United States District Court, D. North Dakota
Enerplus Resources (USA) Corporation, a Delaware corporation, Plaintiff,
Wilbur D. Wilkinson, an individual; Three Affiliated Tribes, Fort Berthold District Court; Reed Alan Soderstrom, agent for Wilbur D. Wilkinson; and Ervin J. Lee, an individual, Defendants. And Ervin J. Lee, an individual, Third-Party Plaintiff,
Reed Soderstrom, an individual; MHA Nation Supreme Court; Three Affiliated Tribes; and Fort Berthold Tribal District Court, Third-Party Defendants. And Ervin J. Lee, an individual, Cross-Claimant
Wilbur D. Wilkinson, an individual, Cross-Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
L. Hovland, Chief Judge.
the Court is Plaintiff Enerplus Resources (USA)
Corporation's (“Enerplus”) motion for summary
judgment filed on January 13, 2017. See Docket No.
62. Defendants Wilbur Wilkinson and Reed Soderstrom filed a
response in opposition to the motion on February 2, 2017.
See Docket No. 70. Enerplus filed a reply brief on
February 14, 2017. See Docket No. 73. For the
reasons set forth below, Eneplus' motion for summary
judgment is granted.
is a Delaware corporation whose principal place of business
is located in Denver, Colorado. Enerplus is primarily engaged
in the oil and gas exploration business and is authorized to
do business as a foreign corporation in the state of North
Dakota. Wilbur Wilkinson is an individual residing in
Garrison, North Dakota, and a citizen of the state of North
Dakota. The Three Affiliated Tribes Fort Berthold District
Court (“Tribal Court”) is a Tribal Court sitting
on the Fort Berthold Indian Reservation in North Dakota. Reed
Soderstrom is an attorney at Pringle & Herigstad, P.C.,
in Minot, North Dakota, and a citizen of North Dakota. Ervin
Lee is an attorney and individual residing in Minot, North
Dakota, and a citizen of the state of North Dakota.
September 2008, Wilkinson filed a lawsuit against Peak North
Dakota, LLC (“Peak North”) and others in Tribal
Court. Lawsuits involving Peak North and Wilkinson were filed
in a number of other courts as well. On October 31, 2008, the
Tribal Court dismissed the lawsuit because it lacked
jurisdiction as a result of the forum selection clauses in
the agreements between Peak North and Wilkinson. See
Docket No. 1-2. On or about October 4, 2010, Peak North and
Wilkinson, among others, entered into a “Settlement
Agreement, Full Mutual Release, Waiver of Claims and Covenant
Not to Sue” (the “Settlement Agreement”)
which resolved all the lawsuits, whereby Peak North agreed to
assign to Wilkinson a 0.5% of 8/8ths overriding royalty
interest in certain oil and gas leases located in North
Dakota. See Docket No. 1-3. Lee represented
Wilkinson during the negotiation of the Settlement Agreement.
Ten percent (10%) of Wilkinson's overriding royalty
interest was assigned to Lee as part of the Settlement
Agreement. In the Settlement Agreement, Peak North and
Wilkinson agreed that “any disputes arising under this
Agreement and/or the transactions contemplated herein shall
be resolved in the United States District Court for the
District of North Dakota Northwest Division and such court
shall have exclusive jurisdiction hereunder and no party
shall have the right to contest such jurisdiction or
venue.” See Docket No.1-3, ¶ 7.
to the Settlement Agreement and by way of an Assignment of
Overriding Royalty Interest dated October 4, 2010,
(“ORRI Assignment”), Peak North assigned to
Wilkinson a 0.45% of 8/8ths overriding royalty interest and
Lee 0.05% of 8/8ths overriding royalty interest,
proportionately reduced accordingly, in the oil and gas
leases in North Dakota. See Docket No. 1-4. The ORRI
Assignment provides that all disputes arising from the ORRI
Assignment “shall be resolved in the State Courts of
the State of North Dakota or an applicable Federal District
Court sitting in North Dakota and such courts shall have
exclusive jurisdiction hereunder and neither Assignor [n]or
Assignee shall have the right to contest jurisdiction or
venue.” See Docket No. 1-4, ¶ 6.
conjunction with the execution of the Settlement Agreement
and the ORRI Assignment, Wilkinson and Lee both executed
“Division Orders” dated October 4, 2010.
