United States Court of Appeals

For the Eighth Circuit

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No. 17-3708

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Enerplus Resources (USA) Corporation, a Delaware corporation

lllllllllllllllllllllPlaintiff - Appellee

v.

Wilbur D. Wilkinson

lllllllllllllllllllllDefendant - Appellant

Three Affiliated Tribes, Fort Berthold District Court

lllllllllllllllllllllDefendant

Reed Soderstrom, agent for Wilber D. Wilkinson

lllllllllllllllllllllDefendant - Appellant

Ervin J. Lee, an individual

lllllllllllllllllllllDefendant

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Appeal from United States District Court

for the District of North Dakota - Bismarck

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 Submitted: October 15, 2019

Filed: January 14, 2020

[Unpublished]

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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges. 

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PER CURIAM.

Enerplus Resources (USA) Corporation (“Enerplus”) brought suit to recover

approximately $2.9 million in overpayments to Wilbur D. Wilkinson. The

overpayments stemmed from an overriding royalty interest paid in connection with

a settlement agreement between, among others, Wilkinson and Peak North Dakota,

LLC (“Peak North”). Peak North subsequently merged into Enerplus. The district

court1

awarded summary judgment in favor of Enerplus, holding that it was entitled

to a return of the overpayment. The court also awarded Enerplus its costs and fees

under a contractual fee-shifting provision. Wilkinson appeals. We affirm. 

I. Background

2

Wilkinson sued Peak North in tribal court. Subsequently, on October 4, 2010,

Peak North and Wilkinson entered into a “Settlement Agreement, Full Mutual

Release, Waiver of Claims and Covenant Not to Sue” (“Settlement Agreement”),3

1The Honorable Daniel L. Hovland, United States DistrictJudge for the District

of North Dakota.

2The background section istaken in large partfromour prior opinion,Enerplus

Resources (USA) Corp. v. Wilkinson, 865 F.3d 1094, 1095–96 (8th Cir. 2017),

without further attribution. 

3

In conjunction with the Settlement Agreement, the parties executed an

“Assignment of Overriding Royalty Interest” and division orders. We refer to these

other documents collectively as the “Assigning Documents.”

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wherebyPeak North agreed to assignWilkinson an overriding royaltyinterest (ORRI)

in certain oil and gas leases located in North Dakota.4

Pursuant to 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

DakotaNorthwest Division and such courtshall have exclusive jurisdiction hereunder

and no party shall have the right to contest such jurisdiction or venue.” The Assigning

Documents contained similar clauses, stating that all disputes “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 [party] shall have the right to contest jurisdiction or venue.”

In December 2010, Peak North merged with and into Enerplus, with Enerplus

being the surviving entity. Because of an alleged clerical error between August 2014

and October 2015, Enerplus claims it overpaid the ORRI due to Wilkinson by

$2,961,511.15. Upon discovering the error, Enerplus promptly, but unsuccessfully,

sought return of the overpaid funds.

On February 29, 2016, Wilkinson sued Enerplus in the Fort Berthold Tribal

Court, alleging Enerplus breached the Settlement Agreement by underpaying

Wilkinson. Specifically, Wilkinson sought “an accounting on the leases, mineral

acreage and [ORRI]”; sought “an order . . . decree[ing] that [Enerplus] has not fully

paid its obligation”; and requested that “title be quieted as to such claim, and that

[Enerplus] be forever debarred and enjoined from further asserting the same.”

4Attorney Ervin Lee represented Wilkinson during the Settlement Agreement

negotiation, and ten percent of Wilkinson’s ORRI was assigned to Lee as part of the

Settlement Agreement. Because Lee’s interest is derived from Wilkinson’s interest

and Lee is similarly situated to Wilkinson in the present action, we need not

separately discuss Lee’s interest.

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Enerplus subsequently brought this action in the federal district court, seeking

(1) a preliminary injunction prohibiting Wilkinson from prosecuting any lawsuits in

tribal court arising from or relating to the Settlement Agreement and prohibiting the

tribal court from exercising jurisdiction over Enerplus in Wilkinson’s tribal court

case, and (2) an order requiring that the overpaid ORRI be deposited into the district

court’s registry. In response, Wilkinson moved to dismiss. The district court granted

Enerplus’s motion for preliminary injunctive relief and denied Wilkinson’s motion

to dismiss. Specifically, the court enjoined Wilkinson from prosecuting any lawsuits

arising fromor relating to the Settlement Agreement in the tribal court, prohibited the

tribal court from exercising jurisdiction over Enerplus in Wilkinson’s pending suit,

and ordered Wilkinson to transfer the overpaid ORRI into the district court’sregistry.

