Ness et al v. Samson Resources et al

Filing 120

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 37 Motion to Dismiss; granting 41 Motion to Dismiss; granting 46 Motion to Dismiss; finding as moot 49 Motion for Summary Judgment; finding as moot 58 Motion to Strike ; findi ng as moot 70 Motion for Preliminary Injunction; finding as moot 71 Motion for Preliminary Injunction; granting 100 Motion to Dismiss; granting 103 Motion to Dismiss; granting 106 Motion to Dismiss; granting in part 114 Motion For Leave to File and to Unseal Documents; granting 14 Motion to Dismiss; granting 14 Motion to Dismiss; granting 17 Motion to Dismiss. (BG) Distributed on 2/15/2019 (rh).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Mr. and Mrs. Lloyd Odell Ness

)
)
Plaintiffs,
)
)
vs.
)
)
Samson Resources, Samson Investments, )
KKR (Kravis, Kohlberg, Roberts), Magnum )
Hunter, Bakken Hunter, ONEOK Partners, )
ONEOK, and OKS,
)
)
Defendants.
)

ORDER GRANTING
MOTIONS TO DISMISS
Case No. 4:15-cv-00063

Plaintiffs in this action seek a litany of damages and other relief based on largely conclusory
allegations that defendants have engaged in an industry-wide scheme to defraud royalty and other
mineral interest owners of the correct amounts owed to them on the production of natural gas,
including from oil and gas wells in which plaintiffs have an interest. Plaintiffs are proceeding pro
se despite the court’s urging that they retain counsel.
Following the first of several motions to dismiss, plaintiffs filed a document entitled
“Amendment of Complaint.” But, rather than restating and amending the allegations of the original
complaint, plaintiffs’ amendment attempts to expand upon the parties that plaintiffs claim they are
suing and plead additional acts committed in furtherance of the purported fraud— at least as best
this court can decipher it.
Finally, and to complicate matters further, several of the defendants filed for bankruptcy
before the court could get to the motions to dismiss. This resulted in the court staying the entire
action for a considerable period of time while plaintiffs pursued claims in one of the bankruptcy
cases. When the court finally lifted its stay of this action, it allowed the parties to supplement the
1

pending motions to dismiss based upon the events that had transpired. What is now before the court
are defendants’ motions to dismiss as well as certain other motions filed by plaintiffs.
I.

BACKGROUND
A.

Plaintiffs’ complaint
1.

Plaintiffs’ interests

Plaintiffs allege in the complaint that they have an interest in the production from a number
of wells that have been drilled in Divide County, North Dakota.

The complaint alleges that

defendant Samson Resources is the operator of all but one of the wells and defendants Bakken
Hunter and Magnum Hunter are the operators of the remaining well.
While alleging that they have an interest in the production from the wells, plaintiffs have not
alleged the basis of their claimed interests, e.g., making reference to any deeds, leases, wills, pooling
orders, or pooling agreements that might give rise to and govern the scope of their interests. Also,
plaintiffs have not alleged the amount of their interests. These points are of some significance later.
2.

Plaintiffs’ claims for relief

It is difficult to tell from the complaint’s rambling and conclusory allegations what plaintiffs’
claims are. However, the general thrust appears to be plaintiffs’ belief that they have not been fully
compensated for amounts owed on their interests in the production of gas from the wells in which
they have an interest because of an industry-wide conspiracy to defraud royalty owners by deducting
from amounts payable on their interests expenses that are improper or inflated and using “accounting
chicanery” to cover it up. There are also vague and conclusory allegations that the gas from the
wells was sold for less than market value and that defendants have in some unexplained fashion
managed to limit the market for the sale of the gas. In addition, there are conclusory allegations that

2

one or more of the defendants was receiving “kickbacks” as purported incentives for their
participation in the fraud.
As the basis of their entitlement to relief, plaintiffs allege that the purported fraudulent
conduct violated the Sherman Anti-Trust Act, the Sarbanes-Oxley Act of 2002, the Racketeer
Influenced and Corrupt Organizations Act (“RICO’), and “The Securities Act” (which they claim
is also known as “the truth in securities” Act). Plaintiffs also allege that defendants’ purported
fraudulent and wrongful acts violated “North Dakota state laws and codifications” but without
expressly identifying which ones.
As discussed later, plaintiffs do not appear to have pled any state law causes of action other
than, perhaps, fraud. This reading of the complaint is consistent with how plaintiffs themselves have
characterized the causes of action being asserted. In the Civil Cover Sheet that plaintiffs completed
with the complaint, they stated in both the first and second pages that the causes of action being
asserted are for Antitrust, Racketeering, Securities Act fraud and accounting fraud. (Doc. No. 11). Also, there are no allegations making reference to specific instruments or agreements that would
give rise to a state law claim for breach of contract.
3.

