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

                                                                                   FILED
                                      No. 14-60310                             May 20, 2015
                                                   Lyle W. Cayce
JAMES A. WAGGONER; J.W.W. OIL AND GAS EXPLORATION,      Clerk
INCORPORATED,

              Plaintiffs–Appellants

v.

DENBURY ONSHORE, L.L.C.; DENBURY GULF COAST PIPELINES,
L.L.C.; DENBURY RESOURCES, INCORPORATED,

              Defendants–Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-257


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       James Waggoner owns a working interest in a carbon-dioxide well in
Mississippi entitling him to a percentage of the proceeds from Denbury
Resources, Incorporated’s sales of the carbon dioxide. Waggoner sued Denbury
and its subsidiaries for antitrust violations and civil conspiracy alleging that
Denbury sells the carbon dioxide to its subsidiaries at low prices to decrease


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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the royalties it has to pay. The district court granted summary judgment to
Denbury because Waggoner 1) lacked “antitrust injury” for standing purposes
and 2) failed to allege the elements of fraud, the underlying tort for his
conspiracy claim. We affirm.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      This case concerns royalty interests owned by Plaintiffs–Appellants
James Waggoner and his family-owned company, J.W.W. Oil and Gas
Exploration, Incorporated (collectively “Waggoner”). In 1984, J.W.W. acquired
an oil, gas, and mineral lease in Rankin County, Mississippi. Rankin County
is the location of a carbon-dioxide (CO2) formation known as the Jackson Dome.
      After Shell Western E&P, Incorporated successfully petitioned the
Mississippi State Oil and Gas Board to pool the interests in a large tract of
land including J.W.W.’s leases, J.W.W. entered into a Farmin Agreement with
Shell. Under the agreement, J.W.W. placed its 77 acres into the pooled unit
and received a 6.25% overriding royalty interest (ORRI) in the well until
payout. At payout, J.W.W. retained the option to convert the ORRI into a 40%
working interest. 1 The parties also executed an Operating Agreement that
provided that the price for CO2 would be the “volume weighted average price.”
When the well paid out, J.W.W. exercised its option to convert the ORRI into
a working interest. As a working-interest owner, J.W.W. was entitled to take
either its proportionate share of the CO2 or its proportionate share of the
volume-weighted average price of CO2 that Shell received in the area. J.W.W.
chose the latter and later sold this interest to Waggoner.




      1   Working interests are cost-bearing interests, unlike ORRIs.
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      Shell sold the field unit to Airgas Carbonic Enterprises. Shell also sold
several of its enhanced oil recovery (EOR) fields to J.P. Oil. EOR is a process
that uses CO2 to enhance oil output from older oil fields. Airgas and J.P. Oil
entered into a purchase agreement under which Airgas would sell CO2 to J.P.
Oil at an agreed-upon price for use at the EOR fields. They also agreed that
the treatment and transport costs would be borne by the owner of the field
unit. In 1999, J.P. Oil sold its fields to Defendant–Appellee Denbury Resources,
Incorporated. Denbury continued to purchase CO2 from Airgas under the
purchase agreement. In 2001, Airgas sold the field unit to Denbury. According
to Waggoner, this acquisition made Denbury the owner of “the entire carbon
dioxide supply in Mississippi.”
      In 2012, Waggoner sued Defendants–Appellees Denbury Onshore, LLC,
Denbury Gulf Coast Pipelines, LLC, and Denbury Resources, Incorporated
(collectively “Denbury”), for, inter alia, antitrust violations under Mississippi
Code Annotated §§ 75-21-1, 75-21-3(b), and 75-21-3(e) and civil conspiracy.
Waggoner alleges that “Denbury Onshore pays the royalty and working
interest owners in the Jackson Dome based upon the price Denbury Onshore
receives from the Denbury subsidiary for the CO2. Denbury then pipes the CO2
to oilfields . . . to be used by Denbury in tertiary oil recovery operations.”
Waggoner alleges that “Denbury Onshore ‘sells’ the CO2 to its subsidiary . . . at
an artificially low price . . . and pays its royalty owners based on that artificially
low price.”
      Denbury filed a Motion to Dismiss and for Summary Judgment. The
district court granted summary judgment to Denbury on the antitrust claims
for lack of antitrust standing and on the civil-conspiracy claim for failure
adequately to plead the underlying tort of fraud.
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                                     II. DISCUSSION
       The district court had diversity jurisdiction under 28 U.S.C. § 1332(a).
We have jurisdiction to review the district court’s final judgment pursuant to
28 U.S.C. § 1291.
       This Court reviews de novo a district court’s grant of summary judgment,
viewing “all facts and evidence in the light most favorable to the non-moving
party.” Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir.
2013). It applies the same standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
       Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
exists when the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396,
400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
A.     Antitrust
       A plaintiff has standing to pursue an antitrust suit only if he shows:
“1) injury-in-fact, an injury to the plaintiff proximately caused by the
defendants’ conduct; 2) antitrust injury; and 3) proper plaintiff status, which
assures that other parties are not better situated to bring suit.” Doctor’s Hosp.
of Jefferson, Inc. v. Se. Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir. 1997). 2



