Romeo et al v. Antero Resources Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKLIN ROMEO et al.,
Plaintiffs,
v. 	CIVIL NO. 1:17-CV-88
(KLEEH)
ANTERO RESOURCES CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING CLASS MEMBERS’
MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
Pending is the Class Members’ Motion for Summary Judgment on
Their 	Breach 	of 	Contract 	Claims 	[ECF 	No. 	439]. 	For 	the 	reasons
discussed herein, the motion is DENIED. 	For good cause, the Class
Members’ 	Motion 	to 	Add 	Four 	Class 	Leases 	as 	Exhibits 	to 	Their
Motion 	for 	Partial 	Summary 	Judgment 	on 	Their 	Breach 	of 	Contract
Claims is DENIED AS MOOT [ECF No. 471].
I. 	PROCEDURAL HISTORY
On 	October 	2, 	2017, 	the 	plaintiffs, 	Jacklin 	Romeo, 	Susan 	S.
Rine, 	and 	Debra 	Snyder 	Miller, 	individually 	and 	on 	behalf 	of 	all
others similarly situated (together, “Plaintiffs”), filed a second
amended 	class 	action 	complaint, 	asserting 	one 	breach 	of 	contract
claim 	against 	the 	Defendant, 	Antero 	Resources 	Corporation
(“Antero”). 	See ECF No. 31. 	On September 19, 2018, Antero filed
an answer. 	See ECF No. 39. 	On March 23, 2020, this Court certified
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ROMEO V. ANTERO 	1:17-CV-88
MEMORANDUM OPINION AND ORDER DENYING CLASS MEMBERS’
MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
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the 	proposed 	class. 	See 	ECF 	No. 	152. 	Specifically, 	the 	Court
defined the class as follows:
Persons 	and 	entities, 	including 	their
respective 	successors 	and 	assigns, 	to 	whom
Antero 	has 	paid 	royalties 	(“Royalties”) 	on
Natural 	Gas, 	including 	natural 	gas 	liquids,
produced by Antero from wells located in West
Virginia 	at 	any 	time 	since 	January 	1, 	2009,
pursuant to Leases which contain either of the
following gas royalty provisions: (a) [Lessee]
covenants and agrees “to pay monthly Lessors’
proportionate share of the one-eighth (1/8) of
the value at the well of the gas from each and
every 	gas 	well 	drilled 	on 	said 	premises, 	the
product 	from 	which 	is 	marketed 	and 	used 	off
the 	premises, 	said 	gas 	to 	be 	measured 	at 	a
meter 	set 	on 	the 	farm”; 	or 	(b) 	“Lessee
covenants and agrees to pay Lessor as royalty
for 	the 	native 	gas 	from 	each 	and 	every 	well
drilled on said premised producing native gas,
as 	amount 	equal 	to 	one-eighth 	(1/8) 	of 	the
gross 	proceeds 	received 	from 	the 	sale 	of 	the
same 	at 	the 	prevailing 	price 	for 	gas 	sold 	at
the 	well, 	for 	all 	native 	gas 	saved 	and
marketed 	from 	the 	said 	premises, 	payable
quarterly.” 	The Class excludes: (1) agencies,
departments, 	or 	instrumentalities 	of 	the
United States of America; (2) publicly traded
oil 	and 	gas 	exploration 	companies; 	(3) 	any
person 	who 	is 	or 	has 	been 	a 	working 	interest
owner 	in 	a 	well 	produced 	by 	Antero 	in 	West
Virginia; and (4) Antero.
Id. 	at 	42-43. 	The 	Court 	further 	excluded 	“any 	royalty 	interest
owner 	who 	has 	never 	had 	their 	royalty 	payments 	reduced 	by 	Antero
for 	their 	related 	share 	of 	post-production 	expenses” 	and 	“any
person 	involved 	in 	related 	litigation, 	pursuing 	the 	same 	claim,
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MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
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against 	the 	same 	defendant 	based 	on 	the 	same 	facts 	and
circumstances.” 	Id. at 43.
On 	June 	11, 	2025, 	the 	Supreme 	Court 	of 	Appeals 	of 	West
Virginia 	answered 	certified 	questions. 	See 	Romeo 	v. 	Antero 	Res.
Corp, 	917 	S.E.2d 	26 	(W. 	Va. 	June 	11, 	2025). 	After 	the 	parties
could 	not 	agree 	on 	a 	schedule 	to 	govern 	the 	case 	moving 	forward,
the 	Court 	entered 	a 	schedule 	on 	July 	30, 	2025. 	See 	ECF 	No. 	436.
Plaintiffs 	filed 	a 	motion 	for 	summary 	judgment 	with 	respect 	to
their 	breach 	of 	contract 	claim. 	The 	motion 	is 	fully 	briefed 	and
ripe for review.
II. 	STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	if 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
on 	file, 	together 	with 	the 	affidavits, 	if 	any, 	which 	it 	believes
demonstrate 	the 	absence 	of 	a 	genuine 	issue 	of 	material 	fact.”
Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986) 	(internal
quotation marks omitted). 	The burden then shifts to the nonmoving
party 	to 	present 	“specific 	facts 	showing 	that 	there 	is 	a 	genuine
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MEMORANDUM OPINION AND ORDER DENYING CLASS MEMBERS’
MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
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issue 	for 	trial.” 	Blair 	v. 	Defender 	Servs., 	Inc., 	386 	F.3d 	623,
625 (4th Cir. 2004) (citations omitted).
