Williams v. Writer

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

RICHARD WILLIAMS, et al. PLAINTIFFS

V. CASE NO. 3:24-CV-3046

DAVID WRITER, in his Official Capacity;

CARROLL COUNTY, ARKANSAS; and

NIMBUS WIND FARM, LLC DEFENDANTS

MEMORANDUM OPINION AND ORDER

Now before the Court is Plaintiffs’ Motion to Remand (Doc. 15). Defendant Nimbus

Wind Farm, LLC, filed a Response (Doc. 17), and Plaintiffs filed a Reply (Doc. 20). For

the reasons that follow, the Motion to Remand (Doc. 15) is GRANTED IN PART AND

DENIED IN PART.

I. INTRODUCTION

This case concerns a contract between Nimbus Wind Farm, LLC, and Carroll

County, Arkansas. Nimbus plans to build thirty wind turbines in Carroll County. On

September 25, 2024, Nimbus and Carroll County entered a “Road Use and Maintenance

Agreement” (the “Agreement”) which was signed on behalf of Carroll County by County

Judge David Writer. The Agreement gives Nimbus certain rights and powers related to

public roads, including the right to use County rights-of-way for the benefit of the project.

Plaintiffs own property in the Eastern District of Carroll County, (Doc. 3, ¶ 1); they believe

that the wind turbines will “degrade[ ]” their “rural lifestyle” and the “natural beauty” of

Carroll County, id. at p. 3–4, so they bring twelve challenges to the legality of the

Agreement and seek declaratory and injunctive relief to prevent Nimbus and the County

from acting according to its terms.

Plaintiffs originally filed this litigation on October 1, 2024, in the Circuit Court of

Carroll County, Arkansas. See Doc. 3. Nimbus was served on October 7 and filed a notice

of removal to this Court on November 4, asserting federal question and Class Action

Fairness Act (“CAFA”) jurisdiction. See Doc. 2. Nimbus did not obtain the consent of its

codefendants. Id. ¶ 42. After removal, Nimbus filed a motion to dismiss for failure to state

a claim (Doc. 9) and separate defendants Carroll County and County Judge David Writer

filed a joint motion to dismiss for lack of jurisdiction and failure to state a claim (Doc. 11).

On November 24, Plaintiffs timely filed the instant Motion to Remand (Doc. 14).

II. LEGAL STANDARD

An action may be removed from state to federal court if it is one in which district

courts would have original jurisdiction. 28 U.S.C. § 1441(a). If a federal court lacks subject

matter jurisdiction over a removed action, the case must be remanded to the originating

court. See 28 U.S.C. § 1447(c). District courts have so-called federal question jurisdiction

over “all civil actions arising under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1331. Pursuant to CAFA, district courts also have jurisdiction “over certain

class actions, defined in § 1332(d)(1), if the class has more than 100 members, the parties

are minimally diverse, and the amount in controversy exceeds $5 million.” Dart Cherokee

Basin Operating Co., LLC v. Owens, 574 U.S. 81, 84–85 (2014). CAFA’s jurisdictional

grant is, however, subject to both mandatory, see § 1332(d)(4)–(5), and discretionary, see

§ 1332(d)(3), exceptions. “[I]n any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form

part of the same case or controversy . . . .” 28 U.S.C. § 1367.

“[T]he party seeking to remove a case to federal court bears the burden of

establishing federal jurisdiction.” Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822

(8th Cir. 2010). “Once CAFA's initial jurisdictional requirements have been established by

the party seeking removal, however, the burden shifts to the party seeking remand to

establish that one of CAFA's express jurisdictional exceptions applies.” Id.

The procedural requirements for removal under § 1441(a) are governed by 28

U.S.C. § 1446, but CAFA established less restrictive procedural requirements for removal

of class actions, which are codified at 28 U.S.C. § 1453. Thus, “certain limitations on

removal that might otherwise apply do not limit removal [of class actions] under

§ 1453(b).” Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 445 (2019).

III. DISCUSSION

The Court takes up the threshold issue of whether it has original jurisdiction first,

then turns to whether the procedural requirements for removal were met, and then

addresses supplemental jurisdiction over Plaintiffs’ state-law claims.

A. Original Jurisdiction

Nimbus removed the case based on federal question and CAFA jurisdiction.

Plaintiffs argue that their claims do not present a federal question and do not meet CAFA’s

jurisdictional requirements or are otherwise subject to a number of CAFA’s exceptions.

