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Former Liberal attorney to argue case before SCOTUS in Oct. PDF Print E-mail
Saturday, 09 August 2014 09:33

• L&T staff report


A Prairie Village and former Liberal attorney this fall will be making arguments in front of the United States Supreme Court.

Rex Sharp of Gunderson Sharp, LLP, is the counsel of record for Brandon W. Owens, the defendant in a case that was accepted by the Supreme Court in April.

The case, known as Dart Cherokee vs. Owens, examines what information a defendant looking to have his case transferred from a state court to a federal court must provide.

Sharp is slated to make oral arguments before the high court Oct. 7 — considered one of the highest honors in the legal profession.

Sharp is a well-known locally for his representation of oil and gas, beef and trucking industry clients. He is also the attorney representing former Prairie Village City Councilor David Morrison in his appeal to be reseated after being ousted by Johnson County Judge David Hauber.

One of the co-founders of Gunderson Sharp, LLP, Sharp has more than 20 years experience representing individuals and businesses in litigation matters throughout the United States.

Sharp has been appointed as lead counsel in class action matters representing clients in nationwide class actions as well as actions related to Kansas and Iowa consumers. He has substantial experience advising clients in the oil and gas, beef and trucking industries as well.

Sharp is the former assistant city attorney and city attorney of Liberal.

According to information on the Supreme Court’s blog page, Dart Cherokee Basin Operating Company LLC and Cherokee Basin Pipeline LLC, represented by Sharp and fellow attorney David E. Sharp, also of Gunderson Sharp, had filed a class action petition in district court.

The information stated when the group took the petition to a state court, the petition was “not removable” on its face because it stated no amount in controversy, and petitioners wanted to remove the case anyway.

This, according to the Supreme Court blog, offered the question of whether the district court was correct in requiring petitioners, who possessed all of the evidence to prove the amount in controversy at the time of removal, to present at least some evidence that the statutorily-required amount in controversy was met with its notice of removal.

The question also asked if petitioners could invoke federal court machinery with only a conclusion statement of the amount in controversy and offer evidence later.

In the statement of the Supreme Court case, the petition did not state an amount in controversy because only Dart possessed the royalty owner paychecks, and confidential third party gas contracts needed to calculate classwide damages.

In a conclusory statement of a notice of removal, Dart said the amount in controversy is “in excess of $8.2 million.”

The case statement went on to say that the notice of removal offered no evidence to support a “naked allegation” of that amount. Dart then answered and moved to dismiss, and within 10 days of removal, Brandon W. Owens, the other party represented in the Supreme Court case, moved to remand.

According to the blog, Dart then suggested mediation, and the following month, the company began providing some damages information to Owens. Months later, after mediation failed, Dart filed an 11-paragraph declaration that showed Dart had evidence of the amount in controversy available to it at the time of removal.

The district court later remanded, concluding “the general and conclusory allegations of the petition and notice of removal do not establish by a preponderance of the evidence that the amount in controversy exceeds $5 million.”

The 10th Circuit Court of Appeals later heard the case and denied Dart’s petition for permission to appeal the remand order and for rehearing.

In the Supreme Court case, the statement of the case said Dart is asking the court to “rescue them from their failure to timely offer any evidence of jurisdictional facts.”

In a summary of the argument filed with a brief for Owens, Dart did not comply with U.S. statute, and the company had all the damages evidence. Dart, therefore could not and did not allege an amount in controversy.

In the Supreme Court case, Dart is also asking to rewrite the removal statute to “overcome its mistake.”

“Realizing its mistake, probably when plaintiff moved to remand, Dart suggested mediation to stay the case,” the summary read. “After mediation failed, Dart finally submitted the evidence of the amount in controversy that it had all along.”

The summary went on to say the submission was untimely, and the district court remanded, which the 10th Circuit allowed to stand.

The summary then argues that Dart’s “justifications” for changing the removal statute are not the law, and that, as written, the removal statute is “simple to apply and does not encourage wasteful jurisdictional litigation.”

“The removal statute preserves a defendant’s right to dislodge a plaintiff’s choice of forum with a preponderance of evidence,” the summary said. “Its language and intent is for jurisdictional discovery to take place in state court, not in federal court.”

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