“When 	the 	moving 	party 	has 	carried 	its 	burden . . . , its
opponent 	must 	do 	more 	than 	simply 	show 	that 	there 	is 	some
metaphysical 	doubt 	as 	to 	the 	material 	facts.” 	Matsushita 	Elec.
Indus. 	Co., 	Ltd. 	v. 	Zenith 	Radio 	Corp., 	475 	U.S. 	574, 	586 	(1986)
(citations 	omitted). 	Rather, 	the 	Court 	must 	ask 	“whether 	the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as 	a 	matter 	of 	law.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S.
242, 	251–52 	(1986). 	At 	its 	core, 	the 	summary-judgment 	process
examines 	whether 	a 	trial 	is 	needed. 	See 	id. 	at 	250. 	“Where 	the
record taken as a whole could not lead a rational trier of fact to
find 	for 	the 	non-moving 	party, 	there 	is 	no 	genuine 	issue 	for
trial.” 	Matsushita, 	475 	U.S. 	at 	587 	(citation 	and 	internal
quotation marks omitted).
III. DISCUSSION
Plaintiffs have moved for summary judgment on their breach of
contract claim. 	Under West Virginia law, “[a] claim for breach of
contract 	requires 	proof 	of 	the 	formation 	of 	a 	contract, 	a 	breach
of the terms of that contract, and resulting damages.” 	Birchfield
v. 	Zen’s 	Dev., 	LLC, 	857 	S.E.2d 	422, 	430 	(W. 	Va. 	2021) 	(citation
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omitted). 	In order to establish the third element of their breach
of 	contract 	claim 	(that 	they 	suffered 	damages), 	Plaintiffs 	rely
solely on their expert Don Phend’s fifth supplemental report. 	See
Report, 	ECF 	No. 	439-34. 	Phend 	calculated 	a 	portion 	of 	the 	class
members’ royalty underpayments for December 2009 through February
2021. 	He 	calculated 	the 	monthly 	amount 	of 	royalties 	that 	Antero
should 	have 	paid 	to 	the 	class 	members 	if 	Antero 	had 	paid 	them
royalties based upon the prices Antero (or its agent) received at
the 	point 	of 	its 	sales 	of 	residue 	gas 	and 	natural 	gas 	liquids
obtained 	from 	the 	class 	wells, 	and 	then 	subtracted 	the 	monetary
amount 	of 	monthly 	royalties 	which 	Antero 	did 	pay 	to 	each 	Class
member.
Antero 	opposes 	the 	motion, 	arguing 	first 	and 	foremost 	that
under Rule 56(d) of the Federal Rules of Civil Procedure, the Court
should 	not 	consider 	Phend’s 	fifth 	supplemental 	report 	because
Antero 	did 	not 	receive 	it 	until 	it 	was 	filed 	contemporaneously
with 	Plaintiffs’ 	summary 	judgment 	motion. 	The 	Court 	agrees 	with
Antero 	on 	this 	issue 	and 	need 	not 	address 	the 	remainder 	of
Plaintiffs’ motion or Antero’s response.
Rule 56(d) provides,
If 	a 	nonmovant 	shows 	by 	affidavit 	or
declaration 	that, 	for 	specified 	reasons, 	it
cannot present facts essential to justify its
opposition, the court may:
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MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
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(1) 	defer considering the motion or deny it;
(2) 	allow 	time 	to 	obtain 	affidavits 	or
declarations or to take discovery; or
(3) 	issue any other appropriate order.
Antero 	attaches 	a 	declaration 	from 	Kris 	Terry 	stating 	the
following:
I 	have 	not 	been 	given 	an 	opportunity 	to
respond 	to 	and 	address 	Mr. 	Phend’s 	Fifth
Supplemental Report, and it was only provided
contemporaneously with Plaintiffs’ Motion for
Partial Summary Judgment. 	Nor has Antero had
the opportunity to cross-examine Mr. Phend on
his 	Fifth 	Supplemental 	Report 	such 	that 	I
could consider Mr. Phend’s testimony regarding
his 	underlying 	methodology 	and 	other 	steps
taken to “adjust” his previous calculations.
Terry Decl., ECF No. 444-2, at ¶ 9. 	Given Antero’s representations
about 	the 	lack 	of 	opportunity 	to 	cross-examine 	Phend 	about 	the
Fifth 	Supplemental 	Report 	or 	investigate 	the 	report 	prior 	to 	the
motion’s 	filing, 	the 	Court 	finds 	that 	granting 	summary 	judgment
would be inappropriate under Rule 56(d). 	The Court, at this stage,
cannot 	find 	that 	there 	is 	no 	genuine 	issue 	of 	material 	fact 	with
respect 	to 	the 	existence 	of 	damages. 	Accordingly, 	Plaintiffs’
summary 	judgment 	motion 	with 	respect 	to 	their 	breach 	of 	contract
claim is DENIED.
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MEMORANDUM OPINION AND ORDER DENYING CLASS MEMBERS’
MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 439, 482]
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IV. 	CONCLUSION
For 	the 	reasons 	discussed 	above, 	the 	Class 	Members’ 	Motion
for 	Summary 	Judgment 	on 	Their 	Breach 	of 	Contract 	Claims 	[ECF 	No.
439] is DENIED. 	Because the summary judgment motion on liability
is denied, the Class Members’ Motion for Partial Summary Judgment
Regarding 	the 	Principal 	Amount 	of 	Their 	Damages 	[ECF 	No. 	482] 	is
also DENIED.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: March 31, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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