                                                                    FILED
                          UNITED STATES COURT OF APPEALSUnited States Court of Appeals
                                                                Tenth Circuit
                            FOR THE TENTH CIRCUIT
                         ________________________________                    June 21, 2019

                                                                         Elisabeth A. Shumaker
 MATT MEIER; SHERYL MEIER; KAI                                               Clerk of Court
 BACH, on behalf of themselves and all
 others similarly situated,

       Plaintiffs - Appellants,

 v.                                                         No. 18-6152
                                                     (D.C. No. 5:17-CV-00703-F)
 CHESAPEAKE OPERATING L.L.C.;                             (W.D. Oklahoma)
 DEVON ENERGY PRODUCTION
 COMPANY, LP; MIDSTATES
 PETROLEUM COMPANY LLC; NEW
 DOMINION, LLC; RANGE
 PRODUCTION COMPANY, LLC;
 SPECIAL ENERGY CORPORATION;
 WHITE STAR PETROLEUM, LLC,*

       Defendants - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT**
                        _________________________________


      *
         While this appeal was pending, Defendant White Star Petroleum, LLC filed a
Notice of Bankruptcy. A bankruptcy petition operates as a stay of “the
continuation . . . of a judicial . . . proceeding against the debtor that was or could
have been commenced before the commencement of [the bankruptcy proceeding], or
to recover a claim against the debtor that arose before the commencement of the
[bankruptcy] case.” 11 U.S.C. § 362(a)(1). On the other hand, an automatic stay
generally does not stay “litigation as to co-defendants of the bankrupt.” Fortier v.
Dona Anna Plaza Partners, 747 F.2d 1324, 1329 (10th Cir. 1984). Accordingly, this
case is stayed as to White Star Petroleum, but not as to the other defendants.
      **
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
Before HARTZ, EBEL, and McHUGH, Circuit Judges.
                  _________________________________


      Several Oklahoma homeowners brought a class-action lawsuit against

operators of wastewater disposal wells for hydraulic fracturing operations, alleging

the injection wells were significantly increasing seismic activity across large portions

of Oklahoma. The only damages the homeowners sought were the increased costs of

obtaining and maintaining earthquake insurance. The district court dismissed the

lawsuit for failure to state a claim, reasoning that Oklahoma law does not permit

recovery of increased insurance premiums stemming from a defendant’s creation of

risk where plaintiffs have not suffered any actual earthquake damage to their persons

or property. On appeal, the homeowners argue the district court dismissed the lawsuit

based on an erroneous Erie guess of Oklahoma tort law, and, in the alternative, they

request that this court certify the question to the Oklahoma Supreme Court. We

decline to certify the question and affirm the district court.


                                   I.     BACKGROUND

      Plaintiffs Matt Meier, Sheryl Meier, and Kay Bach (collectively, “the

homeowners”) all own homes and property in Oklahoma. The defendants in this case

are seven oil and gas companies whose hydraulic fracturing operations in Oklahoma

involve the injection of wastewater deep into the ground. The homeowners allege that

“[b]y injecting millions of barrels of wastewater below the Arbuckle, Defendants




                                            2
have directly caused [an] unprecedented rise in Oklahoma earthquake activity.”1 App.

at 38. They claim that “[m]ultiple scientific studies have established a causal link

between the injection of production wastewater into the Arbuckle via disposal wells,”

and they cite several studies indicating that “the number of [earth]quakes in

Oklahoma [has] increased exponentially after 2008.” Id. at 39, 49. This increase in

earthquake activity, they allege, “has caused some earthquake insurance companies to

hike their premiums by as much as 260 percent in the last three years alone, and

many companies have ceased writing new insurance policies.” Id. at 49. They claim

that “[a]s a direct and foreseeable result of Defendants’ conduct, Oklahomans have

been forced to purchase earthquake insurance to protect their homes and property,”

and that because of the defendants’ activities, such insurance costs significantly more

than it previously did. Id. at 48. The homeowners do not claim this increased seismic

activity has caused any actual damage to their homes or properties. Rather, they

simply seek to recover “[t]he value of premiums paid to obtain earthquake insurance

coverage; and/or . . . [t]he excess amount required to maintain earthquake insurance

coverage after 2009,” as well as punitive damages. See id. at 53–55.

