United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is “Defendants' Motion To Dismiss
Complaint Pursuant to Rule 12(b)(1) and Rule 12(b)(3) of the
Federal Rule of Civil Procedure and 28 U.S.C. §
1334(C)(1)” (Doc. 6) wherein the mover seeks to dismiss
the claims of Double Eagle Energy Services, LLC
(“DEES”) because: (1) this Court lacks subject
matter jurisdiction over Defendants MarkWest Utica EMG, LLC
(“MarkWest”) and Ohio Gathering Company, LLC
(“Ohio Gathering”); or (2) of improper venue.
Additionally, Defendants request that this Court abstain from
presiding over this matter and dismiss it in the interest of
justice and comity with Ohio state courts and respect for
Ohio law. For the following reasons, the Motion to Dismiss
should be GRANTED.
solicited bids for construction of approximately 2.57 miles
of natural gas pipeline (hereinafter referred to as the
“Project”) in Monroe County, Ohio. (Doc. 1,
¶ 4.). Ohio Gathering acquired pipeline, leasehold,
and/or easement rights and interest in, across, and/or under
the immoveable property involved with the Project.
Id. DEES submitted a bid and was awarded the
contract for construction of the Project for a total lump sum
amount of $3, 550, 086.14. (Id. ¶ 6).
alleges in its complaint that almost immediately upon
arrival, it encountered numerous issues that increased costs
and resulted in the submission of multiple change orders.
(Id. ¶ 12). DEES filed the instant suit for
breach of contract because MarkWest refused to pay DEES for
the change orders and withheld 10% of the contract as a
retainage. DEES seeks the sum of $3, 779, 197.53 plus
pre-judgment and post-judgment interest, costs, and
attorneys' fees. (Doc.1, Prayer, ¶ A). DEES also
seeks to validate and foreclose upon its Mechanic's Lien
under the statutory guidelines of the Ohio Revised Code.
to filing this lawsuit, DEES filed for Chapter 11 bankruptcy
in the Western District of Louisiana, Alexandria Division.
In re Double Eagle Energy Services, L.L.C., No.
17-80717, United States Bankruptcy Court for the Western
District of Louisiana. Defendants argue that this Court
should dismiss the suit or abstain from presiding over it
pursuant to 28 U.S.C. § 1334(c)(1) because it is a
“non-core matter.” Alternatively, Defendants
argue that the suit should be dismissed because the Western
District of Louisiana is an improper venue. Defendants
further seek dismissal under the doctrine of forum non
conveniens because the contract contains a mandatory
forum selection clause which requires the adversary
proceeding to be adjudicated in Ohio. Finally, Defendants
rely on the “local action doctrine” to support
to a motion for leave (Doc. 15), Defendants filed a
“Supplemental Memorandum in Further Support of
Defendants' Motion to Dismiss Complaint Pursuant to Rule
12(b)(1) and Rule 12(b)(3) of the Federal Rules of Civil
Procedure and 28 U.S.C. § 1334(C)(1)” (Doc. 18).
In their Supplemental Memorandum, Defendants inform the Court
of recent developments in the bankruptcy case which deprive
this Court of jurisdiction. As of this date, DEES has not
sought leave to respond to Defendants' Supplemental
to Defendants' Supplemental Memorandum is an “Order
on Motion to Sell Movable and Immovable Property of the
Estate to Secured Creditors” (the “Sale
Order”) dated October 4, 2018. (Doc. 18-1).
Sale Order provides in pertinent part:
IT IS FURTHER ORDERED that the Debtor hereby transfers and
assigns to GBT all of its rights and interests in the
following causes of action, themselves collateral of
A. Debtor's post-petition suit for breach of contract
filed against Mark West Utica EMG, LLC, any lien rights
referred to therein, pending in the United States District
Court for the Western District of Louisiana, Alexandria
Division, entitled “Double Eagle Energy Services, LLC
versus Mark West Utica EMG, LLC”, No. 1:18-CV-00573.
Sale Order further provides in pertinent part:
IT IS FURTHER ORDERED that this order shall be determined to
be a final order, self-executory, and implemented forthwith
in accordance with Federal Rules of Bankruptcy Procedure
argue that not only does the Sale Order extinguish this
Court's subject matter jurisdiction, but it also
invalidates this ...