# Williams v. Writer

> District Court, W.D. Arkansas · July 28, 2025

URL: https://www.frixlaw.com/law-library/cases/11109694

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** July 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11109694

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11109694. Public record. Not legal advice.