       2 Although the antitrust claim in this case was brought under Mississippi law, the
parties agree that Mississippi antitrust claims are “analytically identical” to federal antitrust
claims; therefore, Plaintiffs lack standing to maintain their Mississippi antitrust claim if they
lack standing under federal antitrust law. Thus, we analyze their claim under federal law.
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       The principal issue in this case is the second requirement, antitrust
injury, 3 which is
     injury of the type the antitrust laws were intended to prevent and
     that flows from that which makes the defendants’ acts unlawful.
     The injury should reflect the anticompetitive effect either of the
     violation or of anticompetitive acts made possible by the violation.
     It should, in short, be “the type of loss that the claimed violations
     . . . would be likely to cause.”
Brunswick Corp. v. Pueblo Bowl-O-Mart, Inc., 429 U.S. 477, 489 (1977)
(alteration in original) (quoting Zenith Radio Corp. v. Hazeltine Research, 395
U.S. 100, 125 (1975)). 4
       Typically, parties with antitrust injury are either competitors,
purchasers, or consumers in the relevant market. See, e.g., John J. Miles, 1
Health Care and Antitrust Law § 9:7 & n.30 (2014) (collecting cases). But
standing is not necessarily limited to this group. See Blue Shield of Va. v.
McCready, 457 U.S. 465, 472 (1982) (“As we have recognized, ‘[§ 4 of the
Clayton Act] does not confine its protection to consumers, or to purchasers, or
to competitors, or to sellers . . . .’” (quoting Mandeville Island Farms, Inc. v.



       3  This antitrust injury requirement of antitrust standing is sometimes confused with
“injury to competition[,] . . . which is often a component of substantive liability.” Doctor’s
Hosp., 123 F.3d at 305. In the standing context, injury “should be viewed from the perspective
of the plaintiff’s position in the marketplace, not from the merits-related perspective of the
impact of a defendant’s conduct on overall competition.” Id. In this opinion, “antitrust injury”
refers only to the antitrust standing requirement.
        4 Both the district court and Waggoner’s brief quote the following from Bell v. Dow

