Bison Resources Corporation v. Antero Resources Corporation et al
Filing
266
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT ANTEROS MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT ANTEROS COUNTERCLAIM FOR DECLARATORY JUDGMENT AS FRAMED AND DENYING THIRD-PARTY DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT AND OTHER PENDING MOTIONS AS MOOT. Anteros motion for summary judgment (ECF No. 179 ) is GRANTED. Accordingly, the third-party defendants motions for summary judgment (ECF Nos. 177 , 181 , 183 , 185 , 187 ) are DENIED AS MOOT. Third-party defendants motion for an exte nsion of time to file cross-claims or counterclaims (ECF No. 120 ) is DENIED AS MOOT. Bison Resources motion to strike and for sanctions (ECF No. 195 ) is DENIED. All pending motions in limine (ECF Nos. 202 , 203 , 204 , 205 , 206 , 207 , [20 8], 209 , 210 , 211 ) are hereby DENIED AS MOOT. Additionally, the defendants counterclaim for declaratory judgment (ECF No. 46 , ECF No. 180 at 25) is GRANTED and the Court DECLARES that Antero owns the rights to the Marcellus depths in the su bject leases, the Ash Lease, the Clark Lease, and the WestLease, free and clear of the rights of first refusal asserted by Bison Resources Corporation because they have been extinguished and are no longer valid. It is further ORDERED that this civil action be DISMISSED andSTRICKEN from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr on 9/21/18. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BISON RESOURCES CORPORATION,
an Oklahoma limited liability company,
Plaintiff,
v.
Civil Action No. 1:16CV107
(STAMP)
ANTERO RESOURCES CORPORATION,
a Delaware corporation and
ANTERO RESOURCES APPALACHIAN CORPORATION,
a Delaware corporation and
predecessor-in-interest to defendant
Antero Resources Corporation,
Defendants,
and
ANTERO RESOURCES CORPORATION,
a Delaware corporation,
Third-Party Plaintiff,
v.
BISON ASSOCIATES, L.L.C.,
an Oklahoma limited liability company,
PSPI PARTNERSHIP NO. 2,
a Pennsylvania partnership,
BROWN RESOURCES, L.L.C.,
MARK F. HARISON, partner,
PATRICIA F. HARISON, partner,
JON D. HAZLEY, partner,
SHERRY L. HAZLEY, partner,
E. CRAIG THOMPSON, partner,
VICTORIA F. THOMPSON, partner,
and BISON INTERESTS, L.L.C.,
Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT ANTERO’S MOTION FOR SUMMARY JUDGMENT,
GRANTING DEFENDANT ANTERO’S COUNTERCLAIM FOR
DECLARATORY JUDGMENT AS FRAMED AND
DENYING THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
AND OTHER PENDING MOTIONS AS MOOT
I.
A.
Background
Procedural History
This civil action involves a real property dispute arising out
of an alleged trespass, conversion of property, and tortious
interference as to certain oil and gas leases and further involves
a “right of first refusal” (“ROFR”) issue.
The plaintiff, Bison
Resources Corporation (“Bison Resources”), originally filed this
civil
action
Virginia.
in
the
Circuit
Court
of
Harrison
County,
West
The defendant, Antero Resources Corporation (“Antero”),
removed this case to the United States District Court for the
Northern District of West Virginia citing diversity of citizenship.
ECF No. 1.
The Honorable Irene M. Keeley then transferred this
civil action to the undersigned judge.
ECF No. 4.
Subsequently, this Court entered a memorandum opinion and
order denying plaintiff’s motion to remand (ECF No. 11) finding
that subject matter jurisdiction exists under 28 U.S.C. § 1332(a),
and entered a memorandum opinion and order denying Antero’s motion
to dismiss.
filed
a
ECF No. 42.
counterclaim
As part of its answer, defendant Antero
for
declaratory
judgment
(ECF
No.
46).
