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Peak North Dakota, LLC v. Wilkinson

May 25, 2010

PEAK NORTH DAKOTA, LLC, A COLORADO LIMITED LIABILITY COMPANY, PEAK ENERGY RESOURCES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, JACK VAUGHN, ALEX MCLEAN, AND MATT GRAY, PLAINTIFFS,
v.
WILBUR WILKINSON, STANDING BEAR TRADERS, LLC, A NORTH DAKOTA LIMITED LIABILITY COMPANY, AND THE THREE AFFILIATED TRIBES, FORT BERTHOLD DISTRICT COURT, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER

Before the Court are two motions to dismiss Standing Bear Traders, LLC's (SBT) counterclaim filed by the Plaintiffs on February 4, 2010. See Docket Nos. 95 and 97. Rather than respond to the motions to dismiss, SBT filed a first amended counterclaim on February 25, 2010. See Docket No. 103. Plaintiffs filed a motion to strike the first amended counterclaim on March 8, 2010. See Docket No. 104. SBT filed a response in opposition to the motion to strike on March 29, 2010. See Docket No. 112. The Plaintiffs filed a reply brief on April 5, 2010. See Docket No. 117. For the reasons set forth below, the motions are denied.

I. BACKGROUND

Peak North Dakota, LLC (Peak North) is a limited liability company organized under Colorado law and authorized to do business as a foreign limited liability company in North Dakota.

Peak Energy Resources, LLC (Peak Energy) is a limited liability company organized under Delaware law. Jack Vaughn and Alex McLean are members of Peak Energy and managers of Peak North who reside in Colorado. Matt Gray is a member of Peak Energy who also resides in Colorado.

Standing Bear Traders, LLC (SBT) is a limited liability company organized under North Dakota law. Wilbur Wilkinson (Wilkinson), Margarita Burciaga-Taylor (Taylor), and Richard L. Howell (Howell), were SBT's sole members. Wilkinson is a North Dakota resident. Taylor and Howell reside in Texas. Wilkinson's role and membership in SBT are disputed.

In a document dated September 24, 2007, Peak North and SBT entered into a "Letter Agreement" wherein SBT agreed to help Peak North obtain oil and gas leases on land located within the Fort Berthold Indian Reservation. Peak North was advised by Wilkinson in a letter dated January 8, 2008, of his desire to "close out" the parties' Letter Agreement. This letter was apparently sent in response to an email from a Peak North representative indicating no more mineral acreage should be leased. Shortly thereafter, Peak North advised SBT that it was terminating the Letter Agreement per Wilkinson's request and for what it deemed as SBT's breach of the Letter Agreement. On January 15, 2008, Peak North and SBT agreed to terminate the Letter Agreement effective January 8, 2008. Wilkinson, along with Taylor, Howell, and Vaughn, signed both the Letter Agreement and the Termination Agreement. Both agreements list Wilkinson, Taylor, and Howell as managers.

On September 8, 2008, SBT and Wilkinson filed suit against Peak North, Peak Energy, Vaughn, McLean, and Gray in Fort Berthold Tribal Court. Wilkinson is an enrolled member of the Three Affiliated Tribes on the Fort Berthold Indian reservation. Wilkinson states in his amended answer that the tribal court lawsuit has been dismissed. See Docket No. 42.

The Plaintiffs -- who were named as Defendants in the tribal court action -- responded to the action in tribal court by initiating the above-entitled declaratory judgment action in federal court on October 14, 2008. See Docket No. 1. Averring that SBT and Wilkinson had breached the terms of the Letter Agreement and subsequent Termination Agreement, they sought both monetary and injunctive relief. In so doing they stressed that both the Letter Agreement and Termination Agreement contained clauses identifying the state courts of North Dakota, and applicable federal district courts of North Dakota, as the exclusive venues for any disputes arising among the parties.

SBT filed an answer and counterclaim on January 15, 2010. See Docket Nos. 84 and 86. The counterclaim contained claims for fraud, rescission, breach of contract, punitive damages, unjust enrichment, and declaratory relief. The motions to dismiss under consideration were filed on February 4, 2010. See Docket Nos. 95 and 97. The first amended counterclaim, which was filed on February 25, 2010, contains all the same claims as the original counterclaim. See Docket No. 103.

II. DISCUSSION

The Plaintiffs (also Defendants in the tribal court action) filed two motions to dismiss on February 4, 2010. The first motion to dismiss sought dismissal of SBT's counterclaim against Peak Energy, Vaughn, McLean and Gray. See Docket No. 95. The motion was made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The second motion to dismiss related only to counts I, II, and V of SBT's counterclaim and sought dismissal or, in the alternative, the filing of a more definite statement. The second motion was filed on behalf of all the Plaintiffs and was made pursuant to Rule 12(b)(6) and Rule 12(e) of the Federal Rules of Civil Procedure.

SBT's first amended counterclaim was filed on February 25, 2010. SBT did not seek leave of court to file the pleading but rather made the filing ...


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