1. Federal Question Jurisdiction

With respect to federal question jurisdiction, Nimbus points to Plaintiffs’ takings

claim (Count 1) which references both the U.S. and Arkansas Constitutions and Plaintiffs’

due process claim (Count 12) which references only the U.S. Constitution. These claims

plainly “aris[e] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

1331.

Plaintiffs attempt to argue otherwise, relying on this Court’s decision in First State

Bank v. City of Elkins, 2019 WL 2150388 (W.D. Ark. May 16, 2019), where the Court

remanded Takings Clause and closely related due process claims. In that decision, the

Court relied on the Supreme Court’s since-overruled decision in Williamson County

Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985),

overruled by Knick v. Township of Scott, 588 U.S. 180 (2019). The Williamson County

Court held that, if an adequate procedure to seek compensation for the taking of private

property exists, a property owner does not have a Fifth Amendment claim unless and

“until it has used the procedure and been denied just compensation.” 473 U.S. at 194. In

Knick, the Supreme Court overruled Williamson County, holding that a plaintiff in a

Takings Clause case need not exhaust state court remedies before bringing suit in federal

court. 588 U.S. at 185. Knick controls here, and the Court, accordingly, has jurisdiction

over Plaintiffs’ takings and due process claims.

2. CAFA Jurisdiction

As to CAFA, Nimbus asserts that Plaintiffs’ illegal exaction claim under Arkansas

law (Count 11) is a class action that meets all of CAFA’s jurisdictional requirements.

Plaintiffs assert that Nimbus has not met the amount-in-controversy requirement of

greater than $5,000,000. Plaintiffs also argue that a number of CAFA’s exceptions apply.

The Eighth Circuit has held that illegal exaction claims under Arkansas law fall

within CAFA’s definition of “class actions.” Brown v. Mortg. Elec. Registration Sys., Inc.,

738 F.3d 926, 931 (8th Cir. 2013). That leaves the at-least-100-class-members, minimal-

diversity, and greater-than-$5,000,000-in-controversy requirements. Illegal exaction

claims create a class of all taxpayers impacted by an illegal tax or expenditure. Here, that

class is Carroll County taxpayers. Carroll County has a population of approximately

28,000, see Doc. 2, ¶ 17, and the Court has no trouble concluding that over 100 of its

residents pay taxes. Nimbus is a citizen of Delaware and Colorado, see id. ¶ 24, and at

least some Carroll County taxpayers are citizens of Arkansas, so the minimal diversity

requirement is also met.

There is some dispute about the burden of proving the amount in controversy.

Nimbus asserts that “[t]o contest the jurisdictional minimum, a plaintiff must submit proof

that would render the amount in controversy ‘legally impossible.’” (Doc. 17, p. 13 (quoting

Pirozzi v. Massage Envy Franchising, LLC, 938 F.3d 981, 984 (8th Cir. 2019))). Not so.

The legally impossible standard is “a pleading requirement, not a demand for proof,”

applicable “[w]hen plaintiffs have not challenged the removing defendant’s amount-in-

controversy allegations.” Id. at 984 (quoting Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th

Cir. 2008)). But where, as here, the plaintiffs do challenge the amount-in-controversy

allegations, “the removing party bears the burden of showing by a preponderance of the

evidence that the case meets [that] requirement[ ]. Failure to do so . . . results in a ticket

back to state court.” Leflar v. Target Corp., 57 F.4th 600, 603 (8th Cir. 2023) (citation

omitted) (citing Dart Cherokee, 574 U.S. at 88–89).

Plaintiffs argue that the value of the illegal exaction claim is less than $5,000,000

because they are primarily seeking injunctive and declaratory relief, and it is unlikely that

any illegal exactions for which Nimbus would have to pay damages—let alone $5,000,000

worth—occurred in the short time between the signing of the Agreement and the instant

litigation. In support, Plaintiffs point out that Nimbus agreed to only a $1,000,000

performance bond for the Agreement. (Doc. 3, p. 24, ¶ 6(e)). Plaintiffs also offer Carroll

County’s Annual Financial Report for 2023 which shows that county-wide expenditures

on highways and streets for that year totaled $4,061,691.54. (Doc. 15-1).

Nimbus argues that the amount in controversy must be determined based on the

value of the injunctive and declaratory relief. To that end, Nimbus offers the declaration of

its Chief Commercial Officer, Mark Grail, who estimates that the value of the RUMA “is

more than $5,000,000.” (Doc. 17-1, ¶ 4). To support that claim, he offers the following:

• If the RUMA is declared void or enjoined, “Nimbus will need to construct entirely

new private access roads to build the wind power project.” Id. ¶ 5. These new

roads would, naturally, cost more than $5,000,000 to build. Id.

