United States District Court, W.D. Louisiana, Shreveport Division
PARDEE MINERALS, LLC, ET AL.
L. HORNSBY Judge Mag
A. DOUGHTY JUDGE.
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.
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
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
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
answered and filed cross claims against the other Defendants.
The other Defendants have also answered.
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.
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 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.
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.
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 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).
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 ...