On appeal, we affirmed the district court’s grant of a preliminary injunction. See

Enerplus, 865 F.3d at 1097–98.

Enerplus then moved for summary judgment, seeking a determination that it

was entitled to return of the overpayment. Wilkinson responded by challenging

Enerplus’sstanding to bring the action, as he did before this court on appeal from the

district court’s grant of the preliminary injunction. See id. (“Wilkinson asserts that

Enerplus lacks standing to enforce the forum selection clause because the Settlement

Agreement incorporates by reference the underlying leases, which prohibit the

assignment of mineral interests without approvalfromthe Secretary of the Interior.”).

Wilkinson submitted no evidence in support of his argument. The district court

granted Enerplus’s motion, finding that Peak North merged into Enerplus and,

therefore, Enerplus had standing to bring its claims against Wilkinson. 

Thereafter, Enerplus filed a second motion for summary judgment, seeking to

permanently enjoin Wilkinson from pursuing any claims related to the Settlement

Agreement, ORRI Assignment, or Assigning Documents and to permanently enjoin

the tribal court from exercising jurisdiction over such matters. Enerplus also sought

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an award of fees and costs pursuant to a fee-shifting provision in the Settlement

Agreement and Assigning Documents. The district court granted the motion and

awarded Enerplus its attorney’s fees and costs. 

Wilkinson moved for reconsideration, arguing that “the Fort Berthold Indian

Reservation has a law prohibiting the assignment of oil and gas leases” and that

Enerplus’srefusal to provide an accounting or prove its assignment from Peak North

is in violation of Resolution No. 08-87-VJB. Memo. in Support of Mot. for Recons.,

Enerplus Res. (USA) Corp. v. Wilkinson, No. 1:16-cv-00103-DLH-CSM (D.N.D.

Nov. 16, 2017), ECF No. 94. The district court denied the motion. 

II. Discussion

On appeal, Wilkinson arguesthat(1) Enerpluslacks standing to assert its claim

because it failed to show that Peak North properly assigned the mineral interests to

Enerplus; (2) disputed issues of material fact exist concerning “whether there was

actually an overpayment or underpayment based on Wilkinson’s written agreement

ORRI of 0.44649% and Enerplus’[s] unwritten claimed overpayment based on [its]

claim that Wilkinson’s ORRI is [0].00124577%,” Appellant’s Br. at 8–9; and (3) the

district court erred in not considering Enerplus’s failure to provide “proof of its

assignment from Peak North in violation of Fort Berthold Indian Reservation

Resolutions and Policies.” Id. at 10. 

We review de novo the district court’s grant of summary judgment to Enerplus,

see Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc),

and now affirm. 

First, we have already rejected Wilkinson’s argument that Enerplus lacks

standing because Enerplus has produced no proof that Peak North properly assigned

the mineral interests to Enerplus. See Enerplus, 865 F.3d at 1097–98. As the district

court explained, Wilkinson is “confus[ing] principles of merger and assignment.”

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Enerplus Res. (USA) Corp. v. Wilkinson, No. 1:16-cv-00103-DLH-CSM, 2017 WL

721977, at *4 (D.N.D. Feb. 23, 2017). “Because Enerplus and Peak North merged,

there was no assignment of any oil and gas leases for the Secretary of the Interior to

approve, if indeed such approval is required. . . . Enerplus, having merged with Peak

North and having made the mistaken overpayment, clearly has standing.” Id.

(emphasis added). Enerplus produced evidence of the merger with Peak North

through a certificate of merger, and Wilkinson has produced no evidence to

undermine the validity of this certificate. Furthermore, because Peak North merged

with Enerplus, Wilkinson’s argument that the district court erred in not considering

Enerplus’s failure to produce proof of the alleged assignment from Peak North

necessarily fails.

Second, no disputed issues of material fact exist as to the amount of the

overpayment from Enerplus to Wilkinson. The record shows that, in response to

Enerplus’s motion for summary judgment, Wilkinson never contested the amount of

the overpayment or provided proof contrary to the declarations and exhibits that

Enerplus produced. As the district court noted, “Wilkinson . . . did not serve any

discovery requests or deposition notices on [Enerplus] prior to the close of discovery.

With the time for discovery closed and having failed to pursue discovery, [Wilkinson]

cannot oppose summary judgment on the basis that discovery is not yet complete.”

Id. Wilkinson’s failure to serve discovery on Enerplus and subsequent failure to

present contrary evidence on the amount of the overpaymentmean that Wilkinson has

failed to satisfy his “obligat[ion] to meet proof with proof at the summary-judgment

stage.” Bolderson v. City of Wentzville, 840 F.3d 982, 986 (8th Cir. 2016). 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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