Chemical Co.: “In making the determination, courts may assess several factors: 1) the nature
of plaintiff’s alleged injury; 2) the directness of the injury; 3) the speculative measure of the
harm; 4) the risk of duplicative recovery; and 5) the complexity in apportioning damages.”
847 F.2d 1179, 1183 (5th Cir. 1988). While these factors are indeed appropriate in the overall
standing inquiry, the antitrust-injury standing requirement is analogous to the first Dow
factor: the nature of the plaintiff’s injury. This is evident from Dow’s citation to Brunswick
for the proposition that, “[r]egarding the first factor, plaintiff’s injury must be the type that
the antitrust laws were intended to prevent,” id.
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Am. Crystal Sugar Co., 334 U.S. 219, 236 (1948) (alteration in original)); cf.
Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 112 (1986) (extending
the antitrust injury requirements of Clayton Act § 4 claims for damages to § 16
claims for injunctive relief).
      In Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314 (5th Cir. 2009),
this Court addressed an assertion of antitrust standing similar to
Waggoner’s—decreased fees from the downstream anticompetitive conduct of
the payor. Harrah’s, which owned two gaming licenses, leased two berths for
its riverboat casinos. Id. at 316. Pursuant to a settlement agreement, the
plaintiff was entitled to a portion of that rent in per-patron fees. Id. Harrah’s
proceeded to sell the casinos, gaming licenses, and interests in the berths to
another company, Pinnacle. Id. Pinnacle applied to the state regulatory agency
to use the two gaming licenses at berths in which the plaintiff had no interest,
which would have deprived the plaintiff of all per-patron fees. Id. at 317.
      The plaintiff sued Harrah’s and Pinnacle, alleging, inter alia, antitrust
violations for dividing the Louisiana casino market. Id. at 318. The plaintiff
argued that the loss of fees constituted antitrust injury. Id. In determining
whether this constituted antitrust injury, we analogized to landlord–tenant
and supplier–customer law. Id. at 320. Noting that these relationships “when
terminated or modified by a byproduct of ‘downstream’ anticompetitive
conduct, have rarely been held to inflict antitrust injury,” we held that the loss
of per-patron fees did not amount to antitrust injury and affirmed the dismissal
on antitrust standing grounds. Id. at 320–21, 323.
      Additionally, we have explicitly held that a royalty-interest owner’s
alleged injury of decreased royalty payments due to a conspiracy among oil
companies is not antitrust injury. In Bailey v. Shell Western E&P, Inc., the
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holder of an ORRI in CO2 in the McElmo Dome in Colorado brought an
antitrust suit against Shell. 609 F.3d 710, 715–16, 727 (5th Cir. 2010). The
interest holder’s alleged antitrust injury was the decrease in royalty payments
resulting from an alleged conspiracy between Shell and other unit operators.
Bailey v. Shell W. E & P, Inc., 555 F. Supp. 2d 767, 769, 776 (S.D. Tex. 2008). 5
We reasoned that “if Shell were to raise the price of gas [on which the royalty
payments were based] Bailey would benefit because his royalty payments
would increase.” 609 F.3d at 727. Because the royalty holder “suffered no
antitrust injury,” we affirmed summary judgment. Id. at 729.
       Waggoner’s attempt to distinguish Bailey is unavailing. 6 First Waggoner
notes that that the oil companies in Bailey owned only 87% of the CO2 in the
McElmo dome, 555 F. Supp. 2d at 769, but Denbury allegedly owns 100% of



       5  We cite the district court opinion for these facts and not for its reasoning because our
opinion deals with numerous issues and therefore provides a limited discussion of the
antitrust claim. See Bailey, 609 F.3d at 727.
        6 Waggoner attempts to analogize this case to McCready. In that case, a beneficiary of

an insurance policy purchased by her employer alleged that the insurance company’s practice
of denying coverage for treatment by psychologists while covering treatment by psychiatrists
was part of a conspiracy to restrain competition in the market. 457 U.S. at 467. The
defendants argued that the plaintiff lacked antitrust standing because her injury did not
“reflect the ‘anticompetitive’ effect of the alleged” conspiracy, stressing that she did not claim
that psychiatry costs were higher because of the alleged conspiracy. Id. at 481–82. The Court
disagreed, finding she had standing because she was forced into the “Hobson’s choice” of being
treated by a psychiatrist and forfeiting reimbursement or forgoing treatment by the
practitioner of her choice. Id. at 483. The Court held her injury “was inextricably intertwined
with the injury the conspirators sought to inflict on psychologists and the psychotherapy
market.” Id. at 484.
        The most salient distinction between McCready and the instant case is that Waggoner
is not a consumer, directly or indirectly, in the CO2 market. Moreover, the alleged antitrust
behavior in that case was the pressure on subscribers to choose treatment from psychiatrists
rather than psychologists to limit competition against psychiatrists. Id. Here Waggoner’s
alleged injury stems from the monopolist’s power to “control price or exclude competition.”
The Defendant’s sale of CO2 for low prices is hardly the type of harm that “Congress sought
to redress in providing a private remedy for” antitrust violations, id. at 483.
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the CO2 in Mississippi. Additionally, Waggoner asserts that in Bailey Shell was
selling the gas to third parties. The case does not support this assertion, and
even if this were true, it would not render Bailey inapplicable. Neither the
district court’s nor our reasoning in Bailey depends on Shell’s share of the
market or on the identity of the CO2 purchasers.
      Jebaco and Bailey decide this issue. As with the decrease in per-patron
fees in Jebaco, Waggoner’s decrease in royalties is the result of downstream
conduct by the payor, in a market in which Waggoner is not a participant. See
587 F.3d at 320. More importantly, Waggoner’s alleged antitrust injury is
exactly the same as that alleged in Bailey—decreased royalty payments on CO2
as a result of a conspiracy between oil companies (here, between Denbury and
its affiliates). This Court unequivocally held that this is not antitrust injury.
609 F.3d at 727. Because Waggoner has failed to raise a fact issue as to
antitrust standing, we affirm the district court’s grant of summary judgment
for Denbury on the antitrust claims.
B.    Civil Conspiracy
      In addition to the antitrust claims, Waggoner alleged Denbury engaged
in a conspiracy
      to create a fraudulent scheme, by which Denbury has been
      underpaying CO2 royalty owners in the Jackson Dome, including
      the Plaintiffs, and as part of their fraudulent scheme, the
      Defendants have been over-charging working interest owners for
      CO2 used in the tertiary recovery oil fields operated by Denbury in
      Southwest Mississippi and Louisiana.

      Under Mississippi law, the elements of civil conspiracy are “(1) two or
more persons or corporations; (2) an object to be accomplished; (3) a meeting of
the minds on the object or course of action; (4) one or more unlawful overt acts;

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and (5) damages as the proximate result.” Gallagher Bassett Servs., Inc. v.
Jeffcoat, 887 So. 2d 777, 786 (Miss. 2004). “Mississippi follows the rule of
almost all jurisdictions in uniformly requiring that civil conspiracy claims be
predicated upon an underlying tort that would be independently actionable.”
Ward v. Life Investors Ins. Co. of Am., 383 F. Supp. 2d 882, 890 (S.D. Miss.
2005) (citing Wells v. Shelter Gen. Ins. Co., 217 F. Supp. 2d 744, 755 (S.D. Miss.
2002)). 7
       Waggoner alleges the underlying tort of fraud. A Mississippi fraud claim
has nine elements: “(1) a representation, (2) its falsity, (3) its materiality, (4)
the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent
that it should be acted on by the hearer and in the manner reasonably
contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its
truth, (8) his right to rely thereon, and (9) his consequent and proximate
injury.” Martin v. Winfield, 455 So. 2d 762, 764 (Miss. 1984).
       This Court, in an unpublished decision, affirmed a judgment as a matter
of law on a Mississippi civil-conspiracy claim based on a fraud claim when the
plaintiff failed to present any evidence of a false statement. Aiken v. Rimkus
Consulting Grp., Inc., 333 F. App’x 806, 811–12 (5th Cir. 2009) (per curiam). 8
So too here: Waggoner’s complaint contains no allegation of a false statement,
much less any of the other elements of fraud. 9 Additionally, Waggoner points



       7 The Mississippi Supreme Court has not spoken on whether a civil-conspiracy claim
can stand where no underlying tort is alleged. See Wells, 217 F. Supp. 2d at 755 (surveying
other states’ laws).
       8 In Aiken, it was unclear what tort the conspiracy claim was based on, but the Court

assumed it was fraud. 333 F. App’x at 812.
       9 The complaint states:

       Defendants herein, have conspired to create a fraudulent scheme, by which
       Denbury has been underpaying CO2 royalty owners in the Jackson Dome,
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to no summary-judgment evidence that suggests Denbury made a fraudulent
statement.
      Waggoner does not contend that it properly pleaded the elements of
fraud. Rather, it argues that instead of granting summary judgment, the court
should have granted Waggoner leave to amend the complaint. Waggoner did
not file a motion for leave to amend; it simply stated at the end of its response
to Denbury’s motion: “If the Court finds that the Plaintiffs have failed to plead
particular elements of a claim (or that they have alleged facts without enough
specificity), then the Plaintiffs would request the opportunity to amend their
complaint.” The district court never expressly addressed this request.
      “A party who neglects to ask the district court for leave to amend cannot
expect to receive such a dispensation from the court of appeals.” United States
ex rel Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir.
2003). A “bare request in an opposition to a motion to dismiss—without any
indication of the particular grounds on which the amendment is sought—does
not constitute a motion within the contemplation of Rule 15(a).” Id. (citations
and internal quotation marks omitted).
      In Willard, this court affirmed dismissal with prejudice in part on the
grounds that the plaintiff’s purported request for leave to amend did not satisfy
the requirements of Rule 15. Id. The plaintiff, in his response to a motion to
dismiss stated: “In any event, the only relief possibly available to it at this
stage of the case is that relator replead. A court should not dismiss a plaintiff’s



      including the Plaintiffs, and as part of their fraudulent scheme, the Defendants
      have been over-charging working interest owners for CO2 used in the tertiary
      recovery oil fields operated by Denbury in Southwest Mississippi and
      Louisiana.
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complaint under Rule 9(b) unless the plaintiff has already been given the
opportunity to amend.” Id. The district court dismissed the complaint, stating
the plaintiff “has not requested leave to amend.” Id. at 386. Willard never filed
a motion to reconsider “as part of which he could have moved to amend his
complaint.” Id. at 387. This Court affirmed for three reasons, one of which was
that the statement did in the response did “not expressly request that [the
plaintiff] be given leave to amend and does not provide any indication of the
grounds on which such an amendment should be permitted.” Id.
      On the other hand, this Court has found sufficient under Rule 15 a
statement in a response to a motion to dismiss that sought leave to “fix any
infirmity” based on “information obtained during depositions of two former . .
. [employees of the defendant] taken in a California state court proceeding.”
Cent. Laborers’ Pension v. Integrated Elec. Servs. Inc., 497 F.3d 546, 555–56
(5th Cir. 2007). In Central Labrorers’ Pension, the district court “did not
explicitly address this request but implicitly rejected it by entering a judgment
of dismissal with prejudice.” Id. While “discoruag[ing] litigants from moving
to amend in haphazard fashion,” we construed the statement as a “proper
motion to amend” because it “was not devoid of any indication of the grounds
for amendment.” Id. at 556.
      We hold that the district court did not abuse its discretion in implicitly
denying Waggoner’s request for leave to amend. See Central Laborers’ Pension,
497 F.3d at 555 (“The district court . . . implicitly rejected [the request to
amend] by entering a judgment of dismissal with prejudice.”). Ordinarily,
“outright refusal to grant the leave without any justifying reason appearing for
the denial is . . . [an] abuse of discretion and inconsistent with the spirit of the
Federal Rules.” Foman v. Davis, 371 U.S. 178, 181–82 (1962). But here, unlike
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the request in Central Laborers’ Pension, Waggoner’s request for leave to
amend was tacked on to the end of its response to Denbury’s motion to dismiss
and gave no indication of the grounds for amendment. This “bare request in an
opposition to a motion to dismiss—without any indication of the particular
grounds on which the amendment is sought—does not constitute a motion
within the contemplation of Rule 15(a),” Willard, 336 F.3d at 387 (citations and
internal quotation marks omitted). And, as in Willard, Waggoner did not file a
motion to reconsider in which it could have requested leave to amend, attached
a proposed amended complaint, or otherwise explained how it could allege a
false statement. Waggoner compounds this error on appeal by neglecting to
explain to this Court how it could or would allege a false statement were leave
to amend granted. See id. (“[T]here is no indication in [the plaintiff’s] briefs to
this court that he will be able to allege the necessary ‘who, what, when, where,
and how’ of the alleged fraud.”). Thus, it appears leave to amend would be
futile.
                               III. CONCLUSION
          For the foregoing reasons, we AFFIRM.




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