Allegations pertaining to the court’s jurisdiction

The only basis explicitly alleged in the complaint for the court’s jurisdiction is that based on
diversity of citizenship. This is consistent with Civil Cover Sheet prepared by plaintiffs in which
they checked the box stating that the basis for the court’s jurisdiction is “Diversity” and did not
check the box for “Federal Question” jurisdiction. (Doc. No. 1-1). Nevertheless, the complaint does
allege violations of federal law and whether those allegations are sufficient to provide “federal
question” jurisdiction under 28 U.S.C. § 1331 is addressed later.

3

Plaintiffs’ allegations with respect to jurisdiction based upon diversity under 28 U.S.C. §
1332 are also problematic in two respects. The first has to do with whether the allegations
sufficiently demonstrate the existence of “complete diversity” of citizenship between plaintiffs and
all of the defendants. The only reasonable construction of the complaint is that plaintiffs are
claiming they are citizens of the state of Arizona.1 As for the defendants, the complaint sets forth
addresses that, variously, are in the states of New York, Texas, and Oklahoma. But, one of the
problems with this is other evidence before the court which makes clear that several of the
defendants are limited liability companies or limited partnerships. As to these defendants, plaintiffs
have not accounted for the fact that their citizenship is that of their members or partners. This point
will be returned to later.2
The second problem with respect to plaintiffs’ allegations of diversity of citizenship are its
threadbare allegations that the amount-in-controversy is between $75,000 and $1,000,000. Given
the lack of pled facts setting forth the amount of plaintiffs’ interests in the gas production as well
as facts that would provide some indication of the delta between what plaintiffs believe they should
have received versus what they were actually paid, it cannot be determined from the face of the
complaint whether the $75,000 threshold for diversity of jurisdiction could be reached, particularly
without the help of plaintiffs’ being able to claim attorney’s fees or some form of enhanced or
penalty damages. In most cases this is not a problem given that it does not take much these days to

1

Plaintiffs allege that they do not dwell in North Dakota and then provide an Arizona mailing address both
within the body of the complaint and at the end following their signatures. The only reasonable conclusion that can be
drawn from this is that plaintiffs are claiming Arizona as their residence for purposes of diversity of citizenship.
2

It also cannot be determined from the complaint whether there is complete diversity for the defendants who
appear to be corporations since the information in the complaint with respect to where they are incorporated and where
they have their principal places of business is incomplete. However, after considering the filings of defendants, the lack
of complete diversity does not appear to be a problem with respect to the corporate defendants.

4

satisfy § 1332's monetary threshold. But, in this case, there is evidence from the one of the
bankruptcy proceedings that plaintiffs’ interests in the production from the wells in question is
relatively small—as compared to the totality of the Ness family interests that plaintiffs are not
permitted to represent. Given the small size of plaintiffs’ interests, the evidence in the bankruptcy
proceeding is that the expenses that were the primary basis for the claims of fraud were less than two
thousand dollars for the wells operated by Sansom Resources during the time frame relevant to that
proceeding. This probably means that any similar expenses would be even smaller for the one well
operated by Bakken Hunter/Magnum Hunter. And, while there is a conclusory allegation that the
gas was marketed at below market prices, the gas prices appear to have been depressed thereby
reducing any potential damage.
4.

The defendants named in the complaint

It is apparent from the record now before the court that the names of the defendants in the
complaint are not legally precise, so some judgment must be used to determine the identity of the
entities plaintiffs have sued. With that said, and for purposes of the analysis that follows, the
individual defendants named in the complaint fall within one of the following four groups:
a.

