                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                  TENTH CIRCUIT                               March 14, 2017

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
MAX OIL COMPANY INC., an Oklahoma
Corporation; MAX HAWKINS, an
individual; REBECCA HAWKINS, an                             No. 16-6238
individual; JOE HAWKINS, an individual,              (D.C. No. 5:16-CV-00539-W)
a/k/a Joe Max Hawkins,                                      (W.D. Okla.)

             Plaintiffs - Appellants,

v.

RANGE PRODUCTION COMPANY
LLC, a foreign limited liability company;
RANGE RESOURCES MID-
CONTINENT LLC, a foreign limited
liability company,

             Defendants - Appellees.



                             ORDER AND JUDGMENT*




      *
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.



      Max Oil Company and Max, Rebecca, and Joe Hawkins (Hawkins Family) sued

Range Production Company LLC and Range Resources-Midcontinent LLC (collectively

Range), alleging Range’s oil and gas drilling operations permanently damaged their

producing oil and gas wells. The district judge dismissed the petition with prejudice as

time-barred. Max Oil and the Hawkins Family complain: (1) the statute of limitations did

not begin to run until they eliminated other causes for the damage; and (2) they should

have been granted leave to amend their petition. But their own allegations show they

knew or had good reason to believe Range’s drilling operations were the cause of their

damages well before they eliminated other causes. And dismissal with prejudice was

appropriate because they never made a proper motion to amend. We affirm.

                                      I. Background

      The Hawkins Wells (Hawkins 1A-32, Heidi-Hawkins 2, and Hawkins #1) produce

oil and natural gas from the Red Fork and Oswego formations in Kay County, Oklahoma.

The Mississippian formation underlies the Hawkins Wells and their producing

formations.

      Max Oil owns and operates the Hawkins Wells. The Hawkins Family owns the

surface of the property on which the wells reside and conduct farming operations in and

around the wells. Max and Rebecca own all the minerals underlying the property and Joe

works as a contractor for Max Oil. Prior to December 2013, the Hawkins Wells were

profitable and capable of producing 130,000 cubic feet of natural gas (130 MCFD) per

                                           -2-
day and over 4 barrels of oil (4 BOD) per day. The Hawkins Family used a portion of the

natural gas to fuel their farm’s irrigation pumps. The oil and remaining natural gas were

sold to outside companies.

       In August 2011, Max and Rebecca entered into a “Lease Commitment

Agreement” with Range wherein they agreed to have installed a cast iron plug in the

Hawkins Wells in order to isolate upper production zones from the Mississippian

Formation. (Appellant’s App’x at 152.) In August 2013, the Oklahoma Corporation

Commission pooled the rights of the oil and gas owners in the Mississippian Formation

and designated Range as the operator of the pooled unit. It also granted Range a permit

to drill the Tower Wells (Tower 32-4S and Tower 32-5S).

       Four months later, on December 10, 2013, Range completed the Tower 32-4S well

with a hydraulic fracturing treatment.1 On that date, Max Oil discovered the Heidi-



       1
         A horizontal well is created by drilling a vertical hole, called a well bore, deep
into the earth to the strata where the oil and gas exist. The well bore then curves
approximately 90 degrees and becomes horizontal. A metal pipe, called a casing, is
placed in the well bore. Cement is pumped through the casing; when the cement reaches
the bottom of the casing, it is forced out the end and pushed up a certain distance between
the outside of the casing and the inside wall of the well bore. The hardened cement
between the casing and earth serves two important purposes: (1) it bonds the casing to the
well bore/earth and (2) it ensures that oil and gas from the well won’t leak into the water
table. Cement is also placed above and below any freshwater aquifer to prevent merger
between the aquifer and contaminants from other sources. A special tool, called a
perforating gun, is then lowered to the production layer and fired to create holes through
the casing and cement and into the targeted strata. Sand, water, and chemical additives
are then pumped into the well at high pressures to crack the strata in the horizontal
portion of the well. It is called fracking. The cracks or fracs, held open by the sand,
release the trapped oil and gas from the formation. Once the downward pressure is
removed from the well, the oil and gas from the producing formation flows into the
                                                                         (Continued . . .)

