Citations
- 586 F.2d 1375
Full opinion text
BARRETT, Circuit Judge.
This complex litigation originated on June 28, 1974, when plaintiff, cross-appellant here, Mountain Fuel Supply Company, a Utah corporation (Mountain Fuel) filed its complaint against defendants, appellants here, Reland Johnson and Johnson Oil Company, Inc., a Utah corporation (Johnson Oil) in the state District Court of Davis County, Utah. All parties are residents of the State of Utah. The cause was removed to the United States District Court for the District of Utah, Northern Division, after Johnson filed an Answer and Counterclaim and petitioned for removal on January 6,1975. Following extensive pleading and discovery the cause was tried to a jury which, on June 23, 1976, returned a general verdict in favor of Johnson on its counterclaim. It awarded Johnson $65,000.00 in compensatory damages and $110,000.00 in punitive damages. Upon motion by Mountain Fuel, the court struck the award of punitive damages. Judgment was entered awarding Johnson damages in amount of $65,000.00. Both parties appeal.
After this appeal was docketed and calendared, this Court, sua sponte, requested that the respective parties brief the question of this Court’s subject matter jurisdiction. We assumed that in view of the lack of diversity of citizenship between the parties, this action was one arising under federal law within the meaning of 28 U.S.C.A. § 1331 justifying its removal from state court to federal district court pursuant to 28 U.S.C.A. § 1441. Our concern was whether the appeal falls within the jurisdiction of this Court or the exclusive jurisdiction of the Temporary Emergency Court of Appeals (TECA). We shall focus on the appellate jurisdictional issue which we believe to be dispositive.
The Mountain Fuel complaint filed in the state court and removed to the federal district court alleges, in summary, that: on July 15, 1970, Mountain Fuel entered into a written agreement with Johnson whereby Mountain Fuel agreed to sell and Johnson agreed to buy all condensate which it owned, controlled or produced from the Dry Piney Field in Sublette County, Wyoming, commencing August 1,1970, to July 1, 1971, and thereafter until terminated upon thirty-day notice, at the tank truck loading racks of said unit at an amount equal to “the per barrel price posted on date of delivery by Pan American Petroleum Corporation (AMOCO) for Southwestern Wyoming crude oil of forty (40) degrees to forty-four (44) degrees a. p. i. gravity, plus five cents (5$) per barrel, which posted price on the date hereof is Three Dollars and Twenty-Eight Cents ($3.28) per barrel of forty-two (42) gallons” [R., Vol. V, p. 9]; that thereafter nugget crude oil was substituted for condensate by agreement of the parties; on August 17, 1973, the Cost of Living Council of the United States issued its ‘Phase IV’ oil regulations, a copy of which is attached and incorporated herein by reference. That on or about December 19, 1973, the Cost of Living Council issued further regulations governing the price ceiling on oil, a copy of which, as published in the Federal Register, is hereto attached and incorporated herein by reference." (Emphasis supplied.) [R., Vol. V, p. 5]; on November 16, 1973, Mountain Fuel notified Johnson by letter that in view of the Phase IV price controls it would, effective December 1, 1973, charge the ceiling price of $4.65 per barrel and that, in addition, under applicable federal regulations, it would charge the applicable AMOCO field posted price of $5.83 plus 3