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 April 13, 2017. See Docket No. 78.
Defendant Wilbur Wilkinson filed a response in opposition to
the motion on May 4, 2017. See Docket No. 84. Ervin
Lee did not respond to the motion. Enerplus filed a reply
brief on May 10, 2017. See Docket No. 85. Also
before the Court is Enerplus' motion for attorney fees on
appeal remanded to this Court by the Eighth Circuit Court of
Appeals pursuant to Rule 47C(b) of the Federal Rules of
Appellate Procedure. See Docket Nos. 89 and 90. For
the reasons set forth below, Enerplus' motion for summary
judgment and motion for appellate attorney fees are 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 a former attorney and a citizen of the state of North
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 Nos. 10-5 and
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. In the Tribal Court action,
Wilkinson alleged Lee breached the Settlement Agreement and
demanded the return of $140, 000. In February 2011, the
Tribal Court ordered 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
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 and
prohibiting Wilkinson from litigating any disputes arising
from the Settlement Agreement, ORRI Assignment, and Division
Orders in Tribal Court, and prohibiting the Tribal Court from
exercising jurisdiction over Enerplus. 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. The Eighth
Circuit Court of Appeals affirmed the Court's grant of a
preliminary injunction on August 2, 2017. See Docket
February 23, 2017, the Court granted Enerplus' motion
summary judgment as to the Excess Money/equitable restitution
issue finding Enerplus was entitled to have the Excess Money
returned to it. See Docket No. 75. Enerplus has
moved to dismiss its claim for an accounting. See
Docket No. 79. Enerplus has moved for summary judgment a
second time to resolve the remaining issues in the case which
are whether the preliminary injunction should be converted to
a permanent injunction and whether Enerplus is due attorney
fees related to this case or the Tribal Court case.
See Docket No. 78. The Court must also decide
whether Enerplus is entitled to attorney fees related to the
appeal of the preliminary injunction, which the Eighth
Circuit remanded to this Court under Rule 47C(b) of the
Federal Rules of Appellate Procedure.
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, ...