      The homeowners originally filed their complaint in Oklahoma state court in

the District Court of Payne County, asserting class allegations and alleging public

nuisance, private nuisance, ultrahazardous activities, and negligence. They sought to

represent a class defined (in relevant part) as “[a]ll citizens in Oklahoma who


      1
      The Arbuckle formation is a geological formation covering much of
Oklahoma.
                                           3
purchased or maintained earthquake insurance for their homes or property from 2008

through the time the class is certified.” Id. at 49. The defendants removed the case to

the federal district court for the Western District of Oklahoma pursuant to the Class

Action Fairness Act, 28 U.S.C. § 1332(d). All of the named defendants then moved

to dismiss the homeowners’ complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), arguing the homeowners lacked standing to bring their suit and

had failed to state a claim for relief. The district court held the homeowners did have

standing to sue, but it dismissed their suit for failure to state a claim, predicting that

“the Oklahoma Supreme Court, if confronted with the issue, would find the relief

requested by plaintiffs not legally cognizable under the circumstances present in the

case at bar.”2 Id. at 84. Reviewing case law from Oklahoma and other states, the

court found no authority “support[ing] an award of insurance premiums under the

circumstances presented.” Id. at 84–85. The homeowners timely appealed.

                                      II.    DISCUSSION

       We first consider the homeowners’ request that we certify the question

presented to the Oklahoma Supreme Court. Declining the invitation to certify the




       2
          One of the defendants, Midstates Petroleum Company LLC, independently
moved to dismiss the complaint pursuant to Rule 12(b)(1), arguing that any claims
against it had been previously discharged pursuant to a bankruptcy order in a Chapter 11
bankruptcy case. The district court granted this motion in part and denied it in part. The
homeowners never addressed the bankruptcy issue on appeal and so, as the defendants
argue, the homeowners have forfeited any contention that the district court erred in that
part of its ruling. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
                                             4
question, we then analyze how the Oklahoma Supreme Court would answer the

question.

                                     A. Certification

      Where a district court declines to certify a question, “[a] motion for

certification may be brought independently and anew to the court of appeals.” Pino v.

United States, 507 F.3d 1233, 1235 (10th Cir. 2007); see 10th Cir. R. 27.1. “Such a

motion requires us to determine whether certification is appropriate as a de novo

matter without regard to the district court’s assessment.” Pino, 507 F.3d at 1235

(emphasis omitted).

      “[W]e will not trouble our sister state courts every time an arguably unsettled

question of state law comes across our desks.” Id. at 1236. Rather, we have set down

the following framework for deciding whether to certify:

      While we apply judgment and restraint before certifying . . . we will
      nonetheless employ the device in circumstances where the question
      before us (1) may be determinative of the case at hand and (2) is
      sufficiently novel that we feel uncomfortable attempting to decide it
      without further guidance.

Id. Here, the question presented is clearly “determinative of the case at hand,” id.,

since it is the ground on which the district court granted the defendants’ 12(b)(6)

motion and the sole substantive question on appeal.

      On the other hand, the second factor—whether the question is “sufficiently

novel that we feel uncomfortable attempting to decide it without further guidance”—

weighs somewhat against certification. See id. Admittedly, the question whether a

plaintiff may collect damages for increased insurance premiums absent any physical

                                           5
damage is novel insofar as the Oklahoma Supreme Court has not specifically

addressed it. Indeed, some good-faith arguments can be adduced in favor of the

homeowners’ position. Nevertheless, as we discuss in the following section, it is

highly unlikely, given Oklahoma law and the bulk of out-of-state authority, that the

Oklahoma Supreme Court would hold in favor of the homeowners. “When we see a

reasonably clear and principled course, we will seek to follow it ourselves”—even if

no state supreme court precedent is directly on point. Pino, 507 F.3d at 1236; see also

17A Fed. Prac. & Proc. § 4248 (3d ed.) (“Questions ought not be certified if the

answer is reasonably clear.”). Because we can pursue a “clear and principled course”

here without troubling the Oklahoma Supreme Court for guidance, the second Pino

factor weighs against certification.

