40 F.R.D. 381 | S.D.N.Y. | 1966
This is an action that involves Louisiana land, concerns an order of the Louisiana Conservation Commissioner permitting oil drilling operations thereon and is governed by Louisiana law.
The suit revolves about a claimed breach of an oil, gas and mineral lease of land known as the Berteaux tract, located in Ascension Parish, Louisiana. The plot, which fronts on the Mississippi River, is about 300 feet wide and runs back from the river a distance of approximately two miles. In June 1963 Alice Crawford, the plaintiff, together with twenty other co-owners of undivided interests in the Berteaux tract, leased the mineral rights to the defendant, Texaco, Inc., which in turn, in July 1963, subleased certain of its rights to Amax Petroleum Corporation, R. B. Mitchell and J. M. Flaitz. Plaintiff’s twenty co-lessors are not named herein as plaintiffs or defendants; Mitchell and Flaitz, two of the three sublessees, are not named as defendants. Amax, the third sublessee, while named a defendant, has not been served with process.
The claims here asserted by the plaintiff center about Louisiana laws designed to conserve her petroleum resources.
Since the Berteaux tract was only 300 feet wide, oil could not be taken from it unless combined with another tract or tracts into a drilling unit. Immediately adjacent to the Berteaux tract is the Marchand tract, less than 330 feet wide, which geological information in the possession of Amax disclosed as the most logical place for drilling a well. The present suit arises out of an application by Amax to the Louisiana Conservation Commissioner which was favorably passed upon after a public hearing upon notice to all interested parties, including the plaintiff, whereby portions of the Marchand, Berteaux and other adjacent tracts were forced pooled into two drilling and production units.
Plaintiff claims that the application by Amax to the Conservation Commissioner for the formation of the integrated units constituted a breach of the original lease, since a provision of the lease which would have permitted the lessee to form drilling units had been stricken therefrom. The complaint sets forth four separate claims —two by plaintiff individually, one seeking damages for the claimed breach and the other seeking a termination of the lease, and, based upon the same facts,
The defendant moves both on procedural and substantive grounds for dismissal of the complaint. It seeks dismissal for failure to join as indispensable parties (1) plaintiff’s twenty co-owners as either plaintiffs or defendants; (2) two of the three sublessees, R. B. Mitchell and J. M. Flaitz, (3) the persons having interests in all adjacent lands included in the units, and (4) the Conservation Commissioner of the State of Louisiana. Texaco further urges that the two class actions must be dismissed on the ground that plaintiff does not adequately represent the members of the alleged class. Finally, it presses that, apart from the foregoing, the complaint fails to state a claim upon which relief can be granted and, since affidavits have been submitted, seeks summary judgment.
The court is of the view that the defendant’s contention with respect to the failure to join indispensable parties—at least as far as the co-lessors are concerned—must be upheld. There is no prescribed formula for determining indispensability of parties, and the general policy has been to decide the issue in each case on practical considerations.
There remain plaintiff’s two class actions, which are based upon the same allegations as her individual claims, but which she asserts are brought on “behalf of herself and all other co-lessors.” In order to permit the maintenance of the class actions, it must appear that the persons constituting the class are so numerous that it is impracticable to bring them all before the court and that plaintiff will adequately represent their common interests.
We consider first the latter requirement. The issue here is whether plaintiff’s interests are compatible with and not antagonistic to those she purports to represent.
Plaintiff by this action seeks in addition to money damages an adjudication terminating the lease for the claimed breach. As already noted, when notice of the proceeding was given by the State Conservation Commissioner to interested parties, which included plaintiff and all her co-lessors, neither she nor nineteen others (one did) appeared or opposed the application. Sixteen of her co-lessors have accepted the royalty payments distributed under the unitization order, which suggests that at least that number of the class the plaintiff purports to represent do not disavow the lease or make any claim that the application for forced unitization constituted a breach of the lease. The fact that none of the plaintiff’s co-lessors has joined with her in the attack on the lease is also of significance,
Apart from the fact that plaintiff’s interests are antagonistic to those of other co-lessors, there is also a substantial question as to whether the nu-merosity safeguard has been satisfied,
Under the circumstances here presented the motion to dismiss the class actions
. Since the action arises out of a lease of Louisiana land and the use to which the lessee put the land and since the judgment will affect the lessee’s interest in the land, the New York courts would apply Louisiana’s substantive law in deciding the issues presented. See In re Barnett, 12 F.2d 73, 77 (2d Cir.), cert. denied sub nom. United Cigar Stores Co. of America v. Rayher, 273 U.S. 699, 47 S.Ct. 94, 71 L.Ed. 846 (1926); Mallory Assocs., Inc. v. Barving Realty Co., 300 N.Y. 297, 301, 90 N.E.2d 468, 15 A.L.R.2d 1193 (1949); Chester Airport, Inc. v. Aeroflex Corp., 37 Misc.2d 145, 237 N.Y.S.2d 752, 756 (Sup.Ct.1962), modified on other grounds, 18 A.D.2d 998, 238 N.Y.S.2d 715 (1st Dep’t 1963); Bowen v. Frank, 92 N.Y.S.2d 527 (Sup.Ct.1949). This court, sitting in diversity, must apply the same law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
. In an affidavit submitted by Texaco upon the instant motion, it is averred that Amax is a Delaware corporation with its principal place of business in Oklahoma.
