Grynberg v. Total Compagnie Francaise Des Petroles

• Citation: 891 F.Supp.2d 663
• Decision Date: 18 September 2012
• Docket Number: No. 10–1088–LPS.,10–1088–LPS.
• Parties: Jack J. GRYNBERG and Pricaspian Development Corporation, Plaintiffs, v. TOTAL COMPAGNIE FRANCAISE DES PETROLES, Total Fina Elf, S.A., Total S.A., Royal Dutch Petroleum Company, Shell Transport and Trading Co., P.L.C., Shell Petroleum N.V., Shell Exploration B.V., and Shell International Exploration and Production B.V. f/k/a Shell Internationale Petroleum Maatschappij B.V., Defendants.
• Court: U.S. District Court — District of Delaware

891 F.Supp.2d 663

Jack J. GRYNBERG and Pricaspian Development Corporation, Plaintiffs,

v.TOTAL COMPAGNIE FRANCAISE DES PETROLES, Total Fina Elf, S.A., Total S.A., Royal Dutch Petroleum Company, Shell Transport and Trading Co., P.L.C., Shell Petroleum N.V., Shell Exploration B.V., and Shell International Exploration and Production B.V. f/k/a Shell Internationale Petroleum Maatschappij B.V., Defendants.

No. 10–1088–LPS.

United States District Court,

D. Delaware.

Sept. 18, 2012.

Richard A. Barkasy, Esq., Schnader Harrison Segal & Lewis LLP, Wilmington, DE. David Smith, Esq. and Stephen A. Fogdall, Esq., Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, for Plaintiffs.

Collins J. Seitz, Jr., Esq., Bradley R. Aronstam, Esq., Seitz Ross Aronstam & Moritz LLP, Wilmington, DE, Graham Kerin Blair, Esq., David A. Brakebill, Esq., Andrew C. Biberstein, Esq., Baker & McKenzie LLP, Houston, TX, Phillip B. Dye, Jr., Esq. and Jennifer H. Davidow, Esq., Vinson & Elkins LLP, Houston, TX, for Defendants Royal Dutch Petroleum Company, Shell Transport and Trading Co., P.L.C., Shell Petroleum N.V., Shell Exploration B.V., and Shell International Exploration and Production B.V. f/k/a/ Shell International Petroleum Maatschappij B.V.

Kevin J. Mangan, Esq., Womble Carlyle Sandrige & Rice, PLLC, Wilmington, DE. John Bowman, Esq., Jennifer Price, Esq., Kevin Clark, Esq., King & Spalding LLP, Houston, TX, for Defendant Total, S.A.

MEMORANDUM OPINION

STARK, District Judge:

Plaintiffs Jack Grynberg (“Grynberg”) and Pricaspian Development Corporation (“PDC”) (collectively, “Plaintiffs”) brought this lawsuit against defendants Total S.A. (“Total”) ¹ and Royal Dutch Petroleum Company, Shell Transport and Trading Co., P.L.C., Shell Petroleum N.V., Shell Exploration B.V., and Shell International Exploration and Production B.V. f/k/a/ Shell International Petroleum Maatschappij B.V. (collectively, “Shell” and, together with Total, hereinafter, “Defendants”) to recover Plaintiffs' purported share of revenue from Kazakh oil fields allegedly discovered by Grynberg.

Pending before the Court are multiple motions: Defendants' Motions to Take Judicial Notice (D.I. 13; D.I. 19; D.I. 31), Plaintiffs' Motions for Leave to File Surreplies (D.I. 42; D.I. 43; D.I. 44), Plaintiffs' Motion to Strike (D.I. 26), Defendants' Motions to Dismiss (D.I. 11; D.I. 15; D.I. 17), and Defendants' Motions for Sanctions (D.I. 56; D.I. 65).

