IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WELLINGTON RESOURCE : 

GROUP LLC : 

 : Case No. 2:12-CV-104 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : 

BECK ENERGY CORPORATION, : Magistrate Judge Elizabeth P. Deavers 

 : 

 Defendant. : 

OPINION & ORDER 

I. INTRODUCTION 

This matter is before the Court on Defendant and Third-Party Plaintiff Beck Energy 

Corporation’s (“Beck”) Renewed Motion to Dismiss (Doc. 76) against Intervenor-Plaintiff Transact 

Partners International, LLC’s (“Transact”) First Amended Complaint (Doc. 61). Pursuant to Fed. R. Civ. 

P. 12(b)(6), Beck moves to dismiss Transact’s Second through Seventh Causes of Action. In addition, 

also before the Court is Plaintiff and Third-Party Defendant Wellington Resource Group’s (“Wellington”) 

Motion for Oral Argument on Beck’s above-mentioned Motion to Dismiss (Doc. 98), as well as 

Transact’s Motion for Leave to File Notice of Supplemental Authority Instanter (Doc. 139) regarding this 

same Motion to Dismiss. For the reasons stated below, Beck’s Motion to Dismiss is hereby GRANTED 

IN PART AND DENIED IN PART; Wellington’s Motion for Oral Argument is hereby DENIED as 

moot; and Transact’s Motion for Leave to File Notice of Supplemental Authority Instanter is hereby 

DENIED as moot. 

II. PROCEDURAL POSTURE 

This case originated with a suit brought in diversity jurisdiction by Wellington against Beck, 

alleging breach of contract and unjust enrichment / quantum meruit. Shortly after the case began, 

Transact sought and was granted leave to intervene, and filed claims against both Wellington and Beck. 

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The parties have filed several rounds of amended pleadings, with the result that Beck now asserts 

counterclaims against Wellington, as well as third-party claims against individuals associated with 

Wellington, and Third-Party Defendants Michael Sahadi and Levencrest Consulting, Inc. Wellington, 

Levencrest, and the Third-Party Defendants have answered, while Beck has answered Wellington but 

moved to dismiss Transact’s claims against it. In addition, Wellington sought and was granted leave to 

file a memorandum of law in opposition to Beck’s motion to dismiss Transact’s claims. Wellington also 

requested oral argument regarding Beck’s motion, while Transact recently requested leave to add 

supplemental information relating to the briefing regarding the motion. Both of these motions are 

resolved herein, together with the underlying Motion to Dismiss. These motions have been amply 

briefed, and are ripe for review.1

III. STATEMENT OF FACTS 

Given the number of parties involved, as well as the voluminous filings, multiple competing 

versions of the events of this case have been presented to this Court. For the purposes of this Motion to 

Dismiss, however, this Court accepts as true the facts as pleaded by non-movant Transact in its First 

Amended Complaint (Doc. 61). 

This story began, from Transact’s point of view, in October 2010, when it was approached by 

representatives of Wellington, and shown the assets owned by Wellington’s client, Beck. (Transact’s 

Amended Cmplt., Doc. 61 at ¶ 7). The “Beck Assets” included oil and gas leases, oil and gas wells, and 

related assets, in Monroe, Belmont, and Nobel Counties in Ohio. Id. at ¶ 8. Transact agreed to enter into 

a co-brokerage agreement with Wellington, whereby Transact would utilize its expertise and knowledge 

of industry contacts to find interested purchasers of the Beck Assets and put them in contact with Beck, 

and in return receive 2% of the total transaction price in compensation, if Transact was successful in 

                                                            

1 Meanwhile, Intervenor Marcellus Shale Land Acquisition Group, LLC (“MSLAG”), sought and was granted leave 

to intervene, and in turn filed claims against Beck. Beck moved to dismiss, in a motion also pending before this 

Court (but not currently sub judice). Beck’s Motion to Dismiss is resolved in a parallel Opinion and Order. 

Transact then filed cross-claims against MSLAG, which MSLAG moved to dismiss; MSLAG’s motion awaits 

resolution by this Court.

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“presenting a ready, willing and able purchaser, and [if] such purchaser in fact complete[d] the purchase 

of [the Beck Assets].” Id. at ¶¶ 8-12. Before entering into the co-brokerage agreement, Transact asked 

Wellington to reduce its agreement with Beck to writing; Wellington represented that it had done so in 

late January 2011 (though Wellington and Beck in fact executed their written contract on February 28, 

2011). Id. at ¶¶ 10-11. Under the terms of this contract, Wellington agreed to provide Beck “with 

prospective purchasers for oil and gas leases to which Beck possessed the oil and gas rights.” Id. at ¶ 11 

(quoting Wellington’s Amended Complaint, Doc. 31, at ¶ 18). Transact and Wellington executed their 

co-brokerage agreement on January 31, 2011. Id. at ¶ 11. 

In April 2011, Brian Reilly, principal of Transact, spoke with several oil and gas industry contacts 

regarding the Beck Assets, including representatives of XTO Energy, Inc. (“XTO”). Id. at ¶ 13. Mr. 

Reilly also marketed the Beck Assets to Eclipse Energy (“Eclipse”), which led to a meeting between Beck 

principal, Raymond Beck, and Eclipse. Id. at ¶ 14. During this time, Mr. Reilly explained his role to Mr. 

Beck, and made himself available to Mr. Beck via phone and email. Id. at ¶¶ 16-19. 

Ultimately, no deal was reached between Beck and Eclipse, but in June 2011, Mr. Reilly again 

contacted representatives of XTO, at which time XTO expressed its interest in the Beck Assets. Id. at ¶ 

20. A phone conference was held in July 2011 between representatives of XTO and Wellington, which 

led to several more meetings and telephone conferences between Mr. Beck and representatives of 

Wellington and XTO. Id. at ¶¶ 20-21. 

In August and September 2011, Mr. Reilly sought information from Wellington concerning the 

Beck-XTO negotiations, at which time he was informed that Mr. Beck had requested that all 

communications run through Wellington. Id. at ¶ 22. Several weeks later, Wellington informed Transact 

that it too had been shut out of the Beck-XTO negotiations. Id. at ¶ 23. In November 2011, Beck and 

XTO executed a purchase and sale agreement for the Beck Assets, and in December Beck executed two 

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Assignments and Bills of Sale, conveying the Beck oil and gas leases and related properties. The 

purchase price paid by XTO was $84,961,346.00. Id. at ¶¶ 24-26. 

In January 2012, when Transact inquired as to when Beck would pay Wellington, and thus 

Wellington would pay Transact its 2%, Mr. Reilly was informed that Wellington would not pay. Id. at ¶ 

28. Mr. Reilly spoke to Wellington’s attorney, who informed him that Wellington did not consider 

Transact’s claims to be “valid,” and invited Transact instead to demand a “nominal sum” in payment. Id.

Wellington commenced this action against Beck on February 1, 2012 (Doc. 1). Transact moved 

to intervene on March 14 (Doc. 9), and filed its Third Party Complaint on July 23 (Doc. 46), and its 

Amended Complaint on September 25, 2012 (Doc. 61). One month later, Beck filed the present motion 

to dismiss Counts Two through Seven of Transact’s Amended Complaint (Doc. 76). 

IV. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to state a 

claim upon which relief can be granted.” Such a motion “is a test of the plaintiff’s cause of action as 

stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 

404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court must construe the complaint in the light most 

favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue 

Shield, 552 F.3d 430, 434 (6th Cir. 2008). The Court is not required, however, to accept as true mere 

legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). 

Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions. Allard v. 

Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Rather, the complaint must “‘give the 

defendant fair notice of what the claim is, and the grounds upon which it rests.’” Nader v. Blackwell, 545 

F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). In short, a 

complaint’s factual allegations “must be enough to raise a right to relief about the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

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V. ANALYSIS 

Beck raises two objections to Transact’s claims. First, Beck moves to dismiss Transact’s causes 

of actions against it arising from breach of contract, on the grounds that no contract existed between Beck 

and Transact. (Beck’s Motion to Dismiss, Doc. 76 at 8-10). Second, Beck asserts that, regarding all of 

Transact’s claims, Transact cannot recover either in law or equity, because oil and gas leases fall under 

the meaning of “real estate” as defined in the Ohio Revised Code, compensation for the brokering of 

which requires a person or entity to be a licensed “real estate broker” within the meaning of O.R.C. § 

4735.01(A). (Doc. 76 at 10-14). Because Transact failed to plead and prove that it is a licensed real 

estate broker, Beck argues, O.R.C. § 4735.21 bars recovery of unpaid fees. (Doc. 76 at 15-19). 

Because federal jurisdiction in this case is premised on diversity, the Court applies Ohio 

substantive law. Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008). In resolving issues 

under Ohio law, the Court “look[s] to the final decisions of [Ohio’s] highest court, and, if there are no 

decisions directly on point,” this Court must make “an Erie guess to determine how that court, if 

presented with the issue, would resolve it.” Conlin v. Mortgage Electronic Registration Systems, Inc., 

714 F.3d 355, 358-59 (6th Cir. 2013) (referencing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). In 

this undertaking, “intermediate state appellate courts’ decisions are also viewed as persuasive unless it is 

shown that the state’s highest court would decide the issue differently.” Id. at 359 (internal quotation 

omitted). 

A. Breach of Contract Claims 

A claim for breach of contract under Ohio law requires that a claimant prove: (1) the existence of 

a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the 

plaintiff. Savedoff, 524 F.3d at 762. Proof of all of the essential elements of a contract is required in 

order to maintain a breach of contract claim. Kostelnik v. Helper, 770 N.E.2d 58, 61 (Ohio 2002). 

For its part, Transact insists that it never intended to assert a breach of contract claim against 

Beck. (Transact’s Opp. to Beck’s Motion to Dismiss, Doc. 85 at 5). If so, it is difficult to understand 

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what Transact intended when it incorporated into its Complaint not only the factual allegations found in 

Wellington’s Amended Complaint, but also all five Counts asserted by Wellington against Beck – 

including, presumably, Counts I, II, and V of Wellington’s Amended Complaint, each for breach of 

contract. (See Doc. 61 at ¶ 47) (“Transact is entitled to assert its own rights with regard to all of the 

causes of action asserted against Beck in Wellington’s Amended Complaint”). To the extent that 

Transact asserts claims against Beck under the doctrines of unjust enrichment and quantum meruit, such 

claims sound in equity, not contract, and are not challenged by Beck in this portion of its Motion to 

Dismiss. But as Beck correctly points out, Transact has offered no allegations that a contract ever existed 

between it and Beck. Without a contract, there can be no breach. Shampton v. Springboro, 786 N.E.2d 

883, 887 (Ohio 2003). As such, Counts III, IV, and VII of Transact’s Amended Complaint are hereby 

DISMISSED. 

B. Real Estate Claims 

The bulk of Beck’s argument challenges the ability of Transact to recover, either in law or equity, 

on the grounds that Transact is not a licensed real estate broker in Ohio. Beck’s argument proceeds, at 

core, in four steps: (1) oil and gas leases are included within the meaning of “real estate” as defined by 

O.R.C. § 4735.01(B)2

; (2) any person that sells, purchases, lists, offers, or negotiates the sale of “real 

estate” for a commission is a “real estate broker” under O.R.C. §§ 4735.01(A)3

 & 4725.01(H)4; (3) a “real 

                                                            

2

 § 4735.01(B) provides that “‘[r]eal estate’ includes leaseholds as well as any and every interest or estate in land 

situated in this state, whether corporeal or incorporeal, whether freehold or nonfreehold, and the improvements on 

the land, but does not include cemetery interment rights.” 

3

 § 4735.01(A) provides, in relevant part, that “‘[r]eal estate broker’ includes any person, partnership, association, 

limited liability company, limited liability partnership, or corporation, foreign or domestic, who for another, . . . , 

and who for a fee, commission, or other valuable consideration, or with the intention, or in the expectation, or upon 

the promise of receiving or collecting a fee, commission, or other valuable consideration . . . (1) Sells, exchanges, 

purchases, rents, or leases, or negotiates the sale, exchange, purchase, rental, or leasing of any real estate; (2) Offers, 

attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of any real estate; (3) Lists, or offers, 

attempts, or agrees to list, or auctions, or offers, attempts, or agrees to auction, any real estate; . . . .” 

4

 § 4735.01(H) provides that “[a]ny person, partnership, association, limited liability company, limited liability 

partnership, or corporation, who, for another, in consideration of compensation, by fee, commission, salary, or 

otherwise, or with the intention, in the expectation, or upon the promise of receiving or collecting a fee, does, or 

offers, attempts, or agrees to engage in, any single act or transaction contained in the definition of a real estate 

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estate broker” must be licensed in Ohio, pursuant to O.R.C. § 4735.02(A)5

; and (4) no right of action can 

accrue to, and no compensation can be collected by, real estate brokers who are unlicensed, under O.R.C. 

§ 4735.21(A)6

. (Doc. 76 at 10-15). Accordingly, Beck concludes, Transact cannot recover. 

The Court does not agree. Oil and gas leases are not “real estate” under Ohio law. Beck’s tidy 

argumentation, focused as it is on statutory language, ignores the fact that, in practice, oil and gas leases 

have not historically been considered interests in land in Ohio. A thorough survey of Ohio case law 

leaves this Court convinced that the Ohio Supreme Court, if given the occasion to rule on this issue today, 

would so hold. 

In its previous review and analysis of these cases, this Court reasoned that, in Ohio, “oil and gas 

leases . . . are not leases as that term is traditionally used”; instead, “Ohio courts appear to recognize that 

such leases create a license to enter upon the land for the purpose of exploring and drilling for oil and 

gas.” In re Frederick Petroleum Corp., 98 B.R. 762, 766 (S.D. Ohio 1989). In Frederick, this Court 

considered the application of the bankruptcy laws, specifically 11 U.S.C. § 365(a), to oil and gas leases in 

Ohio. Because § 365(a) deals with “leases of real property,” the Court was required to determine the 

nature of oil and gas leases in Ohio. After conceding that “the exact nature of a lessee’s interest under an 

oil and gas lease has not be clearly established in Ohio,” 98 B.R. at 763, the Court undertook a thorough 

examination of Ohio case law, allowing it to conclude that “an oil and gas lease is regarded under Ohio 

law as being more than a mere rental of the land for a specified term such as would be involved in a 

traditional lease.” Id. at 766. 

                                                                                                                                                                                               

broker, whether an act is an incidental part of a transaction, or the entire transaction, shall be constituted a real estate 

broker or real estate salesperson under this chapter.” 

5

 § 4735.02(A) provides, in relevant part, that “Except [when an out-of-state broker partners with a broker licensed 

in Ohio], no person, partnership, association, limited liability company, limited liability partnership, or corporation 

shall act as a real estate broker or real estate salesperson, or advertise or assume to act as such, without first being 

licensed as provided in this chapter.” 

6

 § 4735.21(A) provides, in relevant part, that “[n]o right of action shall accrue to any person, partnership, 

association, or corporation for the collection of compensation for the performance of the acts mentioned in section 

4735.01 of the Revised Code, without alleging and proving that such person, partnership, association, or corporation 

was licensed as a real estate broker or foreign real estate dealer.” 

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Indeed, from the earliest cases on this issue, Ohio courts have treated oil and gas leases as 

different from an interest in real property. In Ohio Oil Co. v. Toledo, Findley & Springfield RR Co., 2 

Ohio C.D. 505 (C.C. Ohio 1889), for example, the Circuit Court of Ohio, applying Ohio law, held that oil 

and gas leases “[are] not a right in the land as such, but a right to enter upon the land.” Similarly, in 

Herrington v. Wood, 3 Ohio C.D. 475 (C.C. Ohio 1892), the court explained that an oil and gas lease “is 

not strictly a lease, but a license coupled with a conditional grant, conveying the grantor’s interest in the 

gas well, conditioned that gas and oil is found in paying quantities.” See also Miller v. Vandergrift, 20 

Ohio C.D. 730 (C.C. Ohio 1892) (“It is sufficient to say that we regard [oil and gas leases] as not leases in 

the ordinary acceptation of the term, but as a sale of the oil and gas under certain stipulations and 

provisions embodied under the contract.”). As this Court explained, in these early cases, courts generally 

“distinguished between instruments which purported to convey title to the land containing the oil and gas 

and those which merely granted the right to explore for and produce oil and gas.” Frederick, 98 B.R. at 

764. Thus, in Detlor v. Holland, 57 Ohio St. 492, 505 (1898), an agreement giving the lessee “the sole 

right to produce [oil and gas]” from a tract of land was not a lease, but merely a grant of an exclusive 

right to produce during the term. While in Harris v. Ohio Oil Co., 57 Ohio St. 118, 129-30 (1897), the 

Ohio Supreme Court found that a lease “grant[ing] . . . for the purpose and with the exclusive right of 

drilling, . . . all that certain track of land,” was “more than a mere license”; rather, it was “a lease of the 

land for the purpose and period therein, and the lessee has a vested right to the possession of the land to 

the extent reasonably necessary.” 

More recently, however, the Ohio Supreme Court again considered the status of oil and gas 

leases, while deciding whether such leases must be recorded under Ohio law, and found that a grant of 

“all the oil and gas in and under” a tract of land, as well as “the right and privilege of operating upon said 

premises . . . for the obtaining of such oil and gas,” was not a grant of real property. Back v. Ohio Fuel 

Gas Co., 113 N.E.2d 865, 866-67 (Ohio 1953). The court held that 

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[p]ossession of oil and gas, having as they do a migratory character, can 

be acquired only be severing them from the land under which they lie, 

and in effect the instrument of conveyance in the instant case is no more 

than a license to effect such severance. The very sale of oil and gas, 

separate and apart from the real estate surface, constitutes, in law, a 

constructive severance such as occurs in the case of sale of standing 

timber or growing crops. 

Id. at 867. 

 Given this Court’s conclusion in Frederick, and the Ohio Supreme Court’s decision in Back, it 

remains only for the Court to survey more recent cases to determine whether Ohio law has changed in the 

years since. It is this Court’s opinion that the Ohio Supreme Court would still hold that oil and gas leases 

are not part of the real estate in Ohio. 

Three cases demand the Court’s attention. First, in Colucy v. D&H Coal Co., 186 N.E.2d 767 

(Ohio Ct. Common Pleas 1961), the Court of Common Pleas for Tuscarawas County was asked to 

determine whether the plaintiff was a “real estate broker” under Ohio law. The agreement between the 

parties granted to the plaintiff the “sole and exclusive right to acquire . . . all mineral rights, including 

rights to coal, oil and gas, and/or the land wherein and whereon such minerals may be situate.” Id. at 770. 

Because the plaintiff was empowered to acquire interests in land, including non-liquid mineral rights and 

the land itself – property not at issue here – the court concluded that the plaintiff was a real estate agent. 

Id. at 771. 

Relying solely on Colucy, the Northern District of Ohio, in a case also involving classification as 

a real estate broker, announced that the definition of “real estate” in Ohio “has been held to include 

mineral rights, specifically rights to coal, oil and gas.” Binder v. Trinity OG Land Dev. & Exploration, 

LLC, No. 4:11-CV-02621, 2012 WL 1970239, at *3 (N.D. Ohio May 31, 2012) (quotation omitted). 

With respect to our sister court, this Court is unconvinced. The decision in Binder does not evince a 

thorough exploration of the case law, as this Court undertook in Frederick, as the issue in Binder did not 

require resolution of the question of whether oil and gas leases are real estate. Instead, the court based its 

holding on the fact that the plaintiff was acting as a “real estate broker,” not a mere “finder.” The court 

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cited only in passing the Ohio trial court case, the relevance of which applies only to “brokers” 

empowered to acquire land as well as coal, oil, and gas rights, an issue not relevant here. 

Finally, in Maverick Oil & Gas, Inc. v. Barberton City School Dist. Bd. Of Ed., 872 N.E.2d 322 

(Ohio App. 2007), the Ninth District Court of Appeals considered the status of an oil and gas lease on 

property owned by the Barberton City Schools. The lessee sought an injunction to prevent the school 

district from restricting its access to an oil well on the property, and the court found that the school 

district’s grantor held the property subject to the oil and gas lease, and therefore the school board, as 

grantee, likewise took the property subject to that lease. Id. at 327. The court noted that an oil and gas 

lease, while “governed by contract law,” also “creates a limited property right, such that the lessee has the 

right to possess the land to the extent reasonably necessary to perform the terms of the lease on his part.” 

Id. (citing Harris, 57 Ohio St. at 129-130). While the Court takes this statement as persuasive authority, 

this Court does not believe, given the weight of authority discussed above, that the Ohio Supreme Court 

would agree. See Allen v. Andersen Windows, Inc., 913 F. Supp. 2d 490, 499 (S.D. Ohio 2012) (“A court 

should not disregard the decisions of intermediate appellate state courts unless it is convinced by other 

persuasive data that the highest court of the state would decide otherwise.”). Relying solely on Harris, a 

decision from 1897, the court in Maverick did not attempt to reconcile the early Ohio cases in conflict 

with that opinion, nor did it consider the impact of Back on the continuing validity of Harris. 

 Moreover, this Court’s conclusion here accords both with recent legislative action in Ohio, as 

well as the law of other jurisdictions with more substantial bodies of oil and gas law.7

The Ohio legislature is currently considering H.B. 493,8

 introduced in last year, which would give 

the Chief of the Ohio Division of Oil and Gas Resources Management (the “Division”) authority to 

                                                            

7 See El Camino Res. Ltd. v. Huntington Nat. Bank, 712 F.3d 917, 922 (6th Cir. 2013) (a federal court sitting in 

diversity “must ascertain the state law from all available data, which [also] includes . . . cases from other 

jurisdictions, and secondary sources.”)

8 See Wade v. Bethesda Hospital, 337 F. Supp. 671, 674 (S.D. Ohio 1971) (taking judicial notice, on a motion to 

dismiss, of proposed bills in the Ohio legislature, for the purpose of determining the current scope of authority of an 

Ohio judge.)

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regulate “land professionals” – that is, persons engaged in negotiating business agreements for 

exploration or development of oil and gas, and negotiating the acquisition of mineral rights for oil and 

gas. H.B. 493 §§ 1509.31(A)(1), (2). Such land professionals would, under the proposed law, be 

required to register with the Division. Id. § 1509.31(B). While this does not end the inquiry, it does 

provide persuasive evidence that persons engaged in negotiating the purchase and sale of oil and gas 

rights do not currently fall under the ambit of the real estate laws. 

In addition, this Court also finds persuasive the decisions of other states with a more extensive 

history of oil and gas production. In Oklahoma, for example, an oil and gas lease merely “constitutes a 

right to search for and capture [oil and gas],” not an interest in real property. Halliburton Oil Producing 

Co. v. Grothaus, 981 P.2d 1244, 1251 (Ok. 1998). See also Pauline Oil & Gas Co. v. Fischer, 90 P.2d 

411, 412 (1939) (the interest conveyed by an oil and gas lease is not real estate within the meaning of § 

706, which gives a judgment creditor a lien upon the real estate belonging to the judgment debtor); State 

v. Shamblin, 90 P.2d 1053, 1055 (1939 ) (oil and gas mining leases are chattels real and therefore personal 

property). Many other oil-and-gas-producing states have come to a similar conclusion. See, e.g., Bd. of 

County Cmr’s of Johnson County v. Greenhaw, 734 P.2d 1125, 1128 (Kan. 1987) (“A leasehold estate, 

except an oil and gas lease, is real estate under Kansas law.”), Ingram v. Ingram, 521 P.2d 254, 257 (Kan. 

1974) (under Kansas law, “an oil and gas lease leasehold interest is personal property,” and “merely 

conveys a license to enter upon the land and explore for such minerals.”); see also Backar v. Western 

States Producing Co., 547 F.2d 876, 881-82 (5th Cir. 1999) (Under New York law, but not under Texas 

law, oil and gas leases are personal property); compare Salvex, Inc. v. Lewis, 546 So. 2d 1309, 1313 (La. 

Ct. App. 1989) writ denied, 551 So. 2d 1323 (La. 1989) (cataloging Louisiana’s long debate over the 

status of oil and gas leases, eventually resolved by action of the state legislature classifying oil and gas 

leases as an interest in real property). 

In essence, this Court reaffirms its prior conclusion in Frederick, where it stated that “Ohio 

courts, if given the opportunity to do so, would characterize the property interests involved [here] as being 

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like or similar to the interest recognized under Oklahoma law,” and common to many oil-producing 

states, and hold that oil and gas leases are not a grant of real property. 98 B.R. at 766. Accordingly, the 

Court declines to dismiss Counts II, V, and VI of Transact’s Amended Complaint (Doc. 61). 

VI. CONCLUSION 

For the foregoing reasons, Beck’s Motion to Dismiss (Doc. 76) is hereby GRANTED IN PART 

AND DENIED IN PART. As a result of this Order, Wellington’s Motion for Oral Argument and 

Transact’s Motion for Leave to File Notice of Supplemental Authority Instanter (Doc. 98, Doc. 139) are 

MOOT and, accordingly, DISMISSED. 

IT IS SO ORDERED. 

 /s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 DATED: September 20, 2013 

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