• The project will “generate more than $14,000,000 in lease payments to Carroll

County landowners over its 30-year lifespan.” Id. ¶ 6.

• The project is “estimated to generate $25,000,000 in property tax revenue for

Carroll County over its 30-year lifespan.” Id. ¶ 7.

• The project is “expected to generate more than $5,000,000 worth of electricity

over its 30-year lifespan.” Id. ¶ 9.

• “If Nimbus is not able to complete the Carroll County wind power project due to

an injunction, it will incur more than $5,000,000 in costs due to the cancellation

of contracts to purchase wind turbines.” Id. ¶ 10.

• “Nimbus has already invested more than $5,000,000 in development and

procurement costs for the Carroll County wind project. If Nimbus is not able to

complete the project due to an injunction, it will have lost more than $5,000,000

in unrecoverable investment costs.” Id. ¶ 11.

“In actions seeking declaratory or injunctive relief, it is well established that the

amount in controversy is measured by the value of the object of the litigation.” Hunt v.

Wash. State Apple Advert. Comm'n, 432 U.S. 333, 347 (1977). But it is not clear whether

the Court can aggregate the value of all claims, including non-class claims, to meet

CAFA’s amount-in-controversy requirement. This is a relevant distinction here because

while Plaintiffs seek to void the Agreement “in its entirety” based on their twelve federal

and state law claims, see Doc. 3, ¶ 84, their single class claim for illegal exaction only

challenges “any expenditure by the County or County Judge in furtherance of the

[Agreement], including but not limited to the use of county equipment pursuant to the

terms of the [Agreement],” id. ¶ 70.

The only circuit that has addressed this question is the Ninth. In Yocupicio v. PAE

Group, LLC, 795 F.3d 1057 (9th Cir. 2015), the court held that “[w]here a plaintiff files an

action containing class claims as well as non-class claims, and the class claims do not

meet the CAFA amount-in-controversy requirement . . . the amount involved in the non-

class claims cannot be used to satisfy the CAFA jurisdictional amount.” Id. at 1062. The

court noted that CAFA directs that “‘the claims of the individual class members’ are to be

aggregated in determining the amount in controversy, but class members are those ‘who

fall within the definition of the proposed or certified class in a class action.’” Id. at 1061

(footnotes omitted) (citing 28 U.S.C. § 1332(d)(6), (d)(1)(D)). “In light of the CAFA's

detailed instructions for determining jurisdiction and aggregating class member claims

within a class action,” this Court “think[s] Congress would have similarly outlined how

courts should aggregate between” class and non-class claims “had it intended for courts

to do so.” Marple v. T-Mobile Cent. LLC, 639 F.3d 1109, 1110 (8th Cir. 2011) (refusing to

“aggregate[e] the amounts sought in separate class actions when determining whether

the matter in controversy exceeds the sum of $5,000,000”). The Court therefore refuses

to aggregate the value of claims other than Plaintiffs’ illegal exaction claim.

Thus, the Court must decide whether Nimbus has proved by a preponderance of

the evidence that the value of Plaintiffs’ illegal exaction claim and any associated

injunctive or declaratory relief could conceivably exceed $5,000,000. Mr. Grail’s

declaration does not state what, if any, expenditures the County has made or will make

pursuant to the Agreement. Indeed, in Nimbus’s brief in support of its motion to dismiss

(Doc. 10), arguing for dismissal of Plaintiffs’ illegal exaction claim, Nimbus states that “the

[Agreement] provides that Nimbus (and not the County) is responsible for expenditures

under the agreement.” Id. at p. 21. The County, for its part, agrees with Nimbus’s

characterization. See Doc. 12, p. 22. It appears we are all in agreement, then, that an

injunction preventing the County from making expenditures in furtherance of the

Agreement and damages for any pre-removal expenditures would not cost Nimbus or the

County much, certainly not $5,000,000. Because Nimbus has not met its burden of

establishing the amount in controversy by a preponderance of the evidence, the Court

does not have jurisdiction over Plaintiffs’ illegal exaction claim under CAFA. The Court

therefore does not reach the CAFA exceptions argued by Plaintiffs. The Court could still

exercise supplemental jurisdiction over this state law claim, as discussed below. See infra

Section III.C.

