuart N. Bennett, Esq. Eric B. Liebman, Esq. Charles F. Brega, Esq. LINDQUIST & VENNUM, PLLP 600 17th Street, Suite 1800 S Denver, Colorado 80202 Telephone: (303) 573-5900 Facsimile: (303) 573-1956 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] ATTORNEYS FOR PLAINTIFF

3