Gerald v. Jones

No. 23-522, Francis Kaess v. BB Land, LLC FILED June 6, 2025 Walker, Justice, dissenting, and joined by Justice Bunn: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA In this certified question proceeding, the majority opinion applies an implied duty to market to an oil and gas lease that contains an in-kind royalty provision. It goes on to hold that the requirements for the deductions of post-production expenses from Wellman1 and Tawney2 apply to the lease. With respect for my colleagues in the majority, I dissent. As explained below, the majority’s analysis does not withstand scrutiny primarily because it muddles the distinction between different types of leases. As a result, the majority effectively rewrites the leases to take money from the producers to give it to the royalty owners. But it is not the province of this Court to rewrite an oil and gas lease to 1 See Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001) (“If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.”). 2 See Syl. Pt. 10, Estate of Tawney v. Columbia Natural Res., 219 W. Va. 266, 633 S.E.2d 22 (2006) (“Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor’s royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post- production costs.”). 1 reflect the Court’s view of a fair bargain. We certainly would not go to such extreme measures to rewrite contracts in any other context.3 I would have held that for leases that contain an in-kind royalty provision, there is no implied duty to market arising from the lease/contract and the requirements of Wellman and Tawney for the deductions of post-production expenses are inapplicable. As explained below, an implied duty to market is only triggered when a royalty owner does not or cannot take physical possession of its royalty share of the production; when that occurs, the producer must market and sell the royalty owner’s share of the production to avoid waste and loss, and the producer may properly charge the royalty owner his share of any post-production costs. One of the most contentious legal issues in the oil and gas industry is the dispute concerning the deductibility of post-production costs from royalty payments owed to lessors.4 At the risk of oversimplification, most royalty clauses generally fall into one 3 When examining a contract in an employment dispute, this Court stated that: “Our task is not to rewrite the terms of contract between the parties; instead, we are to enforce it as written.” Fraternal Ord. of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d 712, 716 (1996). In the same way, we have held parties to a contract dispute involving an insurance policy to the plain language in the policy and noted that: “‘We will not rewrite the terms of the policy; instead, we enforce it as written.’” Auto Club Prop. Cas. Ins. Co. v. Moser, 246 W. Va. 493, 500, 874 S.E.2d 295, 302 (2022) (quoting Payne v. Weston, 195 W. Va. 502, 507, 466 S.E.2d 161, 166 (1995)). 4 See William T. Silvia, Slouching Toward Babel: Oklahoma’s First Marketable Product Problem, 49 Tulsa L. Rev. 583 (Winter, 2013) (outlining the “minefield of judicial interpretations among the major oil and gas-bearing states[,]” including West Virginia); 2 of two broad categories: “proceeds” royalty provisions, which provide for the mineral owner to receive a royalty consisting of a monetary share of the proceeds the producer receives from the sale of the oil and gas produced under the lease, and “in-kind” royalty provisions, which provide for the mineral owner to receive a royalty consisting of a portion of the physical oil and gas produced, tendered at the wellhead. This Court has stated that

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 24-2882 EPIC SYSTEMS CORPORATION, Plaintiff-Appellant, v. TATA CONSULTANCY SERVICES LIMITED and TATA AMERICA INTERNATIONAL CORPORATION, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 14-cv-748-wmc — William M. Conley, Judge. ____________________ ARGUED MAY 29, 2025 — DECIDED JUNE 4, 2025 ____________________ Before EASTERBROOK, BRENNAN, and SCUDDER, Circuit Judges. EASTERBROOK, Circuit Judge. A jury concluded that Tata Consultancy Services must pay Epic Systems $940 million: $240 million as compensation for the unauthorized use of con- fidential information and $700 million as punitive damages. After reducing the compensatory award to $140 million and the punitive award to $280 million, the district court entered 2 No. 24-2882 judgment on October 3, 2017. We affirmed the compensatory damages but held that the Constitution limits the punitive award to $140 million. 