Weyerhaeuser Co v. Pardee Minerals L L C et al

Filing 75

MEMORANDUM RULING re 59 MOTION to Realign Parties for Purposes of Discovery and Trial filed by Weyerhaeuser Co. Signed by Judge Terry A Doughty on 6/21/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
WEYERHAUSER CO.

CIVIL ACTION NO. 17-0856

VERSUS

JUDGE TERRY A. DOUGHTY

PARDEE MINERALS, LLC, ET AL.

MAG. JUDGE MARK L. HORNSBY

RULING
Pending before the Court is a Motion to Realign Parties for Purposes of Discovery and
Trial (“Motion to Realign”) [Doc. No. 59] filed by Plaintiff Weyerhauser Co.
(“Weyerhauser”).

Defendant EP Energy E & P Company, L.P. (“EP”) filed a

memorandum in opposition to the motion. [Doc. No. 71]. Weyerhauser filed a reply
memorandum in support of its motion. [Doc. No. 74]. For the following reasons, the
motion is DENIED.
This is a dispute over mineral servitudes. On July 3, 2017, Weyerhauser filed a
Complaint in this Court against Defendants Pardee Minerals, LLC (“Pardee”), EP,
Wildhorse Resources, II LLC, Michael Carnes, Suzanne Carnes, Carnes Oil Corp.,
Carnes Texas, Ltd., Richard P. DeCamara, and James S. Thigpen, asserting that the
lawsuit was brought pursuant to the federal Declaratory Judgment Act, 28 U.S.C. §§
2201, et seq., and under state law, including La. Rev. Stat. § 30:10(A)(3) and the
Louisiana Civil Code.
Weyerhauser is the owner of certain immovable property or mineral servitudes
over immovable property located in Bienville Parish, Louisiana. The parties dispute

whether a mineral servitude created in 1971 by the predecessor-in-interest of Pardee
continues to burden the land, or whether the servitude has been extinguished by the
prescription of nonuse. It is undisputed that three wells were drilled between 1980 and
1998 on the servitude: the Sutton Well in 1980, the Kerr-McGee Well in 1989, and the
Famcor Well in 1998. However, the wells were unproductive, i.e., dry holes. The issue
is whether these three wells constituted a sufficient use of the servitude under La. Rev.
Stat. § 31:29 to interrupt prescription.
Weyerhauser seeks a declaration from the Court that the servitude was
extinguished by the running of the prescription of nonuse on or before December 21,
1999, an award of damages for unpaid proceeds of production attributable to gas and oil
production since that date, an award of damages for bad faith possession, damages for
enrichment without cause, and other relief.
EP answered and filed cross claims against the other Defendants. The other
Defendants have also answered.
In the current motion, Weyerhauser moves the Court to realign the parties for
purposes of discovery and trial, contending that Defendants bear the burden of proof at trial
to show that there were sufficient operations on the servitude in a timely manner to interrupt
prescription. It argues that the parties should be realigned to conform to the burden of
proof and to avoid confusion to the jury.
EP responds that it is undisputed that timely use was made of the servitude. The
dispute, according to EP, is whether the uses were sufficient. To that end, EP cites authority
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to suggest that there is a presumption that dry hole drilling operations were conducted in
good faith recognized by the Louisiana Second Circuit Court of Appeals in Kellogg Bros.,
Inc. v. Singer Mfg. Co., 131 So.2d 578 (La. App. 2d Cir. 1961).

Relying on the

presumption, EP argues that the Court should not realign the parties.
In a reply memorandum, Weyerhauser denies that there is such a presumption of
good faith because (1) the Kellogg case discussed a presumption, but then proceeded to
consider the underlying facts to determine whether the servitude owner had met its burden
of proof; (2) the cases Weyerhauser cited and which do not apply a presumption are on
point; (3) no court has applied a presumption of good faith under these circumstances; (4)
even if there was a presumption of good faith, it did not survive the 1989 enactment of the
Louisiana Code of Evidence; and (5) the alleged presumption is not established by and is
contrary to legislation.
A district court has discretion to set the order of proof at trial. See Helling v.
McKinney, 113 S. Ct. 2475 (1993). Ordinarily, the party with the burden of proof is
allowed to open and close the case. See Martin v. Cheesebrough–Pond’s, Inc., 614 F.2d
498, 501 (5th Cir. 1980). However, it is clear that a motion to realign the parties is left to
the discretion of the Court. See Lloyd v. Pendleton Land & Exploration, Inc., 22 F.3d 623
(5th Cir. 1994) (citing Moreau v. Oppenheim, 663 F.2d 1300 (5th Cir. 1981). Further, it
is not an abuse of discretion for a court to deny realignment when opposing parties bear
the burden of proof on different issues in the case. See, e.g., Anheuser–Busch, Inc. v. John
Labatt Ltd., 89 F.3d 1339, 1344 (8th Cir. 1996) (when both parties bore the burden of proof
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on distinct counts of their causes of action, the district court did not abuse its discretion in
denying the defendant’s motion to set the order of proof and realign the parties).
In this case, the Court denies Weyerhauser’s Motion to Realign Parties. In reaching
this decision, the Court need not reach a determination whether there is a presumption of
good faith as argued by EP. Even if Defendants bear the burden of proof on certain aspects
of this case, Weyerhauser bears the burden of proof on its requested money damages and
Defendants’ alleged bad faith. Therefore, realigning the parties would not make the case
more understandable or less confusing for the jury. Further, all parties will have the
opportunity for discovery in this case as it stands. Based on these considerations and given
the posture of this case, the Court finds that a realignment of the parties would be
inappropriate.
MONROE, LOUISIANA, this 21st day of June, 2018.

______________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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