. La.Rev.Stat. tit. 30, ch. 1 (1950).
. See La.Rev.Stat. tit. 30, § 2 (1950).
. See La.Rev.Stat. tit. 30, § 4(C) (3) (1950).
. The parties appear in agreement that as a practical matter all modern wells are at least that deep.
. See Louisiana Dep’t of Conservation, Statewide Order No. 29-E, July 15, 1957, as amended, Sept. 5, 1957.
. Ibid. See also La.Rev.Stat. tit. 30, § 4 (C) (13) (1950).
. See Fed.R.Civ.P. 12(b); Cook v. Hirschberg, 258 F.2d 56, 57-58 (2d Cir. 1958); Hirsch v. Archer-Daniels-Midland Co., 258 F.2d 44, 45-46 (2d Cir. 1958).
. See Shaughnessy v. Pedreiro, 349 U.S. 48, 54, 75 S.Ct. 591, 99 L.Ed. 868 (1955); Niles-Bement-Pond Co. v. Iron Moulders’ Union, 254 U.S. 77, 80, 41 S.Ct. 39, 65 L.Ed. 145 (1920); Roos v. Texas Co., 23 F.2d 171, 172 (2d Cir. 1927), cert. denied, 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001 (1928).
. The moving affidavit states that “most” of the co-lessors have accepted the payments; the defendant’s brief fixes the number as 16, and this statement is not challenged.
. 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1855). See also Roos v. Texas Co., 23 F.2d 171, 172 (2d Cir. 1927), cert. denied, 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001 (1928).
. 58 U.S. (17 How.) at 139.
. See Kentucky Natural Gas Corp. v. Duggins, 165 F.2d 1011, 1016 (6th Cir. 1948). Accord, Brodsky v. Perth Amboy Nat’l Bank, 259 F.2d 705, 707 (3d Cir. 1958); Guth v. Texas Co., 155 F.2d 563, 566 (7th Cir. 1946), cert. denied, 332 U.S. 844, 68 S.Ct. 268, 92 L.Ed. 415 (1947); 3 Moore, Federal Practice ¶ 19.-09, at 2158-59 (2d ed. 1964).
. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Quirke v. St. Louis-S. F. Ry., 277 F.2d 705, 708 (8th Cir.), cert. denied, 363 U.S. 845, 80 S.Ct. 1615, 4 L.Ed.2d 1728 (1960); Molina v. Sovereign Camp, W.O.W., 6 F.R.D. 385, 393-395 (D.Neb.1947); 3 Moore, Federal Practice ¶ 23.07(3), at 3428-29 (2d ed. 1964).
. See Shields v. Barrow, 58 U.S. (17 How.) 130, 141-142, 15 L.Ed. 158 (1855); 3 Moore, Federal Practice ¶ 19.04, at 2116 (2d ed. 1964). See also Fed.R.Civ.P. 4(f).
. Fed.R.Civ.P. 23(a); Kainz v. Anheuser-Busch, Inc., 194 F.2d 737, 740 (7th Cir.), cert. denied, 344 U.S. 820, 73 S.Ct. 17, 97 L.Ed. 638 (1952).
. See 3 Moore, Federal Practice ¶ 23.07 (3), at 3428 (2d ed. 1964). See also Molina v. Sovereign Camp, W.O.W., 6 F.R.D. 385, 395 (D.Neb.1947); Clark v. Chase Nat’l Bank, 45 F.Supp. 820, 823 (S.D.N.Y.1942).
. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940).
. Compare Quirke v. St. Louis-S. F. Ry., 277 F.2d 705, 708 (8th Cir.), cert. denied, 363 U.S. 845, 80 S.Ct. 1615, 4 L.Ed.2d 1728 (1960).
. Of the others, 7 are residents of Louisiana, 4 of California, 2 of the State of Washington, and one each of Arizona, Maryland, and Nevada.
. Compare Matthies v. Seymour Mfg. Co., 270 F.2d 365, 372 (2d Cir. 1959), cert. denied, 361 U.S. 962, 80 S.Ct. 591, 4 L.Ed.2d 554 (1960).