B. Removal Procedure

Plaintiffs also argue that removal was procedurally improper because Nimbus’s

codefendants did not consent. Nimbus responds that this case is a class action so

unanimous consent to removal is not required under CAFA.

Section 1453, CAFA’s removal provision, exempts class actions from some of the

generally applicable restrictions on removal: “the 1-year limitation under section

1446(c)(1) shall not apply”; “[a] class action may be removed . . . without regard to whether

any defendant is a citizen of the State in which the action is brought”; and “such action

may be removed by any defendant without the consent of all defendants.” 28 U.S.C.

§ 1453(b). In Reece v. Bank of New York Mellon, 760 F.3d 771 (8th Cir. 2014), the Eighth

Circuit rejected the plaintiff’s argument that § 1453(b) applies only to class actions that

meet CAFA’s higher amount-in-controversy requirement, holding that “[r]egardless of how

federal jurisdiction over a class action arises, § 1453(b) unambiguously provides that the

one-year removal limit in § 1446(c)(1) does not apply.” Id. at 776.

By the same token, § 1453(b)’s exemption from the consent requirement applies

to any case that meets CAFA’s definition of “class action,” regardless of whether CAFA’s

jurisdictional requirements are met. As previously discussed, Plaintiffs’ illegal exaction

claim under Arkansas law falls within CAFA’s definition of class action. Brown, 738 F.3d

at 931. Because Plaintiffs have brought a class action claim, Nimbus could remove

“without the consent of all defendants.” § 1453(b). Removal was therefore not

procedurally improper.

C. Supplemental Jurisdiction

In addition to their two federal claims, Plaintiffs bring ten state law claims including

the illegal exaction claim, challenges to the County’s purported exercise of eminent

domain and alteration of county roads, and seven claims for declaratory judgment

regarding the legality of various provisions of the Agreement under Arkansas law. Nimbus

asserts that the Court can and should exercise supplemental jurisdiction over all ten state

law claims. Where, as here, the Court has original jurisdiction over at least one claim, the

Court has “supplemental jurisdiction over all other claims that are so related to claims in

the action within such original jurisdiction that they form part of the same case or

controversy under Article III.” 28 U.S.C. § 1367(a). Plaintiffs argue some of the claims are

not part of the same case or controversy as their federal claims because they rely on

Arkansas law. (Doc. 15, p. 7). Plaintiffs further argue that even if the Court has

supplemental jurisdiction, it should, in its discretion, decline to exercise supplemental

jurisdiction over their state law claims.

The Court agrees with Nimbus that all Plaintiffs’ claims are part of a single case or

controversy. Claims form part of the same case or controversy when they “derive from a

common nucleus of operative fact, and if considered without regard to their federal or

state character, are such that they ordinarily would be expected to be adjudicated in one

judicial proceeding.” Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1248 (8th Cir. 2006).

The distinction between state and federal claims that Plaintiffs try to make out is not

relevant to this determination. All the claims derive from a common nucleus of operative

fact—Nimbus and the County’s entry into the RUMA—and ordinarily would be expected

to be adjudicated in a single proceeding. See Hunter v. Page Cnty., 102 F.4th 853, 868–

69 (8th Cir. 2024) (holding that federal due process and Iowa Open Meetings Act

challenges to county board’s issuance of commercial wind energy permit were part of the

same case or controversy). Therefore, the Court must exercise supplemental jurisdiction

over Plaintiffs’ state law claims unless an enumerated exception applies, in which case

the Court may, in its discretion, decline to exercise supplemental jurisdiction.

As relevant here, a court may decline to exercise supplemental jurisdiction over

claims that raise “novel or complex issue[s] of State law” or that “substantially

predominate[ ] over the claim or claims over which the district court has original

jurisdiction.” 28 U.S.C. § 1367(c)(1)–(2). In exercising its discretion under § 1367(c), a

court should consider the interests in “comity, fairness, judicial economy, and

convenience . . . that underline the supplemental jurisdiction statute.” Hunter, 102 F.4th

at 870.

A case raises a novel or complex issue of state law when the case presents

a state law issue of first impression, state law is unsettled, the case touches

upon a fundamental interest of the state government (especially a state

constitutional issue), or federal resolution of the case would deprive the

state courts of a fair opportunity to develop state law on a significant issue.