Additionally, after consideration of the individual third-party
defendants’ motions to dismiss the third-party complaint by Antero
as it relates to them for lack of personal jurisdiction, this Court
entered a memorandum opinion and order granting the motions to
dismiss by the individual third-party defendants, Mark F. Harison,
Patricia F. Harison, E. Craig Thompson and Victoria F. Higgins,
2
finding that they do not have contacts with the State of West
Virginia sufficient to create personal jurisdiction in this Court
over them in this case.
ECF No. 188.
Defendant Antero filed motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 on the claims of plaintiff Bison
Resources
and
counterclaim.
Antero
further
ECF No. 179.
response in opposition.
requested
this
Court
grant
its
Plaintiff Bison Resources filed a
ECF No. 193.
Antero filed a reply.
ECF
No. 198.
Third-party
defendants
Bison
Associates,
L.L.C.
(“Bison
Associates”), Brown Resources, L.L.C. (“Brown Resources”), PSPI
Partnership No. 2 (“PSPI”), and Bison Interests, L.L.C. (“Bison
Interests”), filed motions for summary judgment.
181, 183, and 185.
ECF Nos. 177,
Third-party plaintiff Antero filed an omnibus
response in opposition to the third-party defendants’ motions for
summary judgment.
replied.
ECF No. 194.
The third-party defendants
ECF Nos. 197 and 199.
On April 2, 2018, the parties appeared by counsel for a
pretrial conference in the above-styled civil action.
Following
the pretrial conference, the Court directed the parties to submit
supplemental briefs regarding the issues raised during the pretrial
conference, including the issues of judicial estoppel as raised by
Antero, and a supplemental response to Antero’s motion for summary
judgment with consideration of the additional documents turned over
by Antero as raised by Bison Resources.
3
ECF No. 254.
At the
pretrial conference, and by agreement of the parties, the trial
date in this civil action was vacated and continued generally
pending the supplemental briefing and resolution of the issues
Further, as pronounced at the pretrial
raised by the parties. Id.
conference, and without objection, the third-party claims asserted
in the above-styled civil action, as well as the Court’s rulings on
the pending motions for summary judgment, were stayed by order as
premature.
Id.
Following the conference and pursuant to this Court’s order
granting
the
supplemental
parties’
memorandum
requests,
in
Bison
opposition
to
Resources
Antero’s
filed
motion
a
for
summary judgment (ECF No. 257) and Antero filed a supplemental
brief in support of its motion (ECF No. 258). Bison Resources then
filed a response to Antero’s supplemental brief (ECF No. 259).
Antero filed a response to Bison Resources’ supplemental memorandum
(ECF No. 260).
Bison Resources filed its reply to Antero’s
response (ECF No. 261).
Antero then filed its reply to Bison
Resources’ response (ECF No. 262).
The contentions of the parties are now fully briefed and
Antero’s
pending
motion
for
summary
judgment
is
ripe
for
disposition.
B.
Facts
In 1979 and 1980, Doran & Associates, Inc. (“Doran”) conveyed
to LaMaur Development Corporation (“LaMaur”) working interests in
previously drilled boreholes on a set of mineral leases, along with
4
“right[s] of first refusal to drill any additional wells which may
be drilled upon the oil and gas lease[s].”
ECF Nos. 180-2 at 2,
180-11 at 2, and 180-21 at 1. These conveyances included the Hazel
Ash lease, the Okey Clark lease, and the West lease (collectively
“the
subject
Resources.
leases”).
In
1993,
LaMaur
merged
into
Bison
In 1996, Bison Resources assigned its rights, titles,
and interests in the subject leases to Mr. and Mrs. Harison and Mr.
and Mrs. Thompson.
In 2001, Mr. and Mrs. Harison and Mr. and Mrs.
Thompson assigned their rights, titles, and interests in the
subject leases to Bison Associates.
In 2012, Bison Associates and
PSPI assigned their right, title, and interest in the subject
leases to Antero and excepted only Bison Associate’s wellbore
interests and an overriding royalty interest.
ECF No. 180-27.
After acquiring interests in the subject leases, Antero entered
those properties, drilled new wells deeper into the boreholes to
reach the Marcellus shale, and began producing natural gas.
