       United States Court of Appeals
                  For the Eighth Circuit
              ___________________________

                      No. 17-3708
              ___________________________

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
                           ____________

          Appeal from United States District Court
         for the District of North Dakota - Bismarck
                         ____________
                           Submitted: October 15, 2019
                             Filed: January 14, 2020
                                  [Unpublished]
                                 ____________

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

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. Background2
      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

      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
      2
      The background section is taken in large part from our 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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whereby Peak North agreed to assign Wilkinson an overriding royalty interest (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
Dakota Northwest Division and such court shall 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.”

      4
       Attorney 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 from or 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’s registry.
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’s standing 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 approval from the 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

                                          -4-
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’s refusal 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 argues that (1) Enerplus lacks 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.”

                                         -5-
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 overpayment mean 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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