       Apart from these two factors, an additional consideration strongly discourages

us from certifying: namely, the fact that the homeowners never requested

certification until the district court ruled against them on the merits.3 Where a party

does not initially request certification from the district court, but raises the issue for

the first time after an adverse district court ruling, this weighs heavily against

certification.4 See Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735, 738 (10th Cir.


       3
        None of the parties mentioned this critical fact in their briefing before this
court. Still, because the decision whether to certify “rests in the sound discretion of
the federal court,” we take this fact into account for our analysis. Lehman Bros. v.
Schein, 416 U.S. 386, 391 (1974).
       4
         Some states do not allow federal district courts to certify questions and in
those states, it would make little sense to fault a party for failing to request that the
district court do so. See, e.g., Cal. R. Ct. 8.548(a) (allowing certification only from
                                             6
2009). “Otherwise, the initial federal court decision [would] be nothing but a gamble

with certification sought only after an adverse decision.” Perkins v. Clark Equipment

Co., Melrose Div., 823 F.2d 207, 210 (8th Cir. 1987); see also Complaint of McLinn,

744 F.2d 677, 681 (9th Cir. 1984) (“Ordinarily such a movant should not be allowed

a second chance at victory . . . .”).

       Because the question is not “sufficiently novel that we feel uncomfortable

attempting to decide it without further guidance,” and because the homeowners did

not seek certification until after they were unsuccessful in the district court, we

decline to certify the question. Instead, we now proceed to the merits and consider

whether, under Oklahoma law, a homeowner can sue for increased insurance

premiums absent any actual damage to property.

                      B.     Damages for Increased Insurance Premiums

       The district court dismissed the homeowners’ lawsuit for failure to state a

claim, reasoning that Oklahoma law does not recognize a claim for increased



“the United States Supreme Court, a United States Court of Appeals, or the court of
last resort of any state, territory, or commonwealth”). Every state in the Tenth
Circuit, however, allows federal district courts to submit certified questions to the
state supreme court. See Colo. App. R. 21.1 ("The supreme court may answer questions
of law certified to it by . . . a United States District Court . . . ."); Kans. Stat. Ann. § 60-
3201 ("The Kansas supreme court may answer questions of law certified to it by . . . a
United States district court . . . ."); 20 Okla. Stat. Ann. 1602 ("The Supreme Court and the
Court of Criminal Appeals may answer a question of law certified to it by a court of the
United States . . . ."); N.M.R.A. 12-607 ("The Supreme Court may answer by formal
written opinion questions of law certified to it by a court of the United States . . . ."); Utah
R. App. P. 41(a) ("The Utah Supreme Court may answer a question of Utah law certified
to it by a court of the United States . . . ."); Wyo. Stat. Ann. 1-13-106 ("The supreme
court may answer questions of law certified to it by a federal court . . . .").
                                               7
insurance premiums based on a risk that “has not materialized”—that is, where

“plaintiffs have suffered no damage to their homes or their persons.” See Meier v.

Chesapeake Operating L.L.C., 324 F. Supp. 3d 1207, 1219 (W.D. Okla. 2018). We

agree.

         “We review de novo the dismissal of a complaint for failure to state a claim

under Rule 12(b)(6).” Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013).

Moreover, in a diversity action, “we review the district court’s interpretation and

determination of state law de novo.” Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 850

(10th Cir. 2015) (quotation marks omitted). As a federal court sitting in diversity, we

must “conform to Oklahoma’s substantive law.” Stauth v. Nat’l Union Fire Ins. Co.

of Pittsburgh, 236 F.3d 1260, 1267 (10th Cir. 2001). Where, as here, “no decision of

a state’s highest court has addressed an issue of that state’s law,” the federal court

“must predict how the State’s highest court would rule.” Stuart v. Colo. Interstate

Gas Co., 271 F.3d 1221, 1228 (10th Cir. 2001). In doing so, “[w]e are free to

consider all resources available, including decisions of [Oklahoma] courts and the

general trend of authority.” Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 901–

02 (10th Cir. 2005) (quotation marks omitted).