Bison
Resources then filed this civil action alleging that Antero did not
provide Bison Resources with prior notice before drilling the new
wells
or
offer
Bison
Resources
an
opportunity
to
drill
in
accordance with its rights of first refusal. Bison Resources
alleges claims for violation of its rights of first refusal,
trespass, conversion, and tortious interference.
II.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
5
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
Anderson, 477 U.S. at
256. “The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in
favor of either party.”
Id. at 250; see also Charbonnages de
France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (“Summary
judgment ‘should be granted only in those cases where it is
6
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.’”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
III.
Following
its
review
of
Discussion
the
fully
briefed
motions,
the
parties’ supplemental briefing, and the memoranda and exhibits
submitted by the parties, and for the reasons set forth below, this
Court finds that Bison Resources cannot prevail on any of its
claims because it does not have a valid right of first refusal.
Accordingly, Antero’s motion for summary judgment (ECF No. 179) is
granted.
A.
Law of the Case Doctrine
As
an
initial
matter,
this
Court
must
first
consider
plaintiff’s argument regarding the law of the case doctrine.
7
In
response to Antero’s motion for summary judgment, Bison Resources
asserts that Antero’s argument that Bison Resources does not have
valid rights of first refusal is trumped by the law of the case
doctrine, requiring denial of Antero’s motion for summary judgment.
ECF No. 193 at 12.
In support, plaintiff states that “these legal
arguments were previously rejected in this Court’s ruling on
[Antero’s] Motion to Dismiss, where virtually identical argument
was presented by [Antero] to this Court.”
Id. at 13.
The law of the case does not apply to interlocutory rulings.
See Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d
1053, 1058 n.8 (4th Cir. 1994) (noting that a final judgment is
required “to sustain the application of the rule of the law of the
case”) (citations omitted); Plotkin v. Lahman, No. 98-1638, 1999 WL
259669,
at
1
(4th
Cir.
Apr.
30,
1999)
(per
curiam)
(citing
Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994)
(stating “[i]nterlocutory orders, including denials of motions to
dismiss, remain open to trial court reconsideration, and do not
constitute the law of the case”)); Columbia Gas Transmission, LLC
v. Ott, 984 F. Supp. 2d 508, 523 (E.D. Va. 2013); Maraschiello v.
City of Buffalo Police Dep’t, 709 F.3d 87, 97 (2d Cir. 2013) (law
of the case does not preclude a district court from granting
summary judgment based on evidence after denying a motion to
dismiss).
In this action, this Court finds that the law of the case
doctrine does not apply to the interlocutory memorandum opinion and
8
order denying Antero’s motion to dismiss (ECF No. 42).
Moreover,
this Court’s order denying Antero’s motion to dismiss clearly
reflects that the Court’s holdings were based on the allegations of
the
complaint
Resources.
viewed
This
in
the
Court
light
expressly
most
favorable
stated
in
its
to
Bison
holding,
“[a]ccordingly, this Court finds that, based on the allegations in
the complaint, the rights of first refusal were not extinguished by
merger of interests in the subject leases or by transfer.” ECF No.
42 at 8. Further, this Court stated in its decision, “[t]aking the
complaint’s allegations as true, Bison Resources holds rights of
first refusal to drill new wells on the subject leases.”
42 at 12.
ECF No.
In its decision, this Court appropriately construed the
complaint in the light most favorable to Bison Resources for the
purposes of deciding the motion to dismiss.
At this time, this
Court finds that its previous opinion denying Antero’s motion to
dismiss is an interlocutory order that remains open to the Court
for reconsideration, and does not constitute the law of the case.
B.
Rights of First Refusal
Next, this Court must analyze Antero’s argument that the
rights of first refusal were personal to Doran and LaMaur.
First,
Antero contends that the ROFR were personal to Doran and LaMaur,
and nothing in the 1979 assignments between those entities burdened
or benefitted their successors or assigns.
