United States District Court, E.D. Arkansas, Eastern Division
STEPHANIE DEVAZIER, as class representative in Sara Stewmon vs. SEECO, Inc., Desoto Gathering Company, LLC and Southwestern Midstream PLAINTIFF
BEN H. CARUTH, et al.. DEFENDANTS
AMENDED OPINION AND ORDER 
Kristine G. Baker United States District Judge
Stephanie Devazier is the appointed class representative of a
state class action (“Stewmon”) that is
pending before the Arkansas Supreme Court (Dkt. No. 59, at
2). See SEECO, Inc. v. Stewmon, CV-15-198 (Ark.
filed Mar. 11, 2015). Defendants are counsel for both the
plaintiff (“Smith Class Counsel”) and
defendants (“Smith Defense Counsel”) in
Smith v. SEECO, Inc., et al., 4:14-cv-435, a federal
class action that is currently pending before the Honorable
Brian S. Miller of the United States District Court for the
Eastern District of Arkansas. On April 11, 2016, Judge Miller
entered an order granting Smith Class
Counsel’s second motion for class certification and
directed Smith Class Counsel to submit a proposed
class notice plan within 30 days. By this action, Ms.
Devazier seeks to enjoin Smith Class Counsel and
Smith Defense Counsel from communicating directly
with any members of the class she purportedly represents,
including through Court-approved class notice, which is
required under Rule 23 of the Federal Rules of Civil
Procedure. Ms. Devazier also requests that the Court order
that “any communication involving any of the
[Stewmon class] be sent only to their duly appointed
class counsel, E. Dion Wilson, B. Michael Easley and Timothy
R. Holton, or in the alternative, with the express consent of
their appointed counsel” (Dkt. No. 52, at 20).
pending before the Court are Ms. Devazier’s emergency
motion for preliminary injunction, Smith Class
Counsel’s motion to dismiss, Smith Defense
Counsel’s motion to dismiss for lack of standing and
failure to state a claim, Smith Defense
Counsel’s renewed motion to dismiss for lack of
standing and failure to state a claim, and Smith
Class Counsel’s renewed motion to dismiss (Dkt. Nos. 6;
33; 41; 55; 58). For the following reasons, the Court
grants Smith Defense Counsel’s renewed motion
to dismiss for lack of standing and failure to state a claim
and Smith Class Counsel’s renewed motion to
dismiss for lack of standing and failure to state a claim
(Dkt. Nos. 55; 58). All other pending motions are denied as
moot. Ms. Devazier’s complaint is dismissed.
otherwise noted, the following information is taken from the
memorandum of law in support of Smith Defense
Counsel’s renewed motion to dismiss for lack of
standing and failure to state a claim (Dkt. No. 56). In
recent years, oil and gas royalty owners have filed multiple
class action lawsuits against Southwestern Energy Company and
its affiliates for the alleged underpayment of royalties. In
2014, separate Arkansas state courts certified classes in two
of these lawsuits: (1) Snow v. SEECO, Inc., et al.,
which consisted of “Arkansas citizens with particular
oil and gas leases[;]” and (2) Stewmon v.
SEECO, Inc., et al., which consisted of
“Arkansas residents with the same leases to which no
party to the lease is a non-Arkansas resident” (Dkt.
No. 56, at 4). Ms. Devazier is the class representative, and
her counsel in this matter is class counsel for the
Stewmon class. The class certification orders in
Snow and Stewmon were appealed, and the
appeal remains pending before the Arkansas Supreme Court.
Class notice in both Snow and Stewmon has
yet to be approved or sent to potential class members.
25, 2014, Connie Jean Smith, who is not represented by the
same counsel as Ms. Devazier, filed a federal class action
suit in the Eastern District of Arkansas. Ms. Smith initially
sought to certify “a ‘leftovers’ class of
all royalty owners but the members of the state court
Snow and Stewmon classes” (Dkt. No.
56, at 4). Her initial request was denied after the Court
found that the class was not ascertainable under Rule 23(a).
Ms. Smith later moved for “certification of a class of
SEECO cost-bearing royalty owners lacking an Arkansas address
or, alternatively, a broader class of all costbearing royalty
owners” (Dkt. No. 56, at 5). On April 11, 2016, Judge
Miller certified the broader class, named Ms. Smith as class
representative, and appointed her lawyers as class counsel.
