     Case: 16-40214      Document: 00513675651         Page: 1    Date Filed: 09/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                Fifth Circuit

                                                                               FILED
                                    No. 16-40214                         September 13, 2016
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

JAMES CAZAMIAS; LOS PARIENTES JOINT VENTURE; MESQUITE OIL
& GAS, INCORPORATED,

               Plaintiffs - Appellants

v.

DEVON ENERGY PRODUCTION COMPANY, L.P.,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CV-00086


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Appellants, non-operator owners of working interests in two oil and gas
leases, brought an action in Texas state court seeking damages and declaratory
relief. They allege that Appellee Devon Energy Production Company (Devon),
failed to adhere to the parties’ Joint Operating Agreement (JOA) in its failure
to develop the leased area and to promptly plug a gas well that was no longer


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-40214    Document: 00513675651     Page: 2   Date Filed: 09/13/2016



                                 No. 16-40214
in operation. Devon has been the operator of the well in question since 2005.
Devon removed the case to federal court on the basis of 28 U.S.C. § 1332
diversity jurisdiction and brought a counterclaim against Appellants under
Texas Natural Resources Code section 89.081 to recover Appellants’
proportionate share of the plugging costs.
      In March 2015, Devon moved for summary judgment on both Appellants’
claims as well as its counterclaims. Regarding Appellants’ claims, Devon
argued that it was not subject to the JOA because the lease that was subject to
the JOA expired in 1999, which triggered the JOA’s termination before Devon
become the operator. Instead, Devon was initially covered by a different lease,
but that lease expired in 2007. Devon argued that its obligations regarding
plugging the well were therefore statutory rather than contractual. Devon
fulfilled its statutory obligations in 2012 when it plugged the well. As for its
counterclaims, Devon argued that it was entitled to recover under Texas
Natural Resources Code section 89.081, which provides for a private cause of
action against working interest owners who fail to pay their proportionate
shares of the costs for plugging a well.
      Appellants did not respond to either motion; after seven months, in
October 2015 the district court ordered Appellants to respond and warned
them that if they did not it would consider Devon’s motions unopposed
pursuant to S.D. Tex. Local Rule 7.4. Appellants still did not respond. On
January 6, 2016, the district court granted Devon’s motions for summary
judgment. On February 5, Appellants, through new counsel, moved for relief
from judgment under Federal Rules 59 and 60(b) and also filed a Notice of
Appeal. On March 3, 2016, the district court dismissed Appellants’ request for
Rule 59 relief on jurisdictional grounds because it was outside the statutory
period. The court deferred considering Appellants’ request for relief under
Rule 60(b) until their appeal is complete.
                                           2
    Case: 16-40214     Document: 00513675651      Page: 3   Date Filed: 09/13/2016



                                  No. 16-40214
      Appellants raise three issues: 1) whether the district court misapplied
Local Rule 7.4 in granting summary judgment for Devon; 2) whether the
district court properly granted summary judgment to Devon with regard to its
counterclaims; and 3) whether the district court should have granted them
relief on their Rule 60(b) motion.
                                        A.
      We review a district court’s grant of summary judgment de novo. Kemp
v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). A party is entitled to summary
judgment if “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(a)).
“A genuine issue of material fact exists if a reasonable jury could enter a verdict
for the non-moving party.” Id. (citation omitted). The court views the facts
and evidence in the light most favorable to the non-moving party. Id. This
court may affirm a grant of summary judgment on any grounds supported by
the record and presented to the district court. Cuadra v. Hous. Indep. Sch.
Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks
omitted).
                                        B.
      Appellants argue that the district court misapplied S.D. Tex. Local Rule
7.4 which states that a party’s failure to respond is a representation of
nonopposition. Appellants correctly point out that “the moving party has the
burden of establishing that there is no genuine dispute of material fact; and,
unless that party does so, a court may not grant the motion, regardless whether
any response is filed.” Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 550 (5th Cir.
2012); see also Hibernia National Bank v. Administracion Central Sociedad
Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985) (summary judgment motion
cannot be granted merely because no opposition has been filed, even though a
failure to respond violates a local rule).
                                         3
    Case: 16-40214    Document: 00513675651     Page: 4   Date Filed: 09/13/2016



                                 No. 16-40214
      But Appellants are mistaken in concluding that the district court treated
their nonopposition as a default. Rather, the district court properly reviewed
the evidence presented, and based on that evidence, found that Devon was
entitled to judgment as a matter of law. Appellants asserted that Devon
breached the JOA by failing to develop the leased land and by failing to timely
plug the gas well. Devon presented evidence that the JOA did not apply to
Devon because it had expired before Devon became the operator of the well.
On the basis of this evidence, we agree with the district court’s determination
that Devon was not subject to the JOA and therefore was entitled to judgment
as a matter of law with regard to Appellants’ claims. Further, we agree with
the district court’s grant of summary judgment in favor of Devon on its
counterclaims seeking recovery for Appellants’ share of the plugging costs.
Devon presented evidence that it paid for the plugging of the well, that
Appellants owned the remaining interest, and that Appellants had not
reimbursed Devon for the costs of plugging the well, triggering Appellants’
liability under Texas Natural Resources Code section 89.081. We therefore
find that the district court did not err in considering and granting Devon’s
motions for summary judgment.
                                       C.
      Appellants’ substantive arguments on appeal seeking reversal of the
district court’s grant of summary judgment on Devon’s counterclaims are
waived because they failed to challenge them in the district court. It is well
settled precedent in this circuit that the scope of appellate review of a summary
judgment order is limited to matters presented to the district court. Keelan v.
Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005). “If a party fails to
assert a legal reason why summary judgment should not be granted, that
ground is waived and cannot be considered or raised on appeal.” Vaughner v.
Pulito, 804 F.2d 873, 877 n. 2 (5th Cir. 1986). Appellants raised no arguments
                                       4
    Case: 16-40214     Document: 00513675651      Page: 5    Date Filed: 09/13/2016



                                  No. 16-40214
in opposition to summary judgment in the district court, and we thus do not
consider the arguments they advance for the first time on appeal.
                                        D.
      We do not have jurisdiction to decide whether Appellants are entitled to
relief under Rule 60(b) as that question is still pending before the district court.
See Lopez Dominguez v. Gulf Coast Marine & Associates, Inc., 607 F.3d 1066,
1074 (5th Cir. 2010) (noting that the district court retains jurisdiction to
consider and deny Rule 60(b) motions; alternatively if it indicates that it will
grant the motion, the appellant can move the court of appeals for a remand.);
see also FED. R. CIV. P. 62.1. Were the district court to deny their request for
relief under Rule 60(b), Appellants could appeal that decision. Ingraham v.
United States, 808 F.2d 1075, 1081 (5th Cir. 1987) (“Because the 60(b) motion
may be separately considered pending appeal, a denial of such a motion while
the appeal of the judgment is pending, is itself separately appealable.”). But
until then, their 60(b) motion is unripe for review.
                                        ***
      For the foregoing reasons, we AFFIRM the district court judgment. The
district court is now free to rule on Appellants’ Rule 60(b) motion.




                                         5