Second, Antero asserts
that if the ROFR were not personal to Doran and LaMaur, they
violate the rule against perpetuities.
9
Third, Antero argues that
any ROFR were conveyed to Antero because there is no express
exception or reservation of the ROFR in favor of Bison Resources
beyond the 1979 assignments.
Finally, Antero posits that the ROFR
would have been extinguished through merger, as Antero now holds
all right, title, and interest to the Marcellus depths in the
subject leases.
For these reasons, Antero argues that Bison
Resources does not have a valid ROFR.
ECF No. 180 at 9-13.
It is undisputed that the rights of first refusal were
expressly and clearly stated in the assignments from Doran to
LaMaur.
In 1979 and 1980, Doran expressly conveyed to LaMaur,
working interests in 900-foot boreholes on a set of mineral leases,
along with “right[s] of first refusal to drill any additional wells
which may be drilled upon the oil and gas lease[s].”
180-2 at 2, 180-11 at 2, and 180-21 at 1.
ECF Nos.
Among others, these
conveyances included the Hazel Ash lease, the Okey Clark lease, and
the West lease which are the subject of this litigation.
then merged into Bison Resources Corporation in 1993.
LaMaur
ECF No.
180-7.
Plaintiff contends that under California law applicable at the
time of merger, all of the assets and rights of a corporation
transferred by operation of law upon a corporate merger under
Section 1110, et seq., of the California Corporations Code. Antero
asserts, however, that the 1979 assignments between Doran and
LaMaur were personal and did not burden or benefit their successors
or assigns. Antero then argues in the alternative that, “[e]ven if
10
the ROFR did pass by merger of LaMaur into [Bison Resources] in
1993, [Bison Resources] does not address Antero’s argument that the
ROFR would have been extinguished through subsequent assignments of
the Subject Leases from [Bison Resources] to the Harisons and
Thompsons and subsequent assignments from Doran of the acreage
burdened by the ROFR.”
ECF No. 198 at 5.
Rights of first refusal are presumed to be personal and are
not ordinarily construed as transferable or assignable unless the
particular clause granting the right refers to successors or
assigns or the instrument otherwise clearly shows that the right
was intended to be transferable or assignable.
Park Station Ltd.
P’ship, LLP v. Bosse, 378 Md. 122, 835 A.2d 646 (2003) (citing
Roemhild v. Jones, 239 F.2d 492, 495 (8th Cir. 1957)).
“When a
restrictive agreement will be regarded as a personal covenant and
when as one creating a right which passes with the land to a
purchaser
thereof
categorically.”
1944).
is
a
question
which
cannot
be
answered
Chappell v. Winslow, 144 F.2d 160, 161 (4th Cir.
The determinative factor is “whether it was intended for
the benefit of the land retained or intended to subserve some
purpose personal to the covenantee.” Id. “While the law generally
favors the assignability of contractual rights, contracts that are
deemed ‘personal’ cannot be assigned or devised.”
Jonathan F.
Mitchell, Comment, Can a Right of First Refusal be Assigned?, 68 U.
Chi. L. Rev. 985, 986–87 (2001) (footnote omitted) (citing Sweeney
v. Lilly, 198 W. Va. 202, 479 S.E.2d 863, 866 (1996)).
11
The West Virginia Supreme Court of Appeals has recognized that
a ROFR is personal to the parties named in the instrument creating
the right.
Smith v. VanVoorhis, 170 W. Va. 729, 732, 296 S.E.2d
851, 854 (1982); see also, Allegheny Country Farms, Inc. v.
Huffman, 237 W. Va. 355, 787 S.E.2d 626 (2016).
Further, several
courts have held that a ROFR will not inure to the burden or
benefit of the original parties’ successors and assigns unless the
document creating the ROFR expressly provides that the right
extends to the heirs or assigns. See, e.g., Stratman v. Sheetz, 60
Ohio App. 3d 71, 74, 573 N.E.2d 776, 778 (1989); Gilmore v. Jordan,
132 A.D.3d 1379, 1380, 17 N.Y.S.3d 545 (N.Y. App. Div. 2015); DWG
Oil & Gas Acquisitions, LLC v. S. Country Farms, Inc., 238 W. Va.