For the reasons set forth below, the Court will grant Defendants' Motions to Take Judicial Notice, grant Plaintiffs' Motions for Leave to File Surreplies, deny Plaintiffs' Motion to Strike, grant in part and deny in part Defendants' Motions to Dismiss, and grant Defendants' Motions for Sanctions.

BACKGROUND²

I. The Parties

Grynberg has been engaged in the international petroleum industry for over forty years. (D.I. 10 ¶ 18) PDC is a Texas corporation headquartered in Denver, Colorado. ( Id. ¶ 17) PDC is the assignee of a substantial portion of Grynberg's alleged rights relating to the instant claims. ( Id.)

Total is incorporated under the laws of France: and operates a vertically integrated enterprise to supply energy, chemicals, and other products throughout the world. ( Id. ¶ 19) Shell operates a vertically integrated enterprise to supply oil, natural gas, and other products throughout the world. ( Id. ¶ 20)

II. Factual Background

In 1989, the Chairman of the Attestation Committee of the Union of Soviet Socialist Republics invited Grynberg to Moscow to review “secret Soviet seismic data” from the Caspian Sea, as well as data from onshore sites in Northwestern Kazakhstan. ( Id. ¶¶ 37–38) In November 1989, Grynberg traveled to Moscow and spent one week reviewing the seismic data. ( Id. ¶ 38) From his analysis of the information, Grynberg mapped a Carboniferous reef in the Northeastern Caspian Sea, close to shore. ( Id.) Grynberg refers the mapped area as the Greater Kashagan to Oil Fields (“GKOF”). ( Id. ¶ 28)

Later, in November 1989, at the request of the United States Department of State, Grynberg gave a tour to a Kazakh delegation of his cattle feeding operations located near Denver, Colorado. ( Id. ¶ 39) The delegation was led by the then-First Secretary of Kazakhstan, Nursultan Abishevich Nazarbaev. ( Id.) During a dinner Grynberg hosted at his home for the delegation, Nazarbaev invited Grynberg and his team to visit Kazakhstan to consider a potential investment in oil, natural gas, and mining. ( Id.) In response to Nazarbaev's invitation, in February 1990 Grynberg brought two teams to Kazakhstan. ( Id. ¶ 40) One team studied Kazakhstan's oil and natural gas fields while the other team studied mining opportunities. ( Id.) Grynberg's trip to Kazakhstan confirmed his belief that the GKOF had significant potential for oil and natural gas production. ( Id. ¶ 41)

In July 1990, Grynberg met with representatives often Western oil companies, including Total and Shell, in an attempt to form a consortium to develop and produce the GKOF. ( Id. ¶ 45) On July 20, 1990, Total accepted Grynberg's proposal to establish a joint venture pursuant to which Total agreed to pay Grynberg a net twenty percent profits interest. ( Id. ¶ 47) Grynberg alleges that, thereafter, Total used Grynberg's confidential information and political contacts to acquire an interest in the GKOF without involving Grynberg. ( Id. ¶¶ 50–51)

Also in July 1990, Grynberg met with Shell representatives in his Denver office. ( Id. ¶ 53) Grynberg presented his seismic data to the Shell representatives, and the Shell representatives agreed to enter into a “joint venture” with Grynberg to develop the GKOF. ( Id.)

In June 1993, a Total subsidiary, Shell, and other oil companies entered into a Preliminary Consortium Agreement (“PCA”) with Kazakhstan, thereby forming the “North Caspian Sea Consortium” (“Consortium”). (D.I. 12 ¶ 13) Grynberg was not involved in the PCA. ( Id.) In December 1993, the same parties, again without Grynberg, signed a Consortium Agreement, granting rights to explore the Kazakh sector of the North Caspian Sea for hydrocarbons. ( Id.) In November 1997, the members of the Consortium entered into a Production Sharing Agreement (“PSA”) with the Kazakh government. ( Id.) The PSA granted Consortium members the right to develop and produce hydrocarbons in certain blocks in the Kazakh sector of the North Caspian Sea, including the GKOF. ( Id.)

Grynberg alleges that Defendants were only able to join the PSA due to their participation in a conspiracy spearheaded by James Giffen, an oil consultant and purported agent of the United States Government. (D.I. 10 ¶¶ 63–66) Grynberg claims that Giffen assisted in negotiating the PSA among the members of the Consortium, including Total and Shell, and the Kazakh government. ( Id. ¶ 64) According to Grynberg, the agreement was only possible as a result of the Consortium's payment of a $175 million dollar bribe to Kazakh officials. ( Id. ¶ 65) Grynberg asserts that the bribe permitted the Consortium members to obtain the concession to develop the GKOF, thereby stealing Grynberg's original discovery. ( Id.)

III. Prior LitigationA. The Colorado Actions³

In 2003, Grynberg, Grynberg Production Corporation, and Grynberg Petroleum Company sued Total in the United States District Court for the District of Colorado. ( See D.I. 12, Ex. 9) Grynberg simultaneously brought identical claims in the District of Colorado against Shell.⁴ (D.I. 18 at 4) Among other claims, Grynberg alleged that Total and Shell breached fiduciaryduties owed to the plaintiffs in the Colorado Actions and were unjustly enriched when they appropriated the plaintiffs' original confidential information regarding the GKOF. ( Id. at 4–5; D.I. 12 at 5) The Colorado plaintiffs sought damages equal to a twenty percent net profits share of Total's and Shell's interests under the PSA, as well as a constructive trust and an accounting. (D.I. 12 ¶ 16 & Ex. A–9 ¶¶ 42–44; D.I. 18 at 4–5)

In 2006, the District Court in Colorado granted summary judgment in favor of the defendants in both Colorado Actions on the basis that Grynberg's claims were time-barred under the Colorado statute of limitations. See Grynberg v. Shell Exploration B.V., 433 F.Supp.2d 1229 (D.Colo.2006); Grynberg v. Total, 2006 WL 1517731 (D.Colo. May 31, 2006). On consolidated appeal, the Tenth Circuit affirmed both rulings. See Grynberg v. Total S.A., 538 F.3d 1336 (10th Cir.2008). On March 9, 2009, the U.S. Supreme Court denied the Colorado plaintiffs' petition for a writ of certiorari. See Grynberg v. Total S.A., ––– U.S. ––––, 129 S.Ct. 1585, 173 L.Ed.2d 677 (2009).

B. The New York Actions

Following the Tenth Circuit's decision, PDC filed suits against Royal Dutch Shell, p.l.c. (“RDS”) and Total in the United States District Court for the Southern District of New York.⁵ (D.I. 12 ¶ 18; D.I. 18 at 6) In the New York Actions, PDC sought a declaratory judgment that it was entitled to share in the profits from RDS's and Total's interest in the GKOF. (D.I. 12 ¶ 18; D.I. 18 at 6) The District Court held that PDC's claims were time-barred and barred under the doctrine of res judicata. See Pricaspian Dev. Corp. v. Total S.A., 2009 WL 4163513 (S.D.N.Y. Nov. 25, 2009); Pricaspian Dev. Corp. v. Royal Dutch Shell, 2009 WL 1564110 (S.D.N.Y. June 3, 2009). Accordingly, both suits were dismissed with prejudice. On appeal, the Second Circuit affirmed the dismissals in separate summary orders. See Pricaspian Dev. Corp. v. Total S.A., 397 Fed.Appx. 673 (2d Cir.2010); Pricaspian Dev. Corp. v. Royal Dutch Shell, PLC, 382 Fed.Appx. 100 (2d Cir.2010).

IV. Procedural Background

Plaintiffs filed the instant suit in this District on December 10, 2010. (D.I. 1) (hereinafter, the “Original Complaint”) Plaintiffs' Original Complaint asserted claims of unjust enrichment, misappropriation of trade secrets, breach of contract, and breach of fiduciary duty. On March 16, 2011, Plaintiffs filed an amended complaint, dropping each of...