The “Samson defendants”

Two of the entities that plaintiffs have named as defendants are “Samson Resources” and
“Samson Investments” (collectively herein the “Samson defendants”). The Samson defendants state
in their corporate disclosure statement and their renewed motion to dismiss that there is a Samson
Resources Company (an Oklahoma corporation) and a Samson Resources Corporation (a Delaware
corporation). They presumes that plaintiffs have intended to sue Samson Resources Company,
since that is the company that is engaged in the production of oil and gas from wells located in

5

Divide County, North Dakota and the complaint makes references to “Samson Resource Company”
as being the operator of all but one of the wells in which plaintiffs claim an interest. The Samson
defendants further state that the correct name for “Samson Investments” is Samson Investment
Company, which they state is the parent of Samson Resources Company.
As discussed in more detail later, the named Samson defendants, along with other affiliated
Samson companies, filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy
Code on September 16, 2015. The Samson defendants contend that plaintiffs’ claims in this action
have either been discharged in the bankruptcy action or are now barred on the grounds of res
judicata based upon plaintiffs having litigated their claims in the bankruptcy court and that court
having determined they lacked merit.
b.

The “ONEOK defendants”

Plaintiffs also name as defendants ONEOK Partners, ONEOK, and OKS (hereinafter
collectively the “ONEOK defendants”). The ONEOK defendants state in their initial motion to
dismiss that: (1) the correct name of ONEOK Partners is ONEOK Partners, L.P., (2) the correct
name of ONEOK is ONEOK, Inc.; and (3) that OKS is not an entity of any kind, but rather is the
New York Stock Exchange symbol for ONEOK Partners, L.P. Based on the record before the court,
the only reasonable conclusion is that the actual identities of the defendants named in the complaint
are ONEOK, Inc. and ONEOK Partners, L.P. (herein “ONEOK Partners”), which, collectively, will
be referred to as the “ONEOK defendants.”
The evidence before the court is that, at the time of the filing of the complaint, ONEOK
Partners was a publicly-traded master limited partnership with unit holders in Arizona. The fact that
the presence of ONEOK Partners in this action destroys diversity jurisdiction unless corrected is

6

discussed later.
c.

Bakken Hunter and Magnum Hunter

Plaintiffs also name as defendants “Bakken Hunter” and “Magnum Hunter.” Bakken Hunter
and Magnum Hunter state in their initial joint pleading that they assume plaintiffs are intending to
sue Bakken Hunter, LLC, and Magnum Hunter Resources Corporation.

According to a later

motion to dismiss filed by these entities, Bakken Hunter is an indirect subsidiary of Magnum Hunter,
which has since changed its name to Blue Ridge Mountain Resources, Inc.
On December 15, 2015, Bakken Hunter and Magnum Hunter filed voluntary petitions for
relief under Chapter 11 of the Bankruptcy Code, but have since emerged from bankruptcy. Unlike
the Samson defendants, neither Bakken Hunter nor Magnum Hunter contend that any claims that
plaintiffs may have in this action were discharged in those bankruptcy actions.
Finally, since Bakken Hunter appears to be a limited liability company, the citizenship of its
members at the time of the filing of the complaint would have to be determined to ensure that the
court has complete diversity if this action was to continue.
d.

KKR

Plaintiffs have also named as a defendant in the complaint “KKR (Kravis, Kohlberg,
Roberts).” This defendant states in its motion to dismiss that there is no entity named “KKR
(Kravis, Kohlberg, Roberts)” and presumes plaintiffs have intended to sue Kohlberg Kravis Roberts
& Co. L.P. (herein “KKR”). KKR states it is an investment advisor for investment funds that
make private equity and real asset investments. KKR states it led a consortium of oil and gas
investors that acquired Samson Investment Company in 2011 through an entity organized for
purposes of the acquisition, which originally was named Tulip Acquisition Corporation but changed