Judge Miller acknowledged that “adopting this broader
definition overlaps this case’s affiliate cases in
Snow and Stewmon, which some scholars have
cautioned against.” Smith v. SEECO, Inc., et
al., 4:14-cv-435 (E.D. Ark. Apr. 11, 2016) (order
granting class certification). However, Judge Miller
preferred certifying the broader class, finding that
excluding royalty owners to avoid overlap with Snow
and Stewmon would have “serious practical
effects that cannot be understated” and would
“promote the potential for inconsistent judgments and
undercut the very purpose of the class action.”
April 26, 2016, Ms. Devazier filed this action in the Circuit
Court of St. Francis County, Arkansas (Dkt. No. 1, at 1).
Smith Defense Counsel removed the case to this Court
on April 28, 2016 (Dkt. No. 1, at 1). After Smith
Class Counsel and Smith Defense Counsel filed
separate motions to dismiss, Ms. Devazier filed an amended
complaint in which she alleges that the defendants have acted
improperly in this and other unrelated actions (Dkt. No. 52).
this action was pending, counsel for Ms. Devazier, acting on
behalf of an alleged Smith class member, attempted
to intervene in Smith v. SEECO, Inc. to challenge
the adequacy of Smith Class Counsel and the proposed
notice plan. Judge Miller denied the motions, finding that
intervention was either unnecessary or premature. Smith
v. SEECO, Inc., et al., 4:14-cv-435 (E.D. Ark. June 3,
2016) (order denying motions to intervene without prejudice).
Ms. Devazier’s counsel filed an interlocutory appeal of
Judge Miller’s Order as well as a motion to stay
Smith pending appeal.
preliminary matter, the Court must determine whether it has
subject matter jurisdiction over this action. Defendants, who
removed this case from state court, bear the burden of
proving that the jurisdictional threshold is satisfied.
Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.
2009). In their notice of removal and in subsequent filings,
defendants argue that the Court has jurisdiction pursuant to
the Federal Officer Removal Statute, 28 U.S.C. § 1442
(Dkt. Nos. 1; 50; 51). The Federal Officer Removal Statute
(a) A civil action or criminal prosecution that is commenced
in a State court and that is against or directed to any of
the following may be removed by them to the district court of
the United States for the district and division embracing the
place wherein it is pending:
(1) The United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or individual
capacity, for or relating to any act under color of such
office or on account of any right, title or authority claimed
under any Act of Congress for the apprehension or punishment
of criminals or the collection of the revenue. . . .
(3) Any officer of the courts of the United States, for or
relating to any act under color of office or in the
performance of his duties[.]
28 U.S.C. § 1442. Defendants, who are all private
attorneys, do not contend that they are federal officials for
the purposes of this action, but rather they contend that
they “are persons acting under an officer of the United
States, in an official or individual capacity, for or
relating to any act under color of such office[, ]”
making this case removable under § 1442(a)(1) (Dkt. No.
1; ¶ 5). The federal official they identify is Judge
Miller, who has directed defendants to “prepare notices
to be sent to members of the class certified in Smith
v. SEECO” (Dkt. No. 1; ¶ 5). At the
Court’s hearing on this matter, Ms. Devazier confirmed
that she did not take a position as to whether the Court has
subject matter jurisdiction over this case.
Federal District Judge As An Officer Of The United States For
The Purposes Of 28 U.S.C. § 1442(a)(1)
Court must first determine whether an officer of the courts
of the United States can be treated as an officer for the
purposes of § 1442(a)(1). Section 1442(a) has four
subparts, two of which are relevant to this action. Under
subsection (a)(1), cases are removable if brought against
“any officer (or any person acting under that
officer) of the United States or of any agency thereof .
. . for or relating to any act under color of such
office.” 28 U.S.C. § 1442(a)(1) (emphasis added).
Subsection (a)(3) provides that cases are removable if
brought against “[a]ny officer of the courts of the
United States, for or relating to any act under color of
office or in the performance of his duties[.]” Unlike
subsection (a)(1), subsection (a)(3) does not provide that
cases are removable if brought against any person acting
under an officer of the Court. The defendants, who are
private attorneys, do not qualify as officers of the Court
for the purposes of § 1442(a)(3). State of Fla. v.
Shimek, 356 F.Supp. 687, 688 (N.D. Fla. 1973) (finding
that a private attorney admitted to practice in federal court
was not an officer of the court for the purposes of §
1442); see also Cammer v. United States, 350 U.S.
399, 405 (1956) (recognizing that, while private attorneys
are often called ...