TOTAL E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc.

RESPONSE in Opposition to 225 MOTION for Partial Summary Judgment on Damages

S.D. Tex.February 21, 2019

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOTAL E&P USA, INC. Plaintiff/Counter-Defendant v. MARUBENI OIL & GAS (USA) INC. Defendant/Counter-Claimant § § § § § § § § § CIVIL ACTION NO. 4:16-CV-2671 JUDGE NANCY ATLAS TOTAL E&P USA, INC.’s Response to MOGUS’s Motion for Partial Summary Judgment on Damages To assure preservation of rights to appeal, TOTAL E&P USA, INC. (“Total”) opposes the motion for partial summary judgment on damages filed by Marubeni Oil & Gas (USA) LLC (“MOGUS”). See Dkt. 225. Total continues to assert and maintain its position that, as a matter of law, it is not liable to share in the costs of decommissioning, for the reasons stated in its motions for summary judgment and related briefing. See, e.g., Dkt. 97 (Total’s Motion for Summary Judgment Regarding Contract Claims); Dkt. 98 (Total’s Motion for Summary Judgment Due to Satisfaction); Dkt. 172 (Total’s Objections to the Report & Recommendation on Cross Motions for Summary Judgment). Additionally, even if Total is liable for decommissioning costs, Total continues to assert and maintain its position that MOGUS’s damages should be reduced: (1) because Total is not liable for the costs of hydrate remediation; (2) by the value of the overriding royalty interest MOGUS received in the ATP bankruptcy; and (3) because MOGUS could Case 4:16-cv-02671 Document 226 Filed on 02/21/19 in TXSD Page 1 of 4 2 have avoided all abandonment costs by conveying CEPS to Shell or by requesting supplemental bonding by ATP. See, e.g., Dkt. 187 (Total’s Advisory Notice on Damages Issues for Trial); Dkt. 195 (Total’s Response to MOGUS’s Motion in Limine as to Issues Identified in Total’s Advisory Notice); Dkt. 196 (Total’s Response to MOGUS’s Supplemental Motion in Limine to Exclude Expert Testimony). Total nonetheless recognizes and respects the fact that the Court has considered and rejected these arguments. See Dkt. 181 (granting MOGUS’s motion for partial summary judgment on liability and granting in part and denying in part Total’s motions for summary judgment); Dkt. 206 (granting in part MOGUS’s motion in limine and supplemental motion). In light of the Court’s rulings, Total has worked in good faith and in cooperation with MOGUS towards the filing of the Amendment to the Joint Pretrial Order. See Dkt. 224. Under the constraints of this Court’s prior rulings, and as noted in the Amendment to the Joint Pretrial Order, there remains no dispute of material fact that Total’s 25.834% share of decommissioning costs incurred as of June 30, 2017 is $12,677,584, exclusive of interest, attorneys’ fees, and litigation costs.1 Total nonetheless respectfully maintains its objection to entry of summary judgment on damages on the foregoing, prior bases. 1 As noted in the Amendment to the Joint Pretrial Order, the parties reserve the right to jointly amend this amount based on further agreements between their accounting experts. Dkt. 224 at 2 n.1. Case 4:16-cv-02671 Document 226 Filed on 02/21/19 in TXSD Page 2 of 4 3 Dated: February 21, 2019. Respectfully submitted, /s/ Charles Eskridge Charles Eskridge Texas Bar No. 06666350 charleseskridge@quinnemanuel.com Karl Stern Texas Bar No. 19175665 karlstern@quinnemanuel.com Christopher Porter chrisporter@quinnemanuel.com Texas Bar No. 24070437 Kate Kaufmann Shih Texas Bar No. 24066056 kateshih@quinnemanuel.com Carl Hennies Texas Bar No. 24104029 carlhennies@quinnemanuel.com QUINN EMANUEL URQUHART & SULLIVAN, LLP 711 Louisiana St., Suite 500 Houston, Texas 77002 713.221.7000 – Telephone 713.221.7100 – Facsimile Philip G. Eisenberg Texas Bar No. 24033923 peisenberg@lockelord.com Alicia Castro acastro@lockelord.com Texas Bar No. 24069705 LOCKE LORD LLP 600 Travis St., Suite 2800 Houston, Texas 77002 713.226.1200 – Telephone 713.223.3717 – Facsimile ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT TOTAL E&P USA, INC. Case 4:16-cv-02671 Document 226 Filed on 02/21/19 in TXSD Page 3 of 4 4 CERTIFICATE OF SERVICE A copy of the foregoing response was served on all counsel of record via CM/ECF on February 21, 2019. /s/ Carl Hennies Carl Hennies Case 4:16-cv-02671 Document 226 Filed on 02/21/19 in TXSD Page 4 of 4