                                           -3-
Hawkins 2 well began “producing a great deal of water which restricted [its] flow of oil

and gas.” (Appellant’s App’x at 31.) On March 6, 2014, Range completed the Tower

32-5S well, also with a hydraulic fracturing treatment. On that same day, Max Oil

discovered that the Hawkins 1A-32 and Hawkins #1 wells “began producing a great deal

of water which restricted the flow of oil and gas [from them].” (Id.) “[B]ecause of the

time proximity of the increased water production in the Hawkins Wells to the fracture

treatments of the Tower Wells” and because “water production in the Hawkins Wells

increases substantially” “when the pumps in the Tower Wells are not operating,” “Max

Oil determined that the fracture treatment completions of the Tower Wells encroached

into the formations being produced in the Hawkins Wells.” (Id.)

       Max Oil and the Hawkins Family (hereinafter Max Oil) attempted to informally

settle their damages with Range. When those efforts failed, Max Oil retained an attorney.

On September 8, 2015, the attorney wrote to Range accusing it of damaging the Hawkins

Wells. In response, Range claimed the damage to the Hawkins Wells resulted from a

failure either of the plug (used to isolate the Wells from the Mississippian Formation) or

of the cement encasing the well bore. To dispel that notion, on December 15, 2015, Max

Oil tested and verified the integrity of both the plug and cement.

       On April 25, 2016, Max Oil sued Range in Oklahoma State court alleging

negligence, trespass, nuisance, and conversion. Range removed the lawsuit to federal

court a month later and filed a motion to dismiss arguing, inter alia, that the claims were


casing so that it can be pumped to the surface through the tubing.


                                            -4-
time-barred under the two-year statute of limitations, Okla. Stat. Ann. tit. 12, § 95(3).

According to Range, the petition shows Max Oil knew, or with reasonable diligence

should have known, by December 10, 2013, and March 6, 2014, of the basis of its claims.

Therefore, it had until at the latest March 6, 2016 in which to file its petition.

       The judge agreed. He said the basis of the lawsuit was “Range’s allegedly tortious

conduct that severely restricted the flow of oil and gas in the Hawkins Wells and directly

caused permanent damage” to them. (Appellant’s App’x at 337 (citation and quotations

omitted).) As the allegations in the petition revealed, the restricted flow of oil and gas in

the Heidi-Hawkins 2 was apparent on December 10, 2013, the date the Tower 32-4S was

completed, and in the Hawkins 1A-32 Well and the Hawkins #1 Well on March 6, 2014,

the date the Tower 32-5S Well was completed. He rejected any notion that the

limitations period was tolled until December 2015 when Max Oil verified the cause of the

loss of production or that it was tolled while Max Oil worked with Range to ascertain the

cause of the loss. Finally, he concluded the 15-year statute of limitations applicable to

certain trespass claims did not apply. The judge dismissed the petition with prejudice

concluding any amendment would be futile.

                                         II. Discussion

       Although the statute of limitations is an affirmative defense, dismissal under Fed.

R. Civ. P. 12(b)(6) is appropriate “when the dates given in the complaint make clear that

the right sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc., 627 F.2d

1036, 1041 n.4 (10th Cir. 1980). “We review de novo a Rule 12(b)(6) dismissal.” Elm

Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1210 (10th Cir. 2013). Because our

                                             -5-
jurisdiction sounds in diversity, we apply Oklahoma substantive law, including its statute

of limitations. Id.

       Although it raised other claims in its petition, Max Oil’s arguments on appeal are

limited to trespass and nuisance.2

       A. Trespass

       “Trespass involves an actual physical invasion of the real estate of another without

the permission of the person lawfully entitled to possession.” Williamson v. Fowler

Toyota, Inc., 956 P.2d 858, 862 (Okla. 1998); see also Fairlawn Cemetery Ass’n v. First

Presbyterian Church, U.S.A. of Okla. City, 496 P.2d 1185, 1187 (Okla. 1972)

(“[T]respass involves an actual physical invasion of the property of another.”). “An

action for trespass upon real property” must be brought within two years “after the cause

of action shall have accrued.” Okla. Stat. Ann. tit. 12, § 95(A)(3); see also Harper-

Turner Oil Co. v. Bridge, 311 P.2d 947, 949 (Okla. 1957) (“[A]n action for trespassing

on real property can only be brought within two years after the cause of action shall have

accrued.”). “[A] cause of action accrues at the time when a plaintiff first could have

maintained his action to a successful conclusion.” Okla. Brick Corp. v. McCall, 497 P.2d

215, 217 (Okla. 1972).