414, 419, 796 S.E.2d 201, 206 (2017) (“[E]xception or reservation
must be expressed in certain and definite language.”).
Here, each of the 1979 assignments expressly defines the
“Assignor”
as
“Doran
&
Associates,
Inc.,
a
Pennsylvania
corporation” and the “Assignee” as “LaMaur Development Corporation,
a California corporation.”
Because the 1979 assignments do not
include references to successors or assigns, this Court finds that
the ROFR were clearly meant to be personal between Doran and
LaMaur, binding on themselves only. Further, this Court finds that
there is no express exception or reservation of the ROFR in favor
of Bison Resources beyond the 1979 assignments between Doran and
LaMaur, and that no conveyance to Antero for the subject leases
referenced, excepted, or reserved any ROFR in favor of Bison
12
Resources. Based on the plain and unambiguous language of the 1979
assignments, this Court finds that the ROFR are personal rights
that
did
not
Resources,
or
transfer
to
to
Doran’s
culminate in Antero.
LaMaur’s
assigns,
claimed
both
of
successor,
which
Bison
ultimately
As Antero points out, it makes no difference
that Bison Resources claims to be a successor by merger to LaMaur
under
California
Corporation
Code
§
1110
because
the
1979
assignments define the Assignee as LaMaur alone without reference
to successors or assigns, and thus, the ROFR are personal rights
that do not run to Bison Resources.
ECF No. 180 at 13 n.9.
Because there is nothing in the assignments to indicate that the
right of first refusal was meant to be anything other than a
personal right between Doran and LaMaur, binding on themselves only
and not their heirs and assigns, this Court is compelled to
conclude that the right of first refusal was extinguished upon the
merger of LaMaur and Bison Resources.
Even if, under California law applicable at the time of
merger, all of the assets and rights of Lamaur were transferred by
operation of law upon a corporate merger, Bison Resources does not
address
Antero’s
argument
that
the
ROFR
would
have
been
extinguished through subsequent assignments of the subject leases
from Bison Resources to the Harisons and Thompsons and subsequent
assignments from Doran of the acreage burdened by the ROFR, or that
the ROFR would have been extinguished when Doran conveyed the
subject leases as part of subsequent large package deals, thereby
13
changing the nature of the leasehold interests burdened by the
ROFR.
Bison Resources concedes that the ROFR are not property
interests themselves, but are agreements as to the manner in which
vested interests may be utilized.
ECF No. 193 at 3.
In this case
the ROFR would be considered restraints on alienation.
Following
the reasoning set forth in Easley Coal Co. v. Brush Creek Coal Co.,
91 W. Va. 291, 112 S.E. 512 (1922), the ROFR, as restraints on
alienation, are governed by rules of strict construction and do not
exist unless they have been clearly and definitely provided for in
a written instrument.
Because the language creating the purported
ROFR must be strictly construed under Easley, the ROFR have been
extinguished because they do not inure to the benefit or burden of
Doran or LaMaur’s successors and assigns.
No rights of first
refusal were excepted or reserved for any successors in clear and
definite terms.
The moving party has the burden of establishing that there is
no genuine issue as to any material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
This burden can be met by
showing that the nonmoving party has failed to prove an essential
element of the nonmoving party’s case for which the nonmoving party
will bear the burden of proof at trial.
Id. at 322.
If the moving
party meets this burden, according to the United States Supreme
Court, “there can be ‘no genuine issue as to any material fact,’
since a complete failure of proof concerning an essential element
14
of the nonmoving party’s case necessarily renders all other facts
immaterial.”
Id. at 323.
This Court finds that the ROFR in the 1979 assignments between
Doran
and
LaMaur
were
personal
to
those
entities
and
were
extinguished by subsequent merger and conveyances that changed the
parties that would be burdened by and benefit from the ROFR.