         Although no Oklahoma authority specifically addresses the question at hand,

“other states have consistently failed to recognize a cause of action for increased

insurance premiums based on a tortfeasor’s negligence.” Severn Place Assoc’s v. Am.




                                            8
Bldg. Serv., Inc., 930 So. 2d 125, 128 (La. App. 2006) (collecting cases).5 On this

point, the defendants have amassed significant case law rejecting the notion of

damages for increased insurance premiums. See, e.g., Schipke v. Grad, 562 N.W.2d

109 (S.D. 1997) (refusing to allow a cause of action for increase in employer’s

workers’ compensation premiums); RK Constructors, Inc. v. Fuso Corp., 650 A.2d

153 (Conn. 1994) (same); Johnson v. Broomfield, 580 N.Y.W.2d 122 (N.Y. Jus. Ct.

1991) (concluding that a negligent driver was not liable for increase in plaintiff’s car

insurance premiums because damages were too remote and driver had no control over

plaintiff’s contractual arrangement with his insurer).

      The homeowners cite decisions applying the loss-of-a-chance doctrine to

award damages proportionate to the increased risk a tortfeasor has caused, even

though that risk has not yet materialized into an actual harm. See, e.g., McKellips v.

Saint Francis Hosp., Inc., 741 P.2d 467, 474–75 (Okla. 1987). But the Oklahoma

Supreme Court has expressly declined to extend this doctrine—whose “essence . . . is

the special relationship of the physician and the patient”—beyond the medical-

malpractice context. Hardy v. S.W. Bell Tel. Co., 910 P.2d 1024, 1029 (Okla. 1996).

For example, in Hardy, a plaintiff brought a wrongful death claim against a telephone


      5
         The homeowners rightly observe that Louisiana civil decisions, grounded as
they are in codal law, might be unhelpful in resolving questions of common law. See
Frederick v. Brown Funeral Homes, Inc., 62 So. 2d 100, 111 (La. 1952) (“While the
common-law authorities relied upon and cited by the plaintiffs may be persuasive,
they are not decisive of the issue in view of our codal articles and jurisprudence.”).
Like the district court, however, we find Severn Place Associates persuasive mainly
for its survey of other states’ approaches to the issue.

                                           9
company, alleging the company had negligently caused a failure of the 911

emergency system, thus preventing him from promptly calling an ambulance when

his wife suffered a heart attack. Id. at 1026. Although the plaintiff admitted he did

“not know if his wife would have survived if the ambulance could have been

summoned and had arrived in its normal response time,” he argued “the delay caused

a loss of his wife’s chance to survive the heart attack.” Id. at 1027. On a certified

question, the Oklahoma Supreme Court called the loss-of-a-chance doctrine a

“remarkable exception to the traditional rule of the standard of proof of causation”

and declined to extend the doctrine to a non-physician tortfeasor’s creation of risk,

reasoning that “application of the lost chance of survival doctrine to these facts . . .

would cause a fundamental redefinition of the meaning of causation in tort law.” Id.

at 1029–30.

       Thus, it is highly unlikely the Oklahoma Supreme Court would allow

proportional recovery for unmaterialized risk here, given its refusal to extend the

loss-of-a-chance doctrine elsewhere. Apart from the medical malpractice context,

none of the authorities the homeowners cite actually support “a recovery in tort . . .

without . . . personal injury or property damages.” Appellants’ Op. Br. at 17

(quotation marks omitted); see Midwest City v. Eckroat, 387 P.2d 123, 127–29 (Okla.

1963) (allowing nuisance damages where adjacent sewage plant turned creek running

through property green with slime); Sand Springs Materials LLC v. City of Sand

Springs, 243 P.3d 768, 770–75 (Okla. Ct. Civ. App. 2010) (discussing a zoning



                                            10
appeal involving a special use permit to operate a rock quarry but never addressing

tort damages).

