                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUN 3 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 PLATTE VALLEY WYO-BRASKA
 BEET GROWERS ASSOCIATION;
 WHEATLAND BEET GROWERS
 COOPERATIVE ASSN., INC.,

               Plaintiff - Appellant,

          v.                                            No. 03-8084
                                               (D. Ct. No. 03-CV-109-WFD)
 IMPERIAL SUGAR COMPANY,                                 (D. Wyo.)

               Defendant - Appellee.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Circuit Judge,     McWILLIAMS , Senior Circuit Judge, and
LUCERO , Circuit Judge.


      Plaintiff-Appellant Platte Valley Wyo-Braska Beet Growers Association

(“Platte Valley”) filed a complaint against Defendant-Appellee Imperial Sugar

Company (“Imperial”) alleging breach of contract, anticipatory repudiation, and

breach of the implied covenant of good faith. Imperial then submitted a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6), asserting, among other things, that


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the document offered by Platte Valley does not comply with the Wyoming Statute

of Frauds. The District Court agreed, granted Imperial’s motion to dismiss, and

refused to grant Platte Valley leave to amend the complaint. We take jurisdiction

pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                 I. INTRODUCTION

       As an appeal from a motion to dismiss, we present the following facts from

the complaint in the light most favorable to Platte Valley.   1
                                                                  Platte Valley and

Imperial began a series of discussions in 1999 concerning Platte Valley’s

potential purchase from Imperial of the Torrington Sugar Beet Processing Plant

(“the Plant”). In April 2002, these discussions resulted in a written, exclusive

negotiation agreement between the two parties, expiring on June 4, 2002.

Although they did not reach an agreement by this time, negotiations continued.

       On July 23, 2002, these talks resulted in “an agreement whereby Imperial

would sell the Sugar Processing Plant and associated facilities in Torrington,

Wyoming to Platte Valley . . . .” At the conclusion of these talks, Mr. Peiser,


       1
        We note that Platte Valley submitted an email from Mr. Peiser and other
documents to support its position on appeal.  When evaluating a Rule 12(b)(6)
motion, however, we cannot consider information outside the complaint without
converting the motion to one for summary judgment. See Fed. R. Civ. P. 12(b);
David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996) (“[A]
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) cannot be converted into a
summary judgment motion without notice and an opportunity for the parties to
present relevant evidence.”). Thus, we will not consider on appeal any evidence
outside the complaint and its attached exhibits.

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President and CEO of Imperial, told officials from Platte Valley that “we have a

deal.”

         On July 24, Imperial sent a written term sheet (the “Term Sheet”) to Platte

Valley that set forth the terms agreed to orally on the previous day. The Term

Sheet described the property in question as the “Torrington, Wyoming Holly Beet

Processing Plant.” Paragraph 10 of the Term Sheet stated that “This term sheet is

proprietary and confidential between the parties and shall not become binding on

the parties until approved by their respective boards of directors and senior

secured lenders.”

         Relying on this agreement, Platte Valley incurred significant expenses to

obtain financing and prepare to purchase the Plant. Without prior notice, Imperial

notified Platte Valley on September 24, 2002, that Imperial had already sold the

Plant to American Crystal Sugar Company. Platte Valley responded by filing this

diversity action.

         Imperial, in turn, filed its motion to dismiss. Imperial based this motion on

the fact that the document offered by Platte Valley, which purports to be the

contract, does not comply with the Statute of Frauds and explicitly states that it

does not bind either party prior to approval of the agreement by their boards of

directors and senior secured lenders. During the motion to dismiss hearing, Platte

Valley orally moved to amend its complaint, seeking to add a promissory estoppel


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claim. The District Court granted Imperial’s motion to dismiss and refused to

allow Platte Valley to amend. Platte Valley timely filed this appeal, challenging

the District Court’s grant of the Rule 12(b)(6) motion and its refusal to allow an

amendment to the complaint.