       2
        Max Oil makes only one argument concerning negligence: “A negligence claim
accrues when any injury to the plaintiff, for which an action could proceed, is certain and
not merely speculative.” (Appellants’ Op. Br. at 13.) This is insufficient to invoke our
appellate review of its negligence claim. See Holmes v. Colo. Coal. for Homeless Long
Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (collecting cases). Max Oil
does not raise its conversion claim on appeal.


                                           -6-
       Max Oil argues the statute of limitations did not begin to run on its trespass claim

until December 15, 2015, when it knew Range was the cause of its damages. Prior to that

time, it says, whether Range caused the damage to the Hawkins Wells was speculative

because it had not eliminated the plugging or cementing as causes. We disagree.

       According to its own allegations, Max Oil knew (1) Range operated the Tower

Wells; (2) Range completed the Tower Well 32-4S and Tower Well 32-5S with a

hydraulic fracturing treatment on December 10, 2013, and March 6, 2014, respectively,

and (3) the Hawkins Wells began producing a great deal of water restricting the flow of

oil and gas on those dates. Importantly, it alleges that due to the timing of events, as well

as the fact that water production in the Hawkins Wells increased substantially when the

pumps in the Tower Wells are not operating, it determined Range’s completion of the

Tower Wells encroached into the formations underlying the Hawkins Wells. In other

words, Max Oil knew or should have reasonably believed by March 6, 2014, that Range’s

completion of the Tower Wells caused damage to the Hawkins Wells. It did not file its

petition until April 2016, beyond the two-year limitations period.

       Max Oil balks. It says filing suit before eliminating the plug and cement as causes

would have subjected it to sanctions under Fed. R. Civ. P. 11(b)(3). It also claims it

should not be punished for first attempting to settle informally with Range in an effort to

avoid litigation. But that is exactly what statutes of limitations are for—to allow the

plaintiff adequate time to investigate, negotiate, and prepare to litigate while also

preventing prejudice to defendant by delay. See Gabelli v. S.E.C., --- U.S. ---, 133 S. Ct.

1216, 1221 (2013) (“Statutes of limitations are intended to promote justice by preventing

                                             -7-
surprises through the revival of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have disappeared.”) (quotation marks

omitted).

       Rule 11(b)(3) provides:

       By presenting to the court a pleading, written motion, or other paper—whether by
       signing, filing, submitting, or later advocating it—an attorney or unrepresented
       party certifies that to the best of the person’s knowledge, information, and belief,
       formed after an inquiry reasonable under the circumstances:

              (3) the factual contentions have evidentiary support or, if specifically so
              identified, will likely have evidentiary support after a reasonable
              opportunity for further investigation or discovery.

Subsection (c) of the rule allows sanctions to be imposed for a violation of subsection (b).

       Rule 11(b)(3) does not “relieve litigants from the obligation to conduct an

appropriate investigation into the facts that is reasonable under the circumstances” nor is

it “a license to join parties, make claims, or present defenses without any factual basis or

justification.” Fed. R. Civ. P. 11(b), (c) advisory committee’s note to 1993 amendment.

However, the rule recognizes “that sometimes a litigant may have good reason to believe

that a fact is true or false but may need discovery, formal or informal, from opposing

parties or third persons to gather and confirm the evidentiary basis for the allegation.” Id.

       Given the allegations in the petition, by March 6, 2014, Max Oil had good reason

to believe Range’s drilling operations had encroached into the Hawkins Well formations

and caused damage. At that time, not one but all three of the Hawkins Wells began

watering out. And, according to the petition, they did so on the exact dates Range

completed hydraulic fracturing of the Tower Wells. A coincidence? Probably not.