7

its name to Samson Resources Corporation. KKR claims that, as an investment advisor, it did not
own any equity interest in the Samson defendants and that, while equity interests in the Samson
defendants were previously owned by affiliates of KKR, including certain investment funds
managed by KKR, KKR did not operate or manage the business of the Samson defendants. KKR
further states that, following the Samson defendant bankruptcies, KKR does not own any equity in
or have any relationship with the Samson defendants.
KKR states there is also KKR & Co. L.P., which is KKR’s parent company and a publiclytraded master limited partnership. KKR states that KKR & Co. L.P. may very well have had unit
owners residing Arizona at the time of the filing of the complaint since it was publicly traded, which
also would destroy diversity. For purposes of what follows, the court will presume that the only
entity properly named and served is KKR (i.e., Kohlberg Kravis Roberts & Co. L.P.) and not KKR
& Co. L.P. However, it does not make a difference because all of the reasons set forth below for
why KKR must be dismissed would also apply to KKR & Co. L.P. Further, if this action was
permitted to continue as to either KKR or KKR & Co. L.P., or both, the court would have to
determine the citizenship of their general and limited partners at the time of the filing of the
complaint in order to ensure that the requirement for complete diversity would be satisfied.
Finally, plaintiffs repeatedly make reference in the complaint to “Samson KKR.”
Apparently, this reflects their speculation that KKR exercised actual control over the operations of
the Samson defendants. Plaintiffs conclusory and speculative allegations that KKR and the Samson
defendants were acting in concert do not make a difference in terms of the resolution of the motions
to dismiss.
B.

Plaintiffs’ “Amendment to Complaint”

8

After the first motion to dismiss was filed, plaintiffs attempted to amend their complaint by
filing a fourteen-page “amendment.” (Doc. No. 30). As already noted, the amendment does not
restate and amend the original complaint. Rather, it is clear from the pleading that plaintiffs intend
that it be a supplement.
In the amendment, plaintiffs attempt to expand upon the defendants they claim are being
sued by setting forth a long list of entities, purportedly related to either KKR or the Samson
defendants, who have never been served and who have otherwise not appeared in this action. Aside
from that, the fourteen-page amendment sets forth additional allegations with respect to the
purported interrelationships among the original defendants and those that plaintiffs intend to add
along with repeating a number of the conclusory allegations of fraud and wrongdoing on the part
of the entities.
In responding to plaintiff’s pleadings, most of the defendants have taken the position that,
while they believe the attempted amendment was not proper, it does not make a difference since the
complaint would have to be dismissed as to them even if the attempted amendment was given effect.
Bakken Hunter and Magnum, on the other hand, argue that the only viable pleading is the
amendment and, since the amendment (as opposed to the complaint) contains no specific allegations
directed to them, they must be dismissed from the action for that reason alone.
C.

The Samson defendants bankruptcy actions

On September 16, 2015, the named Samson defendants (along with several other affiliated
Samson companies) filed voluntary petitions for bankruptcy in the District of Delaware under the
reorganization provisions of Chapter 11 of Title 11. The separate bankruptcy proceedings were
jointly administered in the case entitled In re Samson Resources Corp., No. 15-11934 (Bankr. D.

9

Del.) (hereinafter “bankruptcy action” or “In Re Samson Resources Corp.”).
Plaintiff Lloyd Ness (“Ness”) appeared pro se in the bankruptcy action, including filing a
proof of claim for “royalties owed” contending that the amount of the claim with interest at 18% was
between $75,000 and $1,000,000 (the “Ness claim”).3 (In Re Samson Resources Corp, Doc No.
677-3, p. 2). The Samson defendants filed an objection to the Ness claim and discovery ensued. On
July 6, 2016, the bankruptcy court conducted an evidentiary hearing on the Samson defendants’
objection to the Ness claim. (Id., Doc. No. 1151). The transcript of the hearing (“Claim Objection
Hearing”) has been filed in this action at Doc. No. 96-4 and the page references will be to page
numbers of the transcript.
During the Claim Objection Hearing, the Samson defendants presented evidence that
included the following:
C

The amounts payable to Ness from the production of wells operated by Samson
Resources are governed by the terms of an oil and gas lease granted by Lloyd Ness’s
stepmother (“Ness lease”), which Ness ratified along with other members of the Ness
family.

C

The wells in question produced natural gas in addition to oil and there was no
practical way to produce just the oil and not the natural gas.

