Total E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc. et alRESPONSE in Opposition to 241 MOTION to Open and Close Argument and Evidence at TrialS.D. Tex.January 23, 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-2674 JUDGE VANESSA GILMORE Total’s Response to MOGUS’s Motion to Open and Close Argument and Evidence at Trial It is well-established that the order of presentation at trial rests within the sound discretion of the district court. Moreau v. Oppenheim, 663 F.2d 1300, 1311 (5th Cir. 1981) (“The matter of a court’s allocation of the right to open and close ... does not go to the merits of a controversy and has long not been the subject of writ of error.”). The Court should reject MOGUS’s motion to open and close argument and evidence at trial. First, MOGUS’s characterizations of burden do not accord with its own requested jury instructions. In its motion, MOGUS repeatedly argues that the Court should realign the parties because MOGUS “will bear the burden of proof at trial.” Dkt. 241 at 2; see also id. at 1, 3, 4, 5, 8. Yet when submitting proposed jury instructions, MOGUS claims that the “Burden of Proof” instruction “should be mutual,” while requesting an instruction that “[e]ach party has the burden of proving its claims and defenses by a preponderance of the evidence.” Dkt. 254-8 at 14 (emphases added). As Total notes in its pretrial papers, the law does not fully support MOGUS’s position. Id. at 13. But Case 4:16-cv-02674 Document 255 Filed in TXSD on 01/23/19 Page 1 of 5 2 Total does acknowledge it bears the burden of establishing the amount that MOGUS’s damages should be reduced due to the overriding royalty interest MOGUS received in the ATP bankruptcy. Id. As another court in this district noted, “[t]he cases that discuss realignment outside the jurisdiction context make it clear that a court may deny realignment when both parties bear the burden of proof on different issues in the case.” Tesco Corp., (US) v. Varco I/P, Inc., 2006 WL 6625915, at *2 (S.D. Tex. Nov. 9, 2006). Since it is undisputed that both parties bear burdens on different issues, realignment in not warranted. Second, MOGUS’s apprehensions about “juror confusion” and “substantial prejudice” are misplaced. Dkt. 241 at 6–8. If Total presents first at trial, it will show, quite succinctly, that MOGUS has billed Total for $33 million to decommission MC 305. Indeed, the amount that has been billed is not itself the subject of genuine dispute—the amount billed simply is what it is. Instead, the main discussion with the jury will be Total’s asserted deductions, on which it should be entitled to proceed and first explain that: Nearly $20 million of those billed costs were unreasonable and unnecessary for decommissioning MC 305; The amount sought includes consideration MOGUS already received to defray the same costs it seeks from Total; The amount sought contains an array of discrete accounting errors; and MOGUS could have avoided its damages altogether if it had reasonably sought supplemental bonding from ATP. Case 4:16-cv-02674 Document 255 Filed in TXSD on 01/23/19 Page 2 of 5 3 In response to Total’s case, MOGUS will have the opportunity to present evidence that its bill to Total is not inflated, including specific responses to these asserted deductions. Nothing about that presentation is “backwards” or “disordered” or “confusing” or “prejudicial” or “unfair.” See Dkt. 241 at 6, 8. Indeed, what would be odd is for MOGUS to simply set out its own billed amount and then devote the lion’s share of its argument and evidence to simply rebutting what it anticipates will be Total’s evidence on and articulation of the above points. In short, the jury will better understand the evidence with the parties aligned as currently aligned. Conclusion The Court should deny MOGUS’s motion to open and close argument and evidence at trial. Case 4:16-cv-02674 Document 255 Filed in TXSD on 01/23/19 Page 3 of 5 4 Dated: January 23, 2019. Respectfully submitted, /s/ Charles Eskridge Charles Eskridge Texas Bar No. 06666350 charleseskridge@quinnemanuel.com Karl Stern Texas Bar No. 19175665 karlstern@quinnemanuel.com 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. 24033923 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-02674 Document 255 Filed in TXSD on 01/23/19 Page 4 of 5 5 CERTIFICATE OF SERVICE A copy of the foregoing response was served on all counsel of record via CM/ECF on January 23, 2019. /s/ Carl Hennies Carl Hennies Case 4:16-cv-02674 Document 255 Filed in TXSD on 01/23/19 Page 5 of 5