                                            -8-
Nonetheless, even if some doubt remained, the proper course would have been for Max

Oil to file suit and state in its petition that its factual contentions are made on

“information and belief.” Id. If, after further investigation, it could not support a

contention, it could have and without fear of sanctions simply not “persist[ed] with that

contention” or, if necessary, dismissed the lawsuit. Id.; see also PAE Gov’t Servs., Inc. v.

MPRI, Inc., 514 F.3d 856, 858-59 (9th Cir. 2007) (“At the time a complaint is filed, the

parties are often uncertain about the facts and the law; and yet, prompt filing is

encouraged and often required by a statute of limitations, laches, the need to preserve

evidence and other such concerns.”) (emphasis added).

       We commend Max Oil for attempting to informally settle its dispute with Range

rather than immediately resorting to litigation. But those attempts do not isolate it from

the statute of limitations. We have found no Oklahoma authority, and Max Oil cites

none, allowing settlement attempts to toll or waive the limitations period.3 And Max Oil

does not allege that Range should be estopped from raising the time bar. See Jarvis v.

City of Stillwater, 732 P.2d 470, 472-73 (Okla. 1987) (recognizing a defendant may be

estopped from raising a time bar if it gave plaintiff “some assurance of settlement

negotiations reasonably calculated to lull the plaintiff into a sense of security and delay



       3
         The Oklahoma Governmental Tort Claims Act allows the parties to agree in
writing to extend the statute of limitations for tort claims against the State and its
agencies “for the purpose of continuing to attempt settlement of the claim” but such
extension is limited to no “longer than two (2) years from the date of loss.” Okla. Stat.
Ann. tit. 51, § 157(B). This statute does not apply here and, even if it did, there is no
such written agreement between the parties.


                                              -9-
action beyond the statutory period” or “an express and repeated admission of liability in

conjunction with promises of payment, settlement or performance” or it engaged in “any

false, fraudulent or misleading conduct or some affirmative act of concealment to exclude

suspicion and preclude inquiry” which induced the plaintiff to refrain from timely

bringing an action).

       As a final straw, Max Oil argues its petition should not have been dismissed with

prejudice; it should have been allowed it to amend its petition. It could then have sought

removal of Range’s encroachment as part of its continuing trespass claim, thereby taking

advantage of a 15-year statute of limitations. See Okla. Stat. tit. 12, § 93(4); see also

Russell v. Williams, 964 P.2d 231, 235 (Okla. Civ. App. 1998) (two-year statute of

limitations for trespass to land “applies only to actions for damages resulting from [the]

trespass”; if the action seeks only to have the encroachment removed, “[t]he statute of

limitations . . . is the 15 year period for acquiring title by prescription or adverse

possession.”). If all that is correct, it should have made a proper request to amend. It did

not.

       Because Range filed a motion to dismiss, Max Oil was required to seek leave from

the court to amend its petition. Fed. R. Civ. P. 15(a)(2). A judge should “freely give

leave when justice so requires.” Id. This liberal amendment policy, however, is not

without limits. Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186

(10th Cir. 1999). It must be balanced against Fed. R. Civ. P. 7(b)(1), which requires

motions seeking a court order to (1) “be made in writing unless made during a hearing or

trial,” (2) “state with particularity the grounds for seeking the order,” and (3) “state the

                                             - 10 -
relief sought.” Id. Thus, we require a request for leave to amend to “give adequate

notice to the district court and to the opposing party of the basis of the proposed

amendment before the court is required to recognize that a motion for leave to amend is

before it.” Id. at 1186-87.

       Max Oil made its request at the conclusion of its opposition to the motion to

dismiss. It simply said: “Should the Court determine that [its] petition has flaws, [it]

would request the Court grant leave to amend prior to dismissing the case and provide [it]

an opportunity to correct the flaws.” (Appellant’s App’x at 208.) That familiar refrain,

offered as cover for not being specific, is simply inadequate. It did not give the required

notice—it did not inform the judge or Range of the basis for the proposed amendment.