C

Because the North Dakota Industrial Commission placed limits on the amount of
natural gas that could be flared, Samson Resources was required to capture and
market the gas if it wanted to produce the oil, even if had to produce and market the

3

While the court in other places refers to plaintiffs’ interest in the gas production, it appears that any interest
that Mrs. Ness might have (if any) would be that acquired through Mr. Ness. Only Mr. Ness appeared in the bankruptcy
action.

10

gas at a loss.
C

Before the gas could be marketed, it had to be processed for sale because the gas was
too “rich” for use and also because certain liquids had to be removed. Because
Samson Resources did not own the facilities and pipelines required to process and
market the gas, it solicited proposals from some 10–12 “midstream processing
companies” to purchase the gas. The party that Samson Resources selected and
contracted with was a ONEOK affiliated entity, “ONEOK Rockies Midstream, LLC”
(“ONEOK Midstream”).

C

ONEOK did not own an interest in Samson Resources and was not affiliated with it
in any way. The contract with ONEOK Midstream was the result of an arm’s length
negotiation and reflected the most favorable terms available.

C

Under the gas purchase contract, ONEOK Midstream deducted the expenses required
to process and transport the gas from the amount paid to Samson Resources for the
gas purchased.

C

There was no other market for the gas that Samson Resources produced in substantial
part because the only infrastructure in place that could take way and process the gas
were facilities constructed and owned by a ONEOK affiliated company following the
execution of the gas purchase agreement.

C

Because there was no other market for the sale of the gas and Ness never took the gas
“in kind,” Samson employed a “netback method” of calculating the value of the gas
at the wellhead for purposes of determining the amounts owed Ness for the produced
gas based on his interests. The “net back” method involved taking Ness’s

11

proportionate share of the gross revenue that Samson Resources was entitled to
receive under the gas purchase agreement less Ness’s proportionate share of the postproduction expenses incurred by Samson Resources pursuant to the gas purchase
agreement.
C

During at least part of the time in question, the cost of processing the gas exceeded
its market value. Hence, Ness received nothing for the gas that was produced. Also,
for part of the period in question, Samson Resources deducted the excess expenses
required to produce the gas from what was owed Ness on the oil production. Later,
however, Samson Resources reversed course and reimbursed Ness and the other
royalty owners the amounts that were offset from what was payable on the oil
production without conceding its argument that it was entitled to make the offsets
since the oil could not be produced without also producing the gas.

C

From about November 2012 when Samson Resources started paying Ness for his
interest in the production of the Samson operated wells through on or about the end
of 2015, the post-production expenses, which were the principal focus of Ness’s
complaints, were just under two thousand dollars.4

(Claim Objection Hearing Tr. pp. 80–109).
During the hearing, Ness challenged the Samson defendants’ evidence presented by the
Samson defendants, including cross-examining the witnesses called by the Samson defendants and
presenting his own evidence. The primary focus of what Ness presented was his contention that he
was being cheated by the Samson defendants valuing the gas for purposes of calculation of the
4

In this case, both Mr. and Mrs. Ness have sued. However, it clear that interests at issue were acquired by
Mr. Ness and that Mrs. Ness does not have any independent ownership interest.

12

amounts payable on his interests by using the “net back” method, which resulted in him being paid
nothing on the gas given the depressed prices market prices and, for a period of time, the excess
expenses being deducted from the amounts payable on his interests in the oil production. Ness
contended that the use of the “net back” method violated the terms of the Ness lease and was not
otherwise permitted under North Dakota law. (Id. at pp. 110–93).
Ness also offered as part of the defense of his filed claim the following:
C

Ness contended the improper deducting of expenses violated federal securities law
and offered an exhibit stating that factional undivided interests in oil and gas or other
mineral rights are a security.

C

Ness argued that a provision in the gas purchase agreement between Samson
Resources and the ONEOK affiliate company amounted to an improper kickback.

C

Ness complained about the 21 percent of the production that the ONEOK affiliate
obtained under the gas purchase agreement for its processing fee.

C

Ness claimed that Samson Resources and ONEOK could get away with ONEOK
charging the expenses and purportedly kicking back amounts to Samson Resource
because ONEOK was the “only game in town” and “that’s called a monopoly.” He
further referred to Samson Resources and ONEOK as being a “corrupt group.”

C

He further complained about the opaqueness of the information he and other royalty
owners were provided by Samson Resources and suggested this was deliberately
being done in order to cover up the corrupt and unlawful conduct.

(Id.).
Following the hearing, the bankruptcy court upheld the objection of the Samson defendants

13

and disallowed and expunged the Ness claim. In so ruling, the court concluded:
C

The court had jurisdiction to adjudicate the Ness claim and enter a final order.

C

Neither the lease pursuant to which Ness’s interest was calculated nor North Dakota
law prohibited the use of the “net back” method of calculating the value of the gas
for purposes of determining the amounts to be paid to Ness on his interests. In so
concluding, the court relied upon Bice v. Petro-Hunt, L.L.C., 768 N.W.2d 496 (N.D.
2009), in which the North Dakota Supreme Court upheld the use of the “net back”
method under lease language virtually identical to the Ness lease. Further, the
bankruptcy court noted that the North Dakota Supreme Court’s decision in Bice
relied in part on the same conclusion that the Eighth Circuit had earlier reached in
Hurinenko v. Chevron, USA, Inc., 69 F.3d 283 (8th Cir. 1995), when it predicted
what likely was the law in North Dakota prior to the North Dakota Supreme Court
definitively deciding the point in Bice.

C

Samson Resources appropriately employed the “net back” method and properly
deducted the post-production expenses challenged by Ness.

C

Ness misread the provision of the gas purchase agreement that he contended
amounted to a “kickback.” The court concluded it did not have the nefarious effect
Ness claimed.

C

Ness had not proved that he suffered any loss as result of excess gas expenses being
offset against the portion of royalty attributable to the oil production given the
evidence of reimbursements made by Samson Resources. However, even if there
had been no reimbursement, Samson Resources had the right under the lease

14

language and North Dakota law to offset any excess expenses incurred in making the
gas marketable against the amounts payable on the oil production. In reaching this
conclusion, the court relied in part upon the lack of anything in Bice that would
suggest a different result as well as the Eighth Circuit’s decision in Hurinenko.
In re Samson Resources Corporation, 559 B.R. 360 (2016). Finally, implicit in the denial of the
Ness claim was Ness’s inability to prove his contentions (1) that certain of the complained about
expenses were improper or inflated, (2) the gas had been sold at below market prices, (3) he was the
victim of fraud, or (4) that any federal law had been violated.
Ness subsequently moved for reconsideration and the Samson defendants objected.
Following a second hearing at which Ness again personally appeared, the bankruptcy court on
November 16, 2016, entered a written order denying the motion for reconsideration for the reasons
articulated on the record at the hearing. (In re Samson Resources Corp., Doc. Nos. 1408, 1633, 1661
and 1665).
Ness then filed an appeal with the district court. On August 23, 2017, the district court
dismissed the appeal on grounds of lack of jurisdiction after concluding Ness’s appeal was untimely.
Ness v. Samson Resources Corp., No. 16-1156 (D. Del. Order dated Aug. 23, 2017) (filed in this
case at Doc. No. 96-3). There is no record of any appeal to the Second Circuit Court of Appeals.
Hence, the decision of the bankruptcy court is the final decision in terms of the adjudication of the
Ness claim.
Separate from the proceeding in which the bankruptcy adjudicated and denied the Ness
claim, the bankruptcy court on February 21, 2017, affirmed a plan of reorganization that, in Article
VII, § B, discharged the Samson defendants from all claims and causes of action of any nature

15

whatsoever that existed against the Samson defendants prior to the final effective date of the plan.
(In Re Samson Resources, Corp., Doc Nos. 2019 (order approving plan) & 2019-1 (approved plan
filed in this case at Doc. No. 105-1).
II.

ANALYSIS
A.

The lack of “federal question” jurisdiction
1.

Introduction

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). The burden of demonstrating the court’s jurisdiction is upon the party
invoking it, and it may not be shifted to another party. See, e.g., Compart’s Boar Store, Inc. v.
United States, 829 F.3d 600, 604 (8th Cir. 2016); Great Rivers Habitat All. v. Fed. Emergency
Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). Because of this, Fed. R. Civ. P. 8(a)(1) requires
that the complaint set forth a short and plain statement of the grounds for the court’s jurisdiction.
As noted above, the only basis explicitly alleged in the complaint for the court’s jurisdiction
is diversity jurisdiction. On the other hand, plaintiffs have attempted to plead claims of violations
of federal law. But simply claiming that federal laws have been violated is not enough. The
allegations of violation of federal law must be “well-pled.” See, e.g., Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983) (federal question jurisdiction exists
only in “those cases in which a well-pleaded complaint establishes either that federal law creates the
cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.”); Great Lakes Gas Transmission Limited Partnership v. Essar Steel
Minnesota LLC, 843 F.3d 325, 329 (8th Cir. 2016) (same).
In this case, the defendants all contend that plaintiffs have failed to plead viable claims of

16

violation of federal law. Before turning to the federal laws that plaintiffs claim have been violated,
the court will first outline the requirements for pleading a well-pled claim.
2.

Pleading requirements

To meet the minimal pleading requirements of Rule 8(a)(2) for stating a cognizable claim,
something more is required than simply expressing a desire for relief and declaring an entitlement
to it. See Bell Atlantic Corp. v. Twombly, 556 n.3 (2007) (“Twombly”). The complaint must state
enough to “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Id. at 555. Also, the complaint must state enough to satisfy the “plausibility standard” for
stating a cognizable claim as established in Twombly and further amplified by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662, 678–84 (2009) (“Iqbal”).
Under the Iqbal/Twombly plausibility standard, the complaint must state enough factual
matter, which accepted as true, states a claim that is plausible on the face of the allegations. See id.
A claim crosses the threshold of being plausible when the factual allegations do more than merely
create a suspicion of a legally cognizable action and “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Complaints that offer nothing more than labels and conclusions
or a formulaic recitation of the elements are not sufficient. Twombly, 550 U.S. at 555; Iqbal, 556
U.S. at 680–81. Determining whether a complaint states a plausible claim is “a context specific
task” that requires the court “to draw on its judicial experience and common sense.” Iqbal, 556 U.S.
at 679. “A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
the facts alleged is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550
U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Finally, even though a pro se litigant’s complaint is entitled to a liberal construction, the

17

minimal pleading requirements of Iqbal and Twombly must still be satisfied. E.g., Story v. Foote,
782 F.3d 968, 969 (8th Cir. 2015) (“To state a claim, . . . [the pro se litigant’s] complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.”) (internal quotation marks omitted and citing Twombly and Iqbal).
3.

Plaintiffs’ claims of violation of federal law

Defendants contend that the complaint’s largely conclusory allegations of violation of federal
law fail to meet the Iqbal/Twombly requirements. For the reasons set forth below, the court agrees.
a.

Alleged violations of federal securities laws

Plaintiffs refer in the complaint to (1)“The Securities Act,” which they claim is also known
as “the truth in securities” Act, (2) to “trading securities,” and (3) “employing mathematical
corruption to securities.” However, plaintiffs have not set forth allegations that demonstrate how
any federal securities law relates to what appears to be the thrust of their complaint, which is that
defendants were somehow involved in a scheme to value the gas production from the wells in which
plaintiffs’ had an interest at below market prices and also to make improper deductions from the gas
revenue. Cf. Harris v. Union Elec. Co., 787 F.2d 355 (8th Cir. 1986). The mere fact that mineral
or royalty interests at issue here might constitute a security for purposes of federal securities laws
does not automatically invoke these law. Rather, to invoke federal securities laws, plaintiffs must
be able to show a causal connection between the alleged wrongful conduct and some transaction that
falls within the scope of the laws, e.g., plaintiffs being induced to willfully purchase or sell a
security that resulted in a loss to plaintiffs. In this case, plaintiffs have failed to allege sufficient
facts to plausibly invoke the application of federal securities law in this case much less that any
alleged fraud actually induced them to act as opposed to transactions that occurred simply as result

18

of their owning an interest. See, e.g., McAdams v. McCord, 584 F.3d 1111, 1113–15 (8th Cir.
2009); Schaaf v. Residential Funding Corp., 517 F.3d 544, 549–50 (8th Cir. 2008).
b.

Alleged violations of federal antitrust laws

Plaintiffs assert that defendants violated the Sherman Act and the Clayton Act, but do not
specify which sections of the Acts or, even more importantly, the manner in which the Acