DART CHEROKEE BASIN OPERATING COMPANY, LLC; Cherokee Basin Pipeline, LLC, Petitioners, v. Brandon W. OWENS, individually and on behalf of all others similarly situated, Respondent, 730 F.3d 1234

ORDER This matter is before the court on the petitioners’ Petition for Rehearing En Banc. We also have a response. Both pleadings were circulated to all the judges of the court who are in regular active service and who are not recused in this proceeding. Upon consideration, a poll was requested and the votes were evenly divided. Consequently, the poll did not carry and the en banc petition is denied. See Fed. R.App. P. 35(a) (noting a majority may direct en banc review). Judges Kelly, Hartz, Tymkovich and Phillips would grant the petition, with Judge Hartz writing the attached formal dissent, in which Judges Kelly, Tymkovich and Phillips join.