Tank et al v. Burlington Oil and Gas Company LP et al

Filing 93

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 86 Motion to Dismiss Murex Counterclaim Voluntarily. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Greggory G. and Tommie S. Tank,
Plaintiffs,
vs.
Burlington Resources Oil and Gas
Company LP, and Murex Petroleum,
Defendants.

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ORDER

Case No. 4:10-cv-088

The above-entitled action was initiated by plaintiffs in state district court. It was
subsequently removed to this court by Defendant Murex Petroleum (“Murex”) in December 2010.
It arises out of defendants’ alleged breach of the parties’ oil and gas lease [hereinafter referred to
as the “Murex Lease”]. Plaintiffs claimed that defendants breached the Murex Lease by failing to
pay royalties on oil and gas production attributable to their mineral estate. Murex counterclaimed
that plaintiffs breached the Murex Lease by refusing to consent to a subordination of an outstanding
mortgage on their mineral estate.
On January 3, 2013, Murex filed a Motion for Voluntary Dismissal of Counterclaim pursuant
to Fed. R. Civ. P. 41(a)(2). Acknowledging that its counterclaim lacks evidentiary support, it
requests leave to voluntarily dismiss its counterclaim with prejudice. It explains that, in the course
of discovery, it found documents already in its possession which subordinated mortgages given by
plaintiffs and held by Farm Credit Services to the Murex Lease. Anticipating that plaintiffs may
seek to recover costs and attorney’s fees under Rule 42(a)(2) and/or Rule 11, it avers: (1) it was not
aware of the existence of the subordination documents when initially asserting its counterclaim; (2)
upon discovering the subordination documents, it endeavored to have its counterclaim dismissed;
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(3) it has requested dismissal of its counterclaim with prejudice, which forecloses it from relitigating
this issue and thus ensures plaintiffs face no danger of incurring duplicative legal expenses.
Local Rule 7.1 provides in that upon service of a dispositive motion and supporting brief,
the adverse party has twenty-one days to file a response. See D.N.D. Civ. L.R. 7.1(A)(1). It further
provides that an adverse party’s failure to serve and file a response to the motion may be deemed
an admission that the motion is well taken. D.N.D. Civ. L.R. 7.1(F).
More than twenty-one days have lapsed since Murex served and filed its motion and
supporting brief. Plaintiffs have yet to file a response. Its silence may be deemed an admission that
the motion is well taken. Murex’s motion (Docket No. 86) is therefore GRANTED. Murex’s
counterclaim against plaintiffs is dismissed with prejudice and without costs or fees to any of the
parties.
IT IS SO ORDERED.
Dated this 28th day of January, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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