980 F.3d 1117 (7th Cir. 2020). On re- mand the district court denied Tata’s request to reduce puni- tive damages below $140 million. It entered a new judgment for a total of $280 million on July 12, 2022. We affirmed, con- cluding that Tata’s brazen and outrageous misconduct—steal- ing commercially valuable information and trying to prevent the theft’s discovery—justifies punitive damages of $140 mil- lion. No. 22-2420 (7th Cir. July 14, 2023) (nonprecedential dis- position). That did not end the dispute, however. Tata agreed to pay postjudgment interest on the compensatory damages from the 2017 judgment but insisted that postjudgment interest on punitive damages should run only from the 2022 judgment. About $6 million turns on the difference. The district court sided with Tata, 2024 U.S. Dist. LEXIS 171708 (W.D. Wis. Sept. 23, 2024), and Epic appealed. The controlling statute is 28 U.S.C. §1961(a), which pro- vides: “Interest shall be allowed on any money judgment in a civil case recovered in a district court.” The time at which postjudgment interest begins to run thus depends on the date of a “money judgment … recovered in a district court.” What happens when multiple judgments are recovered in the same case? Here there are two, one in 2017 and the other in 2022. The statute does not choose. An amount provided in the first judgment and removed from the second cannot be the basis of interest. So the Supreme Court held in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 836 (1990). But both the 2017 judgment and the 2022 judgment award $140 million No. 24-2882 3 in compensatory damages plus at least $140 million in puni- tive damages. Our 2020 opinion vacated the judgment and remanded, but we did not disapprove either the compensatory damages or the first $140 million of the punitive award. Long ago the Supreme Court said, when interpreting a predecessor to §1961(a), that “[t]he rights of parties are not to be sacrificed to the mere leier, and whether the language used was reversed, modified, or affirmed in part and reversed in part, is immate- rial. Equity looks beyond these words of description to see what was in fact ordered to be done.” Kneeland v. American Loan & Trust Co., 138 U.S. 509, 512 (1891). None of the modest changes to what is now §1961(a) produced by its recodifica- tion in 1948, and later amendments to alter the rate of interest, calls Kneeland’s approach into question. “[W]hat was in fact … done” in 2020 was to block any punitive award in excess of $140 million. The difference between vacatur and reentry, on the one hand, and modifying the 2017 judgment, on the other, is not material to the parties’ entitlements. Still, our 2020 opinion did not hold that a punitive award of $140 million is compulsory. It was possible that the district judge would reduce it on remand. Possible yes, probable no. The jury awarded Epic $700 mil- lion in punitive damages. The reason the judge cut the award to $280 million was a state law in Wisconsin that caps punitive damages at double the compensatory award. Wis. Stat. §895.043(6). (Epic’s claims rest on state law.) Seiing the judg- ment at the statutory maximum is inconsistent with a belief by the district judge that the award should be lower, let alone that the award should be less than half of the statutory cap. It was no surprise, therefore, when the district judge on remand 4 No. 24-2882 fixed punitive damages at $140 million, the maximum amount that this court held to be constitutionally permissible,

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MATTHEW BECKER; LAUREN No. 24-443 KUEHNE; ADAM CRISWELL; D.C. No. KRYSTAL CRISWELL; ALFEE DIXON; 3:21-cv-05185-JHC DONALD FINISTER Sr.; CHRISTOPHER HART; JASON KOVACK; RICKY LORENSIUS; HEATHER MAREK; MEMORANDUM* MICHAEL MARTIN; DAISEY MARTINEAR; GRACE MATEIAK; IAN MATEIAK; JOHN MELOPRIETO; TRAVIS NEUMAN; Doctor ARIEL NEUMAN; MICHELLE PAULINO; JOHN PAULINO; JAMES RAMPONI; LINDSEY RAMPONI; ERIC MCCANDLESS; PAIGE ROE; PAUL ROHRER; ANDREW SICAT; NICOYA SICAT; IAN LAUGHLIN; SHELLY LAUGHLIN; TAMMARA BOYLES; BOBBY BOYLES; LAIN SUPE; PETER BROWN; JEREMY SIERRA; ERICA SIERRA; DARIUS USMAN; KRISTEN ZABAGLO; DAVID WILSON, Plaintiffs - Appellants, v. TIG INSURANCE COMPANY; UNITED SPECIALTY INSURANCE COMPANY, a foreign insurer, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Defendants - Appellees. Appeal from the United States District Court for the Western District of Washington John H. Chun, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Appellants (“Homeowners”) appeal the dismissal of their case with prejudice under Federal Rule of Civil Procedure Rule 41(b) and several interlocutory rulings. We affirm the dismissal and do not consider Homeowners’ other claims because the dismissal was proper, foreclosing review of interlocutory rulings. A dismissal under Rule 41(b) is reviewed for abuse of discretion. Al- Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996). “The trial court's dismissal will only be disturbed if there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Pagtalunan v. Galaza, 291 F.3d 639, 640-41 (9th Cir. 2002) (internal quotation marks omitted). This court weighs five factors to decide whether dismissal for failure to ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 24-443 prosecute or comply with a court order is proper. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). They are: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. There must be “unreasonable delay” before dismissal is proper. In re Eisen, 31 F.3d 1447, 1451 (9th Cir.1994). “A reviewing court will give deference to the district court to decide what is unreasonable because it is in the best position to determine what period of delay can be endured before its docket becomes unmanageable.” Id. (internal quotation marks omitted). The district court did not abuse its discretion by dismissing Homeowners’ action. The district judge made detailed findings regarding each factor. Because the facts are familiar to the parties, we reference them only as they are relevant to the decision. The first factor—the public’s interest in expeditious resolution of litigation— strongly favored dismissal. Homeowners exhibited a pattern of noncompliance with deadlines. Failure to comply with the court’s orders or the Federal Rules of Civil Procedure provides grounds for dismissal under Rule 41(b). Fed. R. Civ. P. 41(b). Homeowners argue that they missed these deadlines in good faith, but a showing of bad faith is not required under the court’s inherent power to dismiss for lack of 3 24-443 prosecution under Rule 41(b). See Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir. 1986). The second factor—the district court’s need to manage its docket—also strongly favored dismissal. Plaintiffs’ repeated failures to meet deadlines undermined efficient management of the district court’s docket. See Pagtalunan, 291 F.3d at 642. The third factor—the risk of prejudice to Appellee TIG Insurance Company (“TIG”)—also strongly favored dismissal. TIG suffered prejudice because Homeowners interfered with

Case: 24-20386 Document: 102-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 10, 2025 No. 24-20386 Lyle W. Cayce ____________ Clerk In the Matter of National CineMedia, L.L.C. Debtor, Cinemark Media Incorporated; Cinemark USA, Incorporated, Appellants, versus National CineMedia, L.L.C., Appellee, __________________________________________________ In the Matter of National CineMedia, L.L.C. Debtor, Cinemark USA, Incorporated, Appellant, versus National CineMedia, L.L.C., Case: 24-20386 Document: 102-1 Page: 2 Date Filed: 06/10/2025 Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC Nos. 4:23-CV-2414, 4:23-CV-2485 ______________________________ Before Jones, Southwick, and Oldham, Circuit Judges. Per Curiam: * This court has carefully considered this appeal in light of the briefs, oral argument, and pertinent portions of the record. Having done so, we substantially adopt the analysis of the district court’s opinion, which affirmed the bankruptcy court’s rulings. 1 Accordingly, the Most Favored Nations (“MFN”) clause in Cinemark’s Exhibitor Services Agreements (“ESA”) with the debtor National CineMedia LLC (“NCM”) was not triggered by Regal’s entry into a Network Affiliate Transaction Agreement (“NATA”) with NCM. The MFN clause in Cinemark’s ESA provided it the right to match the terms of an “agreement, amendment or extension” between Regal and NCM “which amends any term” of Regal’s ESA. Regal, while itself a debtor in bankruptcy, terminated its ESA with NCM through a Termination Settlement Agreement (“TSA”). Regal then entered into the NATA with NCM. The TSA did not amend any term of Regal’s ESA because it _____________________ * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. 1 This court reviews the NCM bankruptcy court’s “Settlement Order” under Bankruptcy Rule 9019 for abuse of discretion. In re Moore, 608 F.3d 253, 257 (5th Cir. 2010). No abuse occurs unless the court made an error of law or clear error of fact. In re Yorkshire, LLC, 540 F.3d 328, 331 (5th Cir. 2008). Case: 24-20386 Document: 102-1 Page: 3 Date Filed: 06/10/2025 terminated the ESA, whereas “amend” contemplates modification of an ESA’s term that nevertheless preserves the agreement’s existence. The NATA did not amend any term of Regal’s ESA because the TSA had terminated Regal’s ESA, and the ESA must exist for the NATA to amend any of its terms. The MFN clause in Cinemark’s ESA was not triggered. 2 The judgments of the bankruptcy and district courts are AFFIRMED. _____________________ 2 NCM and AMC, the other party to the appeal, agreed to dismiss the appeal as to AMC by a joint motion for dismissal.

USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 1 of 14 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 23-1733 J.H., by and through their Guardian Ad Litem, Erica Chambers; E.H., by and through their Guardian Ad Litem, Erica Chambers; ERICA CHAMBERS, individually, Plaintiff - Appellees, v. HARFORD MUTUAL INSURANCE GROUP, INC., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:21-cv-00856-LPA) Argued: March 18, 2025 Decided: August 8, 2025 Before HEYTENS and BERNER, Circuit Judges, and John A. GIBNEY, JR., Senior United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: William A. Bulfer, Asheville, North Carolina, Daniel Thomas Strong, TEAGUE CAMPBELL DENNIS & GORHAM, LLP, Raleigh, North Carolina, for Appellants. Coleman Cowan, LAW OFFICES OF JAMES SCOTT FARRIN, Durham, North Carolina, for Appellees. ON BRIEF: Kaitelyn E. Fudge, LAW OFFICES OF JAMES SCOTT FARRIN, Durham, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 2 of 14 PER CURIAM: Erica Chambers was driving with her two minor children on the highway in North Carolina when they were hit by a truck owned by Big Boss Construction, Inc. After bringing suit against Big Boss and several other parties involved in the accident, Chambers filed a declaratory judgment action to establish that Big Boss’s $2 million commercial excess insurance policy—issued by Harford Mutual Insurance Group, Inc.—provided coverage for the accident. The district court sided with Chambers and concluded that the accident fell within the scope of the policy’s coverage. The district court further determined that Chambers and her children were entitled to pre- and post-judgment interest under the policy. We affirm both rulings. I. Background 1 On October 27, 2018, Erica Chambers and her children were severely injured in an automobile accident as they drove south on North Carolina Highway 49. A truck owned by Big Boss Construction, Inc. crossed the center of the highway and struck Chambers head on. The driver of the truck was unauthorized to operate a motor vehicle, as he lacked a valid driver’s license. The parties agree that at the time of the accident, the driver was an agent of Big Boss acting within the scope of his employment. The driver was on his way 1 In the litigation agreement discussed infra, the parties “agree[d] that all facts and conclusions of law pled in the Second Amended Complaint in the Underlying Litigation are deemed admitted” for the purpose of this declaratory judgment action. J.A. 207. We thus recite the facts as alleged in that complaint. 2 USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 3 of 14 to complete a job for a different company, NC Champions Construction, Inc., which was using the truck with Big Boss’s permission. Chambers and her children incurred astronomical medical bills as a result of the accident. Chambers spent 34 days in the hospital recovering from broken bones throughout her body. She endured multiple surgeries and remains under medical care for her injuries, some of which are permanent. One of Chambers’s children suffered a head injury and continues to experience memory problems. Her other child suffered a broken leg. In total, the family’s medical bills have exceeded $500,000. Chambers and her children (collectively, Chambers 2) filed suit in North Carolina state court against the driver, Big Boss, and NC Champions. The suit alleged, among other claims, that Big Boss was liable for negligently entrusting its truck to the driver. At the time of the accident, Big Boss carried multiple insurance policies, including a commercial excess umbrella policy (the Excess Policy) issued by Harford Mutual Insurance Group, Inc. The Excess Policy had a liability limit of $2 million. It co