Avery v. E&M Services, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Braxton Avery,
Plaintiff,
vs.
E&M Services, LLC and John Does 1-25,
Defendant and Third-Party Plaintiff,
vs.
Equinor US as successor in interest to Statoil
Inc.,
Third-Party Defendant and Fourth-
Party Plaintiff,
vs.
Eklipse Resources, LLC, and United
Specialty Insurance Company,
Fourth-Party Defendants.
Case No. 1:18-cv-00258
ORDER GRANTING MOTION FOR ENTRY OF JUDGMENT AGAINST USIC;
GRANTING MOTION FOR ENTRY OF JUDGMENT AGAINST EQUINOR, AND
GRANTING MOTION FOR ADDITIONAL ATTORNEY’S FEES AND COSTS
INTRODUCTION
[¶1] 	THIS MATTER comes before the Court on three motions. First, Equinor Energy, LP
(“Equinor”) filed a Motion for Entry of Judgment under Rule 54(b) of the Federal Rules of Civil
Procedure on June 22, 2023. Doc. No. 212. United Specialty Insurance Company (“USIC”) filed
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a Response on July 6, 2023. Doc. No. 216. Equinor did not file a Reply. For the reasons set forth
below, this Motion is GRANTED.
[¶2] 	Second, E&M Services, LLC, (“E&M”) filed a Motion for Entry of Judgment under Rule
54(b) Against Equinor on July 13, 2023. Doc. No. 220. Equinor filed a Response on July 21, 2023.
Doc. No. 227. E&M filed a Reply on August 4, 2023. Doc. No. 231. The Reply was subsequently
corrected on October 9, 2023. Doc. No. 242. For the reasons set forth below, this Motion is
GRANTED.
[¶3] 	Third, Equinor filed a Motion for Additional Attorney’s Fees and Costs on September 19,
2023. Doc. No. 235. USIC filed a Response on October 10, 2023. Doc. No. 243. Equinor filed a
Reply on October 17, 2023. For the reasons set forth below, this Motion is GRANTED.
[¶4] 	The Court will address the first and third motions together, then it will address the second
motion separately.
DISCUSSION
I. 	Equinor’s Motions for Entry of Judgment and Additional Attorney’s Fees and Costs.
[¶5] 	On May 30, 2023, the Court entered an Order to tax Eklipse Resources, LLC (“Eklipse”)
and USIC attorneys fees and costs totaling $312,992.80 as an award to Equinor and E&M. The
Motion for Entry of Judgment has been filed to preserve the parties appellate rights as to the
Court’s ruling. The Parties have provided no basis for the Court to reconsider that prior ruling.
Accordingly, Equinor’s Motion for Entry of Judgment (Doc. No. 212) is GRANTED.
[¶6] Since the Court’s ruling, Equinor has filed a Motion to recover additional attorneys
fees and costs in the amount of $31,032.00 that it has incurred since January 1, 2023. Doc.
Nos. 235 and 244. USIC continues to dispute this amount based upon the same reasons it
disputed the original award of $312,992.80. For the same reasons previously determined by
the Court (Doc. No. 211), Equinor's Motion for Additional Attorney's Fees and Costs
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(Doc. No. 235) is GRANTED. Accordingly, judgment shall be entered awarding Equinor an
amount of attorney’s fees and costs totaling $344,024.80 against Eklipse and USIC.
II. E&M’s Motion for Entry of Final Judgment Against Equinor
[¶7] E&M moves for an entry of final judgment against Equinor, seeking an amount equal to
the attorney’s fees, costs, and expenses incurred to defend E&M in this action as well as the
amount E&M paid to Plaintiff to settle Plaintiff’s claims against E&M. As grounds, E&M
claims it only sued Equinor for indemnification, not Eklipse. Doc. No. 221, p. 5. Equinor
argues the proposed judgment is inconsistent with the Court’s prior rulings on summary
judgment. Doc. No. 227. E&M contends the proposed judgment is consistent with the Court’s
prior orders because the Court granted E&M’s Motion for Summary Judgment seeking
defense and indemnification from Equinor. To a certain extent, the Court agrees with both
parties.
