Freebird, Inc. v. Cimarex Energy Co.,  No. 08-1190, 2008 WL 5575067 (D. Kan. Sep. 2, 2008). 

Your name does not have to be Van Zant, Collins, Gaines or Rossington to appreciate this case.  Click here for the music for the proper setting for this post.

Freebird Inc. sued Defendant Cimarex Energy over the way Cimarex calculated Freebird’s royalties on natural gas wells, and invited some friends up on stage in the form of a putative class of all royalty owners in Kansas. Though Freebird specified that less than $5,000,000 in damages was sought, Cimarex removed under CAFA anyway. But, the big wheels (of justice) keep on turning, sending Freebird back to sweet home Kansas state court.

In this opinion, the District of Kansas says Freebird must be traveling on, granting its motion to remand. When Cimarex tries using an affidavit giving the total expected past damages and projected future damages for 20 years into the future, without any backup data or explanation for the calculations, if plaintiff prevailed, it gets the Neil Young treatment. 

The court ignores the future damages, because Freebird’s complaint only seeks past damages through the date of class certification. The court points out that even Cimarex’s own conclusory affidavit does not say past damages exceed $5,000,000 (they are only $4,054,065.28). So, finding Cimarex has not proved to a reasonable probability that the amount in controversy exceeds $5,000,000, the court says we don’t need Cimarex around anyhow.

However, the smell of death is not all around Cimarex’s chances of getting into federal court. The Court gives hope of a Second Helping reunion tour in footnote 2. The Court points out that Cimarex can remove the case when it becomes removable. Presumably, this will occur when the past damages, which continue to accrue until the class is certified, increase to more than $5,000,000. 

So, Cimarex, has one more second chance. The editors suggest consulting Aerosmith’s management before the next attempt at removal to increase the chance of a safe landing in federal court.

SGJ