Antero asserts an alternative argument that if the ROFR
between Doran and LaMaur were not personal, they are void against
Antero because they violate the rule against perpetuities and finds
that such analysis is unnecessary.
ECF No. 14 at 26.
This Court
need not analyze Antero’s alternative argument regarding the rule
against perpetuities given its prior finding that the ROFR were
personal between Doran and LaMaur.
Further, Antero argues that this Court should find that Bison
Resources is judicially estopped from taking the position that it
holds ROFR because “such position is wholly inconsistent with the
rights asserted and which formed the basis for the jury verdict and
Partial Judgment Order for BILLC in the State Court Action.”
No. 258 at 12.
ECF
However, the doctrine of judicial estoppel is “an
extraordinary remedy that should be invoked only when a party’s
assertion of a contrary position will result in a miscarriage of
justice and only in those circumstances where invocation of the
doctrine will serve its stated purpose.”
Phoenix Petroleum Co. v.
St. Mary's Ref. Co., No. CIV.A. 1:04CV128, 2005 WL 3535159, at *9
(N.D. W. Va. Dec. 23, 2005) (citations omitted).
15
This Court finds
it unnecessary to determine whether or not the elements of judicial
estoppel have been met under the three-part test in Zinkand v.
Brown,
478
F.3d
634
(4th
Cir.
also
2007),
filed
and
makes
no
findings
regarding the same.
Bison
Resources
sanctions.
ECF No. 195.
a
motion
to
strike
and
for
Plaintiff requests that Antero’s “Motion
for Summary Judgment (ECF Nos. 179-180) and that the Affidavit of
Rady (ECF No. 194-6; as well as associated argument contained in
ECF No. 194) be stricken, and that [Antero] be taxed with the costs
of this Motion and further sanctioned as deemed appropriate by the
Court.”
ECF No. 196 at 6.
Alternatively, plaintiff “requests the
opportunity to file supplemental briefing” in support of its
response in opposition to Antero’s motion for summary judgment,
after Antero has filed its reply brief.
Id.
Antero filed a
response to plaintiff’s motion to strike and for sanctions.
No. 201.
ECF
This Court, following the pretrial conference in this
civil action, granted plaintiff’s request and afforded plaintiff
the
opportunity
to
“initiate
the
briefing
on
the
additional
documents in support to its response in opposition to Antero’s
motion for summary judgment,” and entered an order setting a
briefing schedule on the issue raised by Bison Resources.
254.
ECF No.
Thus, plaintiff’s motion (ECF No. 196) is now moot.
Lastly, as previously pronounced at the pretrial conference in
this
civil
action,
this
Court
finds
that
the
third-party
defendants’ motions for summary judgment (ECF Nos. 177, 181, 183,
16
and 185) are premature as they are premised upon a finding of
liability as to Antero.
Thus, for the reasons previously stated,
this Court lifts the stay on these motions and finds that the
third-party defendants’ motions for summary judgment are now moot.
IV.
Conclusion
For the reasons set forth above, Antero’s motion for summary
judgment (ECF No. 179) is GRANTED.
Accordingly, the third-party
defendants’ motions for summary judgment (ECF Nos. 177, 181, 183,
185, 187) are DENIED AS MOOT.
Third-party defendants’ motion for
an extension of time to file cross-claims or counterclaims (ECF No.
120) is DENIED AS MOOT.
Bison Resource’s motion to strike and for
sanctions (ECF No. 195) is DENIED.
All pending motions in limine
(ECF Nos. 202, 203, 204, 205, 206, 207, 208, 209, 210, 211) are
hereby DENIED AS MOOT.
Additionally, the defendant’s counterclaim for declaratory
judgment (ECF No. 46, ECF No. 180 at 25) is GRANTED and the Court
DECLARES
that Antero owns the rights to the Marcellus depths in
the subject leases, the Ash Lease, the Clark Lease, and the West
Lease, free and clear of the rights of first refusal asserted by
Bison Resources Corporation because they have been extinguished and
are no longer valid.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
17
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
September 21, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
18
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