[¶8] This issue has been decided. Relevant here, the Court previously concluded:
E&M has largely supported and adopted all of Equinor’s positions in this litigation
pertaining to Eklipse’s indemnification, defense, and insurance coverage. However,
it seeks an Order from the Court finding Equinor has a duty to defend and indemnify
against Avery’s claim. In its Response to E&M’s Motion, Equinor maintains if the
Court finds Eklipse has a duty to defend and indemnify both Equinor and E&M, it
has no opposition to the Court granting E&M’s Motion. Such is the case here. The
Court has found Eklipse has a duty to defend and indemnify both Equinor and E&M
through the Equinor/Eklipse MSA, which trumps any duty to defend and and
indemnify Equinor may have for E&M. As a result of granting Equinor’s Motion,
the Court will likewise grant E&M’s Motion.
Doc. No. 149, ¶ 69.
[¶9] 	Equinor previously had no objection to the Court granting E&M’s Motion for Summary
Judgment against Equinor because ultimately Eklipse, through USIC, would have to pay to defend
and indemnify E&M. The Court has reviewed the record and the amount proposed by E&M is
reasonable under the circumstances. Accordingly, based upon the Court’s prior Order granting of
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summary judgment in favor of E&M against Equinor, judgment should be entered on this issue in
favor of E&M against Equinor in the amount of $96,066.191 in costs, fees, and as well as $390,000
to settle its claims with the Plaintiff as evidenced by the loan documentation in the record. Doc.
No. 239-1.
[¶10] 	The Court, however, recognizes this is ultimately circular given the Court’s prior rulings.
The loan was issued to E&M from USIC. Doc. No. 239-1. The Court previously found Eklipse
through USIC responsible for providing the defense and indemnification to both E&M and
Equinor. Doc. No. 149. Putting all of this together, Eklipse, through USIC, is responsible for
reimbursing Equinor and E&M for the total amount to defend and indemnify in this case, despite
the fact that the judgment will appear to award E&M its costs, fees, and settlement loan from
Equinor. In other words, Eklipse through USIC is still required, as a matter of law, to defend and
indemnify E&M for these amounts. See Doc. No. 149. Accordingly, E&M’s Motion is
GRANTED. Accordingly, judgment will be entered in favor of E&M against Equinor in the
amount of $96,066.19 for attorney’s fees and $390,000 in reimbursement for the settlement
E&M’s dispute with the Plaintiff for a total of $486,066.19.
CONCLUSION
[¶11] 	For the foregoing reasons, Equinor’s Motion for Entry of Judgment under Rule 54(b) of
the Federal Rules of Civil Procedure and Motion for Additional Attorney’s Fees and Costs are
GRANTED and E&M’s Motion for Entry of Judgment under Rule 54(b) Against Equinor is
GRANTED. The Clerk of Court is directed to enter judgment awarding Equinor an amount of
1 This is the number noted in briefing by E&M. Doc. No. 221, p. 3. The affidavit and billing
invoices, however, indicate a total of $96,734.78 (Doc Nos. 222, 223, 224), whereas the loan
documentation shows the total for fees, costs, and disbursements as $94,834.79. Because the
dispute centers around whether judgment should be entered at all rather than a challenge to the
actual number, the Court adopts the total for attorney’s fees and costs as noted in the briefing.
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attorney’s fees and costs totaling $344,024.80 against Eklipse and USIC. The Clerk of Court is
also directed to enter judgment in favor of E&M against Equinor in the amount of $96,066.19 for
attorney’s fees and $390,000 in reimbursement for the settlement E&M’s dispute with the Plaintiff
for a total of $486,066.19.
[¶12] IT IS SO ORDERED.
DATED January 17, 2024.
Daniel M. Traynor, District Judge
United States District Court
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