      The homeowners also argue, “[T]he district court here found the injury [they]

suffered . . . was not too remote or unforeseeable to justify dismissal under Rule

12(b)(6).” Appellants’ Reply Br. at 11. Based on their record citations, the

homeowners are apparently referring to the district court’s conclusion that they had

standing to sue (specifically addressing the injury-in-fact component of the standing

inquiry). See App. at 80 (“The court finds that these allegations are sufficient to

demonstrate an actual concrete and particularized injury-in-fact.”). But “one must not

‘confus[e] weakness on the merits with absence of Article III standing.’” Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015)

(quoting Davis v. United States, 564 U.S. 229, 249 n.10 (2011)). The injury-in-fact

analysis for standing purposes is distinct from the question whether a plaintiff has

adequately pleaded a claim for damages under Oklahoma law. Indeed, if courts

conflated the two analyses, then every plaintiff who satisfies the minimum Article III

requirements for standing would necessarily survive a 12(b)(6) motion, and could

proceed to discovery, on the sole basis of a nominal damages claim. But such is not

the case. Injury-in-fact for standing purposes simply requires that the plaintiff have a

“sufficient personal stake” in the outcome of the litigation; “it in no way depends on

the merits of the claim.” ASARCO Inc. v. Kadish, 490 U.S. 605, 613, 624 (1989)

(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)) (quotation marks and alteration

omitted). In contrast, the “injury” required for purposes of 12(b)(6) is one that

                                           11
satisfies the damage element of the plaintiff’s tort claim under Oklahoma law.

Burnett v. Mortg. Elec. Registration Sys., 706 F.3d 1231, 1236 (10th Cir. 2013)

(evaluating 12(b)(6) motion by “comparing the pleading with the elements of the

cause(s) of action” and determining whether the plaintiff “set forth plausible claims

animating the elements of her causes of action” (quotation marks omitted)); see also

Richards v. City of Lawton, 629 P.2d 1260, 1263 (Okla. 1981) (“An essential element

in every common-law negligence-based tort claim is the occurrence of damage

proximately caused by the breach of an alleged duty.”). As discussed, the

homeowners have not adequately alleged such an injury under Oklahoma law.

      The homeowners also argue Article 2, § 6 of the Oklahoma Constitution and

Title 23, § 3 of the Oklahoma Statutes support their right to damages by creating a

broad right to recovery for “all those [damages] allowed by the common law.”

Appellants’ Op. Br. at 9. But this argument plainly mischaracterizes the two

provisions it relies on. Neither one creates a freestanding entitlement to relief for

wrongs: courts have repeatedly explained that Article 2, § 6 of the Oklahoma

Constitution merely “mandates that the courts should be open and afford a remedy

for those wrongs that are recognized by the law of the land.” McCormick v.

Halliburton Co., 895 F. Supp. 2d 1152, 1156 (W.D. Okla. 2012) (quoting Rivas v.

Parkland Manor, 12 P.3d 452, 457–58 (Okla. 2000)); see also City of Anadarko v.

Fraternal Order of Police, Lodge 118, 934 P.2d 328, 330 (Okla. 1997) (“Section 6 is

intended ‘to guarantee that the judiciary would be open and available for the

resolution of disputes, but not to guarantee that any particular set of events would

                                           12
result in court-awarded relief.’” (quoting Rollings v. Thermodyne Indus., 910 P.2d

1030, 1032 (Okla. 1996))); Adams v. Iten Biscuit Co., 162 P. 938 (Okla. 1917)

(“Neither do we think [Article 2, § 6] was intended to preserve a particular remedy

for given causes of action in any certain court of the state, nor was it intended to

deprive the Legislature of the power to abolish remedies for future accruing causes of

action . . . .”). Similarly, Title 23, § 3 of the Oklahoma Statutes merely defines

recoverable damages as “compensation . . . in money” for a “detriment” caused by

“the unlawful act or omission of another.” 23 Okla. Stat. Ann. § 3. Because the

creation of an unmaterialized risk is not an “unlawful act or omission” under

Oklahoma tort law, see id., and increased insurance premiums based on such risk are

not damages “allowed by the common law,” see Okla. Const. Art. 2, § 6, neither of

these provisions creates a cause of action where the homeowners have otherwise

failed to demonstrate one.

      Finally, the homeowners argue that the district court improperly dismissed

their suit because, where only damages are disputed, Oklahoma law reserves the

question for a jury. To be sure, Oklahoma courts have repeatedly recognized that

“[w]here it is shown that some damage has resulted from [a] defendant’s wrongful

act, uncertainty as to the exact amount is no reason for denying damages altogether.”

George v. Greer, 250 P.2d 858, 860 (Okla. 1952) (quoting 25 C.J.S. Damages § 162

(1952)). But that principle is inapposite here, where the homeowners have failed to

plead any legally cognizable harm. The question presented is not simply what

damages the homeowners are entitled to, but, rather, whether the sole “relief” they

                                           13
request in their complaint “is legally cognizable.” Meier, 324 F. Supp. 3d at 1215.

Because the homeowners pleaded no legally cognizable claim for relief, the district

court properly dismissed their complaint under Rule 12(b)(6).6

                                    III.    CONCLUSION

      For the foregoing reasons, we decline to certify the question to the Oklahoma

Supreme Court and we affirm the district court.

                                           Entered for the Court



                                           Carolyn B. McHugh
                                           Circuit Judge




      6
         The homeowners argue for the first time in their reply brief that even if they
are not entitled to damages based on increased insurance premiums, “[a]t the very
least, Oklahoma law would allow the recovery of nominal damages,” which in turn
would support punitive damages. Reply Br. at 8–9; see Moyer v. Cordell, 228 P.2d
645, 650 (Okla. 1951) (“[I]n order to authorize punitive damages, mere nominal
damages are sufficient.” (quoting Halliburton-Abbott Co. v. Hodge, 44 P.2d 122, 127
(1935))). Because they never requested nominal damages in their complaint, did not
raise the issue in their briefing to the district court, and did not address the argument
in their opening brief, they have waived this argument. See Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 679 (10th Cir. 1998). In any event, even nominal damages require
“an actionable wrong,” which the homeowners have failed to plead. Moyer, 228 P.2d
at 650 (quoting Halliburton-Abbott, 44 P.2d at 127).
                                             14
18-6152, Meier, et al. v. Chesapeake Operating

HARTZ, J., Circuit Judge, concurring.

         I am pleased to join the panel opinion except for the discussion of certification. I

agree that we should not certify to the Oklahoma Supreme Court the issue presented on

this appeal, but my reason is simply that there is little doubt how the state court would

resolve that issue.

         I realize that the panel opinion follows circuit precedent in its discussion of

certification, and much of that precedent is sound. But I am afraid that some of the things

this court has said in the past were ill-conceived, or at least are now outdated. We should

not assume that state high courts consider it a burden to receive requests for certification

from us. No doubt some of those courts have such caseloads that they do not welcome

additional work. But many are eager for the opportunity to address unresolved issues of

state law. They are, of course, the proper institutions to declare what state law is. Yet in

an era when many significant disputes are referred to alternative dispute resolution and a

high percentage of those that come to the courts are settled before definitive rulings on

state law, the opportunity for state high courts to declare state law is dwindling. If we

retain an issue for us to decide, it may be years before it needs to be resolved in state

court.

         Rather than using a one-size-fits-all approach to certification, the federal courts

should discuss the matter periodically with the state courts. It seems to me that the

desires of the particular state high court should be the primary consideration, at least so

long as the state court can commit to promptly deciding certified issues so that justice is
not unduly delayed. The federalism interest in coordinating with the state courts should

outweigh such matters as a presumption against certification or whether or when the

parties have sought certification during the litigation.1 If the appellate court is confronted

with an important unresolved dispositive issue of state law, it should seriously consider

certification regardless of whether any party is requesting certification or has requested it

in district court.




1
  A strong presumption against granting a request for certification from a party that did
not seek certification at the trial level is particularly unwarranted. The state high court
may look unfavorably on a request from a trial court when the underlying facts are not
fully developed or when it is not at all clear that the state-law issue will end up being
dispositive, or even material, to the resolution of the dispute. As a result, the propriety of
certification may frequently be uncertain before judgment is entered.
                                              2
