Wallen v. Tauren Exploration, Inc. (In re Cubic Energy, Inc.)
Wallen v. Tauren Exploration, Inc. (In re Cubic Energy, Inc.)
Opinion of the Court
*746INTRODUCTION
The oil and gas industry has long been a magnet for adventurers and businesses hoping to ride the wave of an oil boom. Sadly for some, their aspirations did not pan out and their ventures succumbed to the industry's boom-or-bust cycle. Before the Court is a motion related to successive bankruptcies stemming from such events.
A reorganized debtor's purported representative and former CEO are suing the liquidating trust of debtor's erstwhile equity holder and business partner. They allege that a release in the debtor's plan of reorganization bars the claims that the liquidating trust is pursuing against them in the Northern District of Texas. The liquidating trust asserts that the matter is not ripe and moves to dismiss on Rule 12(b)(1) and Rule 12(b)(6) grounds. It writes that the matter is not ripe because the complaint is asking for an advisory opinion and further insists that a final order is required before any court can rule on the complaint. In the alternative, the trust also moves for permissive abstention and venue transfer to the Northern District of Texas.
Typically, ripeness is a question of justiciability and appropriate for resolution under 12(b)(1). But when it is intertwined with substantive issues, 12(b)(6) applies. Because here the question of whether a final order's absence precludes ripeness is entangled with the issue of whether a final order is necessary, the Court proceeds with 12(b)(6). It finds that the complaint has put forth a plausible case for relief. To the extent that ripeness arguments may stand separately, the Court holds that the complaint satisfies this Circuit's ripeness test. Moreover, the Court finds that the interests of justice do not counsel it to abstain from or transfer a matter about the interpretation of its own plan. It accordingly denies the motion in its entirety.
JURISDICTION & VENUE
This Court has jurisdiction over this matter pursuant to
PROCEDURAL BACKGROUND
Before the Court is a motion ("Motion") to dismiss, abstain, or transfer the venue of a complaint affecting two bankruptcies, one in Texas and one in Delaware.
*747On December 11, 2015, Cubic Energy, Inc. ("Cubic Energy") filed for Chapter 11 in this Court. On February 17, 2016, this Court issued an order approving debtor Cubic Energy's third amended plan of reorganization ("Cubic Order" and "Cubic Plan" or "Plan").
Accordingly, Plaintiffs' complaint ("Complaint") demands declaratory and injunctive relief. Defendants respond that the Release requires the issuance of a final order determining that certain acts constitute willful misconduct, gross negligence, or fraud before the Complaint can be brought. And they note that no such order exists here. Moreover, they argue that a ruling would constitute an impermissible advisory opinion.
Defendants thus contend that the Complaint is not ripe and Delaware is not the appropriate place for this dispute. As such, they move to 1) dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6), 2) transfer the venue to Texas, 3) have the Court abstain from ruling on the issues pending before the Texas Bankruptcy Court.
STATEMENT OF FACTS
Before their finances went awry and their relationship soured, Tauren and Cubic Energy were business partners.
In 2004, Gloria's Ranch granted a three-year oil and gas lease in Louisiana to Tauren, which assigned 49% of its interest to Cubic Energy.
Fossil operated this lease and others in the area.
*749More trouble followed. In 2010, Gloria's Ranch alleged that the lease had expired due to a lack of production in paying quantities and demanded that Cubic Energy, Exco, and Tauren release the lease. The three parties refused and Gloria's Ranch sued to kick them out. The Louisiana court sided with Gloria's Ranch and ruled that Cubic Energy and Tauren were jointly and severally liable for $24 million.
In the meantime, facing mounting problems, Cubic Energy and Tauren filed for bankruptcy within months of one another. Cubic Energy filed in this Court, which approved a confirmation plan with release provisions.
Sensing that their former ally was about to sue them, Wallen and Fossil filed the Enforcement Motion asking this Court to enjoin Tauren's trustee from doing so. They contended that Tauren released its rights to sue them in the Cubic Plan.