                 II. FAILURE TO GRANT LEAVE TO AMEND

A.    Standard of Review

      We review a district court’s denial of a motion requesting leave to amend

for abuse of discretion. Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d

1571, 1584 (10th Cir. 1993). “Refusing leave to amend is generally only justified

upon a showing of undue delay, bad faith or dilatory motive, failure to cure

deficiencies by amendments previously allowed, or undue prejudice to the

opposing party, or futility of amendment, etc.” Id. at 1585. Regardless of

whether the district court itself cites a sufficient reason justifying its refusal to

grant leave to amend, “we are free to affirm [the] decision on any grounds for

which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.” Lambertsen v. Utah Dept. of Corr., 79 F.3d

1024, 1029 (10th Cir. 1996) (internal quotations omitted).

B.    Merits

      We conclude that the District Court did not abuse its discretion in denying

Platte Valley’s oral motion for leave to amend its complaint. Although the


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District Court refused to consider this motion based on its policy against

addressing Rule 15 motions during motion to dismiss hearings, the record

contains other reasons supporting its denial. First, Platte Valley’s motion for

leave to amend suffered from undue delay. Platte Valley first raised it before the

District Court at the end of its arguments opposing Imperial’s motion to dismiss.

This argument occurred two and a half months after Platte Valley filed its

complaint and almost two months after Imperial submitted its motion to dismiss.

By waiting until completion of its arguments on the motion to dismiss, Platte

Valley gave the District Court virtually no time to consider properly its motion to

amend. Nor did Platte Valley explain why it failed to present its Rule 15 motion

earlier, instead of waiting until the eleventh hour of its case. See Pallottino v.

City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (holding that

untimeliness alone can provide a sufficient reason to deny a motion for leave to

amend).

      Second, Platte Valley did not previously discuss this request with Imperial,

as required by local rule. See U.S.D.C.L.R. 15.1 (“Motions to amend pleadings

pursuant to Fed. R. Civ. P. 15(a) shall include a representation that the movant

conferred with the opposing party to determine if the opposing party objected to

the motion.”). “Rules of practice adopted by the United States District Courts, as

the one with which we are here concerned, have the force and effect of law, and


                                          -5-
are binding upon the parties and the court which promulgated them . . . .” Woods

Const. Co. v. Atlas Chem. Indus., Inc., 337 F.2d 888, 890 (10th Cir. 1964). The

District Court certainly acted within its discretion by refusing to consider a

motion for leave to amend that did not comply with its own local rules.

       Finally, Platte Valley failed to provide the District Court with a copy of its

proposed amended complaint at the time that it submitted the motion to amend.

“As the district court was not provided with a copy of the proposed amended

complaint, it would have been impossible for the court to determine its viability.”

Lambertsen, 79 F.3d at 1030. The District Court acted prudently by refusing to

consider the motion to amend until after ruling on the motion to dismiss, at which

time it would have had the opportunity to obtain a copy of the proposed amended

complaint and further evaluate its merits. For these reasons, we find that the

District Court did not abuse its discretion by refusing to grant Platte Valley’s

motion for leave to amend. See id. at 1029-30 (upholding a district court’s denial

of a motion to amend when it was deemed untimely and did not includ a copy of

the proposed amended complaint).

                             III. MOTION TO DISMISS

A.     Standard of Review

       “We review de novo a district court’s ruling on a motion to dismiss for

failure to state a claim upon which relief can be granted.”   Miller v. Glanz ,


                                            -6-
948 F.2d 1562, 1565 (10th Cir. 1991). “The court’s function on a Rule 12(b)(6)

motion is not to weigh potential evidence that the parties might present at trial,

but to assess whether the plaintiff’s complaint alone is legally sufficient to state a

claim for which relief may be granted.”     Dubbs v. Head Start, Inc. , 336 F.3d

1194, 1201 (10th Cir. 2003) (quoting      Sutton v. Utah State Sch. for the Deaf &

Blind , 173 F.3d 1226, 1236 (10th Cir. 1999)). In making this review, we take the

complaint’s factual allegations as true and draw all reasonable inferences therein

in favor of the plaintiff.   Murrell v. Sch. Dist. No. 1 , 186 F.3d 1238, 1244 (10th

Cir. 1999).