See Docket Nos. 1-5 and 1-6. Both Division Orders
provide that all disputes arising from the Division Order
“and/or the transactions contemplated herein shall be
resolved in the State Courts of the State of North Dakota or
an applicable Federal District Court sitting in North Dakota
and such courts shall have exclusive jurisdiction hereunder
and Interest Owner shall not have the right to contest
jurisdiction or venue.” See Docket Nos. 1-5
and 1-6, p. 3.
December 2010, Peak North merged with Enerplus, with Enerplus
being the surviving entity. See Docket No. 67-1.
Around this same time an attorney fee dispute arose between
Wilkinson and Lee relating to the Settlement Agreement. On or
about December 10, 2010, Wilkinson filed suit against Lee in
Tribal Court, in a case styled Wilbur D. Wilkinson v.
Ervin J. Lee, Civil No. CV-2010-0673. See
Docket No. 24-17. Wilkinson alleged Lee breached the
Settlement Agreement and demanded the return of $140, 000. In
February 2011, the Tribal Court ordered that all future
payments due from Peak North to Wilkinson and Lee be
deposited into the trust account of Wilkinson's attorney,
Reed Soderstrom (the “IOLTA Payment Order”).
See Docket No. 1-6. The Tribal Court denied
Lee's motion to dismiss for lack of jurisdiction, and Lee
appealed. See Docket Nos. 24-27 and 24-28. On August
31, 2015, MHA Nation Supreme Court affirmed the Tribal
Court's jurisdictional ruling. See Docket No.
24-31. The MHA Supreme Court reaffirmed its jurisdictional
ruling on November 30, 2015. See Docket No. 24-34.
September 2014 and October 2015, when paying the overriding
royalty interest amount due to Wilkinson and Lee,
collectively, the Enerplus accounting department, through
clerical error, authorized the total deposit of $2, 991,
425.25 into Soderstrom's IOLTA account. Enerplus was only
required to deposit a total of $29, 914.10. As a result,
Enerplus overpaid Wilkinson and Lee, collectively, by $2,
961, 511.15 (the “Excess Money”). See
Docket Nos. 1-5 and 1-7. After Enerplus discovered the
overpayment, it contacted Wilkinson and Soderstrom in
December 2015, and requested the money be returned. Wilkinson
and Soderstrom refused to return the Excess Money.
about February 29, 2016, Wilkinson filed suit against
Enerplus in Tribal Court in a case styled Wilbur D.
Wilkinson v. Enerplus Resources Corporation, Civil No.
CV-2016-0079 (the “Tribal Court Case”), alleging
Enerplus has breached the Settlement Agreement by not fully
paying Wilkinson as required by the Settlement Agreement.
See Docket No. 1-8. Enerplus commenced the current
action in federal court on May 4, 2016. See Docket
August 30, 2016, this Court entered a preliminary injunction
requiring the Excess Money to be deposited with the Court.
See Docket No. 48. The Excess Money was deposited
with the Court on October 11, 2016, and remains in the
Court's registry account. Wilkinson and Soderstrom
appealed the preliminary injunction but this Court refused to
stay the case pending the appeal. See Docket Nos. 49
and 55. Enerplus has moved for summary judgment as to the
Excess Money. See Docket No. 62. Wilkinson and
Soderstrom oppose the motion. See Docket No. 70. Lee
has not responded.
STANDARD OF REVIEW
judgment is appropriate when the evidence, viewed in a light
most favorable to the non-moving party, indicates that no
genuine issues of material fact exist and that the moving
party is entitled to judgment as a matter of law. Davison
v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th
Cir. 2007); see Fed.R.Civ.P. 56(a). Summary judgment
is not appropriate if there are factual disputes that may
affect the outcome of the case under the applicable
substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). An issue of material fact is
genuine if the evidence would allow a reasonable jury to
return a verdict for the non-moving party. Id.
Court must inquire whether the evidence presents a sufficient
disagreement to require the submission of the case to a jury
or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R.
Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The
moving party bears the responsibility of informing the court
of the basis for the motion and identifying the portions of
the record which demonstrate the absence of a genuine issue
of material fact. Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving party may
not rely merely on allegations or denials in its own
pleading; rather, its response must set out specific facts