We have found similar cursory requests to be insufficient. See, e.g., Calderon, 181 F.3d

at 1185 (“single sentence, lacking a statement for the grounds for amendment and

dangling at the end of [Calderon’s] memorandum [in opposition to the motion to

dismiss], did not rise to the level of a motion for leave to amend”); see also Garman v.

Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010) (plaintiff’s mere

suggestion in opposition to dismissal motion that she be allowed to amend if the court

concluded her pleadings were infirm is insufficient motion to amend); Martin v. Hilkey,

460 F. App’x 760, 762-63 (10th Cir. 2012) (unpublished) (statement in middle of

opposition to dismissal motion that “in the event this Court finds that Plaintiffs’

Complaint is somehow deficient, Plaintiffs’ [sic] would simply ask for leave to file an

amended complaint which cures any deficiencies” is inadequate) (quotation marks

omitted). In each of these cases, we found no abuse of discretion in refusing leave to

                                            - 11 -
amend when a proper motion was not presented. The same result ensues here.

       B. Nuisance

       “A nuisance, public or private, arises where a person uses his own property in such

a manner as to cause injury to the property of another.” Fairlawn Cemetery Ass’n, 496

P.2d at 1187. “The statute of limitations applicable to nuisance claims in Oklahoma is

two years.” N.C. Corff P’ship, Ltd. v. OXY USA, Inc., 929 P.2d 288, 293 (Okla. Civ.

App. 1996). However, “[t]o the extent damages caused by a nuisance are temporary in

nature—i.e., damages reasonably capable of abatement—they will be held not permanent

and the statute will not begin to run until injury is suffered. Recoverable damages are

limited to the two years immediately preceding the filing of the action . . . .” Id.

(citations omitted); see also Moneypenny v. Dawson, 141 P.3d 549, 554 (Okla. 2006)

(“For . . . temporary damage [caused by a nuisance] a plaintiff may bring successive

actions each time the wrong occurs . . . and the statute of limitations would bar recovery

only for damage occurring more than two years prior to a suit’s filing.”). If, on the other

hand, “the nuisance is not abatable (i.e., is permanent), then the statute begins to run at

such time as it becomes obvious and apparent that the land in question has been

permanently damaged.” N.C. Corff P’ship, Ltd., 929 P.2d at 293; see also Moneypenny,

141 P.3d at 554 (“As to any permanent damage Plaintiff claims was caused, the period of

limitation would not commence for such permanent damage to realty until the damage is

apparent and it becomes obvious that such damage is of a permanent character.”)

(quotation marks omitted).




                                            - 12 -
       Max Oil argues it alleged a continuing and ongoing nuisance claim—Range’s

operation of the Tower Wells continues to water out the Hawkins Wells. Thus, it has a

viable claim against Range for damages starting April 25, 2014, two years before it filed

its petition.

       But other than a conclusory statement about the continuing and ongoing nature of

the alleged nuisance, Max Oil did not allege that the nuisance and the damages arising

therefrom are temporary/abatable. To the contrary, its allegations point to the nuisance

and its damages as permanent: “The damage to the Hawkins Wells producing formations

caused by the encroachment of the hydraulic fracture treatment into said formations is

continuing and permanent” and “[Range’s] hydraulic fracture treatment encroach[ment]

into the Hawkins Wells producing formations . . . permanently damaged said wells.”

(Appellant’s App’x at 32.) It repeated this in its response to Range’s motion to dismiss:

“Plaintiffs seek redress for damages caused by improper oil and gas drilling operations

conducted by [Range]. In the course of [its] operations, [Range], by and through [its] oil

and gas drilling operations, encroached upon and permanently damaged wells owned and

operated by [Max Oil].” (Id. at 200-201.) And it admitted “it is unclear as to whether

removal of the [encroachment] would ever correct [it] and related damages created by

[Range].” (Id. at 203.)

       Even assuming it did not properly plead a temporary nuisance, Max Oil says the

judge should have given it the opportunity to amend its complaint to do so. But again, a

proper request to amend was never made. The judge cannot be faulted for a lack of

prescience.

                                          - 13 -
AFFIRMED.



            Entered by the Court:



            Terrence L. O’Brien
            United States Circuit Judge




            - 14 -