Id. “When a claim raises novel issues of state law, [the Eighth Circuit] ha[s] determined

that it is better to let the state courts decide the matter.” Starkey v. Amber Enters., Inc.,

987 F.3d 758, 766 (8th Cir. 2021).

A number of Plaintiffs’ ten state law claims raise novel or complex issues of state

law. In Count 2, for example, Plaintiffs assert that the Agreement constitutes an illegal

attempt to exercise the power of eminent domain in violation of Arkansas Code § 18-15-

103. Section 103, titled “Bill of Rights—Property Owner,” was enacted in 2015, and there

are no appellate cases interpreting any substantive provision of this statute. Act of April

6, 2015, 2015 Ark. Law Act 1101 (H.B. 1908); see Stanley v. Ozarks Elec. Coop. Corp.,

2019 Ark. App. 560 (2019) (addressing only jurisdictional issue). No Arkansas court has

determined whether, as its title suggests, § 103 gives property owners “rights” on which

they can sue, or instead whether, as § 103(a) says, its provisions are merely “principles”

which “serve as standards to be followed” in eminent domain proceedings brought

pursuant to existing causes of action.

Another example is Count 4, in which Plaintiffs assert that the Agreement

unlawfully delegates police powers reserved for law enforcement to a private entity by

allowing Nimbus to tow vehicles from public roads in emergencies. Plaintiffs cite Arkansas

Code § 27-50-1207, which states that “[a] law enforcement agency that directs the

removal of an unattended vehicle, abandoned vehicle, or impounded or seized vehicle

shall adopt a written vehicle removal policy” consistent with the rest of the subchapter

and that “[a]ll law enforcement officers shall comply with the policies” and refrain from

certain prohibited conduct as relates to towing. Section 1207 also lays out the procedure

for challenging the legality of a vehicle removal under the subchapter. But § 1207 does

not appear to be the source of law enforcement’s power to tow vehicles from public roads,

nor does it explicitly or implicitly restrict delegation of such power. There is little case law

surrounding the source and scope of law enforcement’s towing power, and the Court has

been unable to find any Arkansas law on if and when a county can delegate law

enforcement’s towing authority.

State claims also substantially predominate over federal claims, another reason to

decline supplemental jurisdiction. 28 U.S.C. § 1367(c)(2). State claims may substantially

predominate “in terms of proof, of the scope of the issues raised, or of the

comprehensiveness of the remedy sought.” United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966). Here, Plaintiffs’ two federal claims, if proved, entitle them to

compensation for infringements on their property rights, but their ten state claims

“constitute[ ] the real body of [the] case” to which the federal claims are “only an

appendage.” Id. at 727. Plaintiffs’ state law claims go far beyond their entitlement to just

compensation and a pre-deprivation hearing, instead challenging the County’s very power

to enter the Agreement and its compliance with the state-law procedures constraining that

power.

Comity militates strongly in favor of remanding Plaintiffs’ state law claims. Plaintiffs’

state law claims are not legally analogous to their federal takings and due process claims;

they are instead based on various Arkansas laws defining the powers and obligations of

county governments. And some of these laws have little, if any, case law interpreting

them. Marianist Province of the U.S. v. City of Kirkwood, 944 F.3d 996, 1003–04 (8th Cir.

2019). “Needless decisions of state law should be avoided both as a matter of comity and

to promote justice between the parties, by procuring for them a surer-footed reading of

applicable law.” Gibbs, 383 U.S. at 726. Further, there is no unfairness in declining

supplemental jurisdiction because litigants are on notice that supplemental jurisdiction is

not guaranteed. Marianist Province, 944 F.3d at 1004. Once the Court has decided not to

exercise supplemental jurisdiction over some state law claims, “judicial economy and

convenience no longer weigh[ ] in favor of the federal courts” reaching other state law

issues. Starkey v. Amber Enters., Inc., 987 F.3d 758, 766 (8th Cir. 2021).

Because comity weighs heavily in favor of remanding Plaintiffs’ state law claims,

and none of the other interests bearing on the Court’s discretion weigh against, the Court

finds that remand of all Plaintiffs’ state law claims is appropriate.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Remand (Doc. 14) is

GRANTED IN PART AND DENIED IN PART. Plaintiffs’ state law claims (Counts 2-11)

are hereby REMANDED to the Circuit Court of Carroll County, Arkansas. Plaintiffs’

responses to Defendants’ motions to dismiss as to jurisdiction and failure to state a

claim in Counts 1 and 12 shall be filed by no later than August 5, 2025.

IT IS SO ORDERED on this 28" day of July, 2025.

UNITED STATES DISTRICT JUDGE

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