B.     Merits

       The District Court granted Imperial’s motion to dismiss based in part on the

failure of the alleged contract to satisfy the Statute of Frauds. Specifically, the

District Court stated that “the lack of a legal description and signature in the term

sheet was a violation of [the] Wyoming Statute [of Frauds].” Agreeing with the

District Court, we affirm its grant of Imperial’s motion to dismiss.

       The Wyoming Statute of Frauds provides that “every agreement [for the

sale of real estate] shall be void unless such agreement, or some note or

memorandum thereof be in writing, and subscribed by the party to be charged

therewith . . . .” Wyo. Stat. Ann. § 1-23-105(a). On its face, this provision

prevents the July 23 oral agreement between Imperial and Platte Valley from


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forming a binding contract. As such, any contractual claims by Platte Valley must

rest on the Term Sheet.

       To comply with the Statute of Frauds, the written contract “must contain an

adequate description or must furnish the means by which the land can be

identified.”   Pullar v. Huelle , 73 P.3d 1038, 1040 (Wyo. 2003). Under Wyoming

law, “a valid contract to convey land must expressly contain a description of the

land, certain in itself or capable of being rendered certain by reference to an

extrinsic source which the writing itself designates.”   In re Estate of Jackson v.

DeVries , 892 P.2d 786, 789 (Wyo. 1995). The only description of the property in

the Term Sheet is the title of that document, which reads “Torrington, Wyoming

Holly Beet Processing Plant.” The Term Sheet gives no other description of the

property for sale nor does it reference any external source containing a more

precise description.

       This description does not satisfy the requirements for precision under the

Wyoming Statute of Frauds. As Imperial correctly notes in its appellate brief, the

Term Sheet provides no indication of what constitutes the Holly Beet Processing

Plant. We are left uninformed about whether the Term Sheet includes, for

example: the land surrounding the plant, the parking lot, privately-owned access

roads, adjoining buildings, machinery, inventory, and any non-adjoining land

owned by Imperial.     See, e.g., Pullar , 73 P.3d at 1040-41 (holding that the


                                            -8-
description of property for sale as a “parcel of land in NW1/4SW1/4, Sec. 16 . . .

Fremont County, Wyoming” did not satisfy the Statute of Frauds);        Estate of

Jackson , 892 P.2d at 790 (finding the Statute of Frauds unsatisfied when a

contract listed seventy-nine acres for sale and seller only owned one other acre,

on which rested his house, because the “writing [lacked a] . . . description of the

location of the land involved”).

       Platte Valley suggests that we remedy this defect through extrinsic

evidence. Wyoming courts, however, make clear that, although “parol evidence is

admissible to identify described property, . . . [it] may not supply a portion of

that description.”      Estate of Jackson , 892 P.2d at 789. Because we do not have

sufficiently described property here, we must reject Platte Valley’s attempt to

augment this description through extrinsic evidence.

       We also reject Platte Valley’s argument that a balancing of the equities and

its hardships mandates an exception to the Statute of Frauds. The Wyoming

Supreme Court has cautioned that “[t]he tendency has been to restrict rather than

enlarge . . . exceptions to the statute [of frauds], and the courts should not be

tempted to turn aside from its plain provisions merely because of the hardship of

the particular case.”     Davis v. Davis , 855 P.2d 342, 346 (Wyo. 1993). In other

words, strict adherence to the statute is required, “[u]nless this case fits within

one of the recognized exceptions to the statute of frauds . . . .”   Id. Platte Valley


                                             -9-
does not mention, and we have not found, any recognized exception to the Statute

of Frauds satisfied here. Thus, the Term Sheet cannot constitute a contract under

the Statute of Frauds and Platte Valley cannot prove a set of facts entitling it to

relief. 2

                                IV. CONCLUSION

        Based on the foregoing, we AFFIRM the District Court’s grant of

Imperial’s motion to dismiss and its denial of Platte Valley’s motion for leave to

amend.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge




        2
         The District Court also based its order to dismiss on (1) the lack of a
signature in the Term Sheet and (2) paragraph 10 in the Term Sheet, which states
that the Term Sheet does not become binding until approved by both parties’
“boards of directors and senior secured lenders.” Because the inadequate
description of the property sufficiently supports the District Court’s order, we
need not address those issues on appeal.

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