ANALYSIS
A. DISMISSAL
1. Fed. R. Civ. P. 12
Fed. R. Civ. P. 12 provides numerous pathways for courts and litigants to dismiss suits. This opinion concerns two of those routes: 12(b)(1) and 12(b)(6). A 12(b)(1) motion is used to dismiss for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. These rules are born of different concerns and their distinct procedures reflect their divergent considerations. 12(b)(1) motions are motivated by the need to assure that courts are competent to decide the matter before them. They function to ensure that courts stay within their constitutional and statutory lanes and do not rule on matters not entrusted to them. While 12(b)(6) motions are animated by a desire to spare courts the trouble and expense of presiding over cases where the plaintiff does not have a cognizable basis for relief.
i. Fed. R. Civ. P. 12(b)(1)
12(b)(1)'s standard for surviving dismissal is lower than 12(b)(6)'s.
*750Plaintiff must show that the court has jurisdiction.
ii. Fed. R. Civ. P. 12(b)(6)
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "
iii. 12(b)(6) is the appropriate vehicle where substantive and jurisdictional issues are intertwined.
When jurisdictional and substantive issues are intertwined, the court should find that jurisdiction exists and employ the 12(b)(6) rubric.
2. Ripeness
The Third Circuit's tripartite ripeness test requires the consideration of: the adversity of interest between parties, the conclusiveness of the declaratory judgment, and the practical utility of the declaratory judgment.
3. The parties spar over the meaning of the Release.
The Release waives all claims and liabilities "existing and hereafter arising...other than claims or liabilities arising out of or relating to any act or omission of a released party to the extent such act or omission is determined by a final order to have constituted willful misconduct, gross negligence, or fraud." This exception is broader than claims of fraud, and encompasses even claims relating to or arising from fraud. (Though the language does not say how close the relation must be.) The Court has not been briefed on whether any counts in the Texas Adversary Proceedings relate to or arise from acts constituting fraud, gross negligence, or willful misconduct, such that they may fall into the Release. (Though parties appear to differ on whether the Release exempts constructive fraud. Defendants say *751that constructive fraud is exempt.
As noted, parties are split on whether a final order is needed for allegations to be exempt from the Release.
Defendants argue that the Release's language requires a final order determining whether the claims relate to acts constituting willful misconduct, gross negligence, or fraud.
There is also the matter of which parties are bound by the Plan. Section 1.106 and 1.107 govern who are the Released Parties and who are the Releasing Parties.
Under § 1.106,
" "Released Parties" means (a) the Debtors and Reorganized Debtors, (b)...equity holders...and other professional representatives of the Debtors and the Reorganized Debtors, in their capacities as such; ... (f) with respect to each Entity name in the preceding (a) through (e), each such Entity's directors, officers, ...equity holders,...controlling persons, ... and other professionals or representatives when acting in any such capacities."
And under § 1.107,
" "Releasing Parties" means (d) each Holder of a Claim that (i) affirmatively votes to accept the Plan or (ii) either (A) abstains from voting or (B) votes to reject the Plan, and in case of either (A) or (B), does not opt out of the releases by Holders of Claims in compliance with the instructions set forth in the Solicitation Materials. Any Holder of Claims or interests solely in Classes that are deemed to reject the Plan shall not be a Releasing Party unless such Holder (x) has agreed otherwise in writing or (y) is a Released Party."
Defendants aver that Wallen and Fossil have not pled that they are Released Parties under the Plan. They scoff that Fossil's position that it is Cubic Energy's representative is merely "self-characterized."
4. It is plausible that Wallen and Fossil are Released Parties and Tauren is a Releasing Party under the Plan.
This opinion now turns to whether the Wallen and Fossil are Released Parties and Tauren is a Releasing Party under the Plan.
Fossil and Wallen argue that they are Released Parties because Wallen was an equity-holder and CEO of Cubic Energy and Fossil a representative of reorganized Cubic Energy.
Plaintiffs have plausibly alleged that Wallen is a Released Party. Tauren, as Cubic Energy's pre-petition equity holder, is a Released Party under § 1.106 of the Plan. § 1.106(f) releases Tauren's equity holders, as well as the equity holders of Cubic Energy's representatives when acting in their capacities as such. Wallen was Tauren's president and sole shareholder as of Cubic Energy's petition date.
This opinion now turns to Plaintiffs' claim that Fossil was a representative during its alleged wrongdoing.
*753The evidence proffered is strong enough to plausibly allege that Wallen and Fossil are Released Parties.
Likewise, Tauren is plausibly a Releasing Party. Under the Plan, interest-holders deemed to reject the Plan are Releasing Parties if they are also Released Parties.
5. It is plausible that the Release does not require a final order in this circumstance.
Finally, this opinion turns to the scope of the Release. The Release appears to extinguish nearly all claims except those related to or arising from fraud, willful misconduct, and gross negligence. However, the Release also appears to require a final order, whose mechanism it does not explain. Several questions about the final order remain. For example, is a final order necessary only to benefit from the exception; can a party invoke the Release without a final order? (Requiring a final order to dismiss all claims, even those unrelated to fraud, threatens to eviscerate the Release.) Would a prohibition on pursuing fraud-related claims without final orders allow entities to seek final orders finding that their claims are tied to fraud? (If not, this could effectively block claims even Plaintiffs concede are permissible.
This Court does not have targeted briefing on the issue of the Release's interpretation, including the role of a final order. Nor does it have briefings concerning the nature of the claims in the Texas Adversary Proceedings that Plaintiffs seek to enjoin. Consequently, the Court does not know whether these claims arise from or relate to fraud, gross negligence, and willful misconduct and, thus, may fall into the Release's exception. In sum, because of the ambiguity surrounding the Release, it is plausible that it is does not require a final order in this circumstance. The Complaint withstands the 12(b)(6) challenge.
6. The matter is ripe; its adjudication would not result in an impermissible advisory opinion.
This section turns to the events affecting the ripeness of the Complaint and Plaintiffs' contention that the matter is not ripe. The filing of the Texas Adversary Proceedings and the addition of Defendants as plaintiffs in the Gloria's Ranch litigation have transformed this case's landscape. They not only provide clear adversity, but remove the "pivotal" basis for the Enforcement Motion's denial: the uncertainty of whether the potential claims would fall under the Release.
Step-Saver articulates three ripeness components: adversity, conclusivity, and utility. Defendants argue that the Complaint fails all three.
Plaintiffs have satisfied Step-Saver's requirements.
First, interests do not get much more adverse than a lawsuit. And four lawsuits are currently pending in Texas. Even if Defendants' position on a final order is correct, the final order may affect those suits, but the parties do not lack adversity without it. Compare this with the time of the Enforcement Motion, when Plaintiffs could not point to any ongoing litigation.
Second, in their conclusivity argument, Defendants imply that it would be unfair and improper to rule on the Release's language before discovery is finished.
This contrasts with the Enforcement Motion, which did not ask the Court "to strike a provision in the Cubic Plan, prevent ongoing litigation, or force the parties to do something."
Third, the utility argument does not hold water. Defendants can not credibly *755argue that utility is lacking because the Motion could blow up the status quo by forcing discovery to end.
As the Court explained, it could not rule on a motion when there was neither an ongoing litigation nor a means for the motion to end the parties' dispute.
B. PERMISSIVE ABSTENTION
1. Permissive abstention doctrine in the Third Circuit.
The Third Circuit has identified twelve factors when considering whether permissive abstention is appropriate. These factors include the: (1) effect or lack thereof on the efficient administration of the estate, (2) extent to which state law issues predominate over bankruptcy issues, (3) difficulty or unsettled nature of the applicable state law, (4) presence of a related proceeding commenced in state court or other non-bankruptcy court, (5) jurisdictional basis, if any, other than
*756Appellate courts do not have jurisdiction over grants or denials of permissive abstention.
2. Factors do not weigh in favor of permissive abstention.
Overall, factors of administration and efficiency do not counsel for abstention. The question of docket burden is neutral, as the burden would eventually fall on some court and this Court can not ascertain the degree of burden the Texas court would suffer would this Court abstain. However, a few factors do support permissive abstention. The Cubic Plan has been confirmed. In the strictest sense, there is no longer an estate whose efficient administration may be endangered.
Nor do considerations of outside laws and proceedings weigh in favor of abstention. There are no related proceedings in state or non-bankruptcy court.
Finally, though the predominant issue does not implicate the Bankruptcy Code, it does involve the interpretation of an order that this Bankruptcy Court approved. And though the debtor in the main case is not party to the Complaint, the legal issue squarely implicates the Cubic Plan, a core matter.
The Court should not abstain from determining the meaning of its own plan.
C. VENUE TRANSFER
1. Venue transfer doctrine in the Third Circuit.
The Third Circuit has identified twelve factors that may help determine whether to transfer venue under
Plaintiffs sign on to these venue transfer factors, but Defendants rely on a California bankruptcy case with similar factors.
2. Factors do not weigh in favor of venue transfer.
The Complaint has strong ties to this jurisdiction. It revolves around the reach of a release approved by this Court. The Complaint's gravamen is that claims asserted in the Texas Adversary Proceedings have been released. Thus, wherever the claims in the Texas Adversary Proceedings may have arisen, the instant potential for their release arose under this Court's Cubic Plan. Yet most of the other factors are unclear or neutral.
For example, the public policy or judicial interests of each court as to the dispute. This Court has an interest in being the one to interpret its own plans and the Texas court likely has an interest in being the one to decide their cases' issues. As to the location of records, the Court is unaware of information concerning the location of records that can not be digitized and potential inconvenience to parties or witnesses who may have to trek to Delaware instead of Texas, or vice versa. Nor is the Court aware of the comparative burdens on each venue's docket. Factors relating to enforceability and party preferences do not appear to favor either side. There is no reason to believe that the Texas Bankruptcy Court will not honor this Court's judgment. And party preferences are a wash.
This Court approved the Cubic Plan and entered the order confirming it. Therefore, this Court has the background and knowledge to most efficiently determine the issues presented in the Complaint. It should not transfer venue.
CONCLUSION
For the foregoing reasons, the Court will deny the Motion. An Order will be entered.
Del. Bankr. 15-12500 D.I. 184 and D.I. 184-1.
Del. Bankr. D.I. 184-1, §§ 11.4-11.5. The Plan includes other released not at issue or discussed here.
Del. Bankr. 15-12500 Adv. Pro. 18-50698 D.I. 1, ¶ 3. (Unless otherwise indicated, all D.I.'s refer to this adversary proceeding.) See also Del. Bankr. 15-12500 D.I. 292-2.
Del. Bankr. 15-12500 D.I. 292-2.
In re Cubic Energy, Inc .,
D.I. 1, ¶¶ 25-28.
D.I. 1, ¶ 5.
D.I. 1, ¶¶ 25-28, 42.
D.I. 1, ¶ 15; Gloria's Ranch, L.L.C. v. Tauren Expl., Inc., 51,077 (La. App. 2 Cir. 6/2/17),
Gloria's Ranch,
D.I. 1, ¶ 15. The facts in this paragraph represent the allegations in the Complaint. Per Fed. R. Civ. P. 12(b)(6)'s standards, they are accepted as true for the purposes of this opinion. Though Defendants do not dispute them, the facts in this paragraph do not represent the Court's factual findings.
Id; Gloria's Ranch,
D.I. 1, ¶ 16.
Gloria's Ranch, L.L.C. v. Tauren Expl., Inc ., 2017-1518 (La. 9/7/18),
Del. Bankr. 15-12500 D.I. 292.
Gould Elecs. Inc. v. United States ,
Kehr Packages, Inc. v. Fidelcor, Inc .,
Kulick v. Pocono Downs Racing Ass'n ,
Gould ,
Ashcroft v. Iqbal ,
Davis v. Wells Fargo ,
Kulick,
See e.g. Sun Valley Gasoline, Inc. v. Ernst Enters., Inc .,
D.I. 13, ¶¶ 39-49.
However, the Court can and does rule on Plaintiffs' related advisory opinion argument that the lack of adversity, conclusivity, and utility doom the Complaint.
Step-Saver Data Sys., Inc. v. Wyse Technology ,
D.I. 13, ¶ 41.
D.I. 13, ¶ 39.
Id .
D.I. 21, ¶ 10.
D.I. 21, ¶¶ 9-10.
D.I. 13, ¶ 84.
D.I. 13, ¶¶ 50-54.
See D.I. 1 and Del. Bankr. 15-12500 D.I. 292.
Del. Bankr. 15-12500 D.I. 184-1, § 1.106.
Del. Bankr. 15-12500 D.I. 292-2.
D.I. 1, ¶ 17.
D.I. 1, ¶¶ 25-28.
Del. Bankr. 15-12500 D.I. 13, ¶ 9.
Del. Bankr. 15-12500 D.I. 292, ¶ 28; see also Del. Bankr. 15-12500 D.I. 184-1, §§ 1.87-1.88; Del. Bankr. 15-12500 D.I. 14-2 and D.I. 191-2.
Del. Bankr. 15-12500 D.I. 31-1, p. 23; Del. Bankr. 15-12500 D.I. 184-1, §§ 1.87-1.88.
The start and end dates of Fossil acting as Debtors' representative are not clear.
Del. Bankr. 15-12500 D.I. 31-1, p. 23.
Del. Bankr. 15-12500 D.I. 184-1, § 1.106.
Tauren has also not denied that it is a Releasing Party, even though that would have put a swifter end to this controversy.
Del. Bankr. 15-12500 D.I. 326 (Tr. 13:10-12, Jul. 10, 2017) ("[M]ovants recognize that the Cubic Plan does not release claims for actual fraud, gross negligence, or willful misconduct"); Del. Bankr. 15-12500 D.I. 319, p.3 fn.5.
Cubic Energy,
Del. Bankr. 15-12500 D.I. 292, ¶ 3.
D.I. 13, ¶¶ 44-48.
D.I. 22, ¶ 4.
Step-Saver ,
D.I. 1, ¶ 42, referencing claims concerning constructive fraudulent transfer, avoidance of preference transfer, and veil-piercing for fraud. These claims are made under both Bankruptcy and state law. Plaintiffs do not seek to enjoin all of the counts in the Texas Adversary Proceedings.
Cubic Energy ,
Cubic Energy ,
Cubic Energy,
D.I. 13, ¶¶ 46-49.
Step-Saver ,
Cubic Energy ,
N.J. Dept. of Envtl. Protection v. Occidental Chem. Corp. (In re Maxus Energy Corp.),
LaRoche Indus., Inc. v. Orica Nitrogen LLC (In re LaRoche Indus., Inc.),
D.I. 13, ¶ 57; D.I. 21, ¶ 28.
In re Seven Fields Dev. Corp .,
In re Holiday RV Superstores, Inc .,
In re Resorts Int'l, Inc .,
Jumara v. State Farm Ins. Co .,
D.I. 21, ¶ 44; D.I. 13, ¶ 79.
Reference
- Full Case Name
- IN RE CUBIC ENERGY, INC., Debtors. Calvin A. Wallen, III and Fossil Operating, Inc. v. Tauren Exploration, Inc. and Tauren Exploration, Inc. Liquidating Trust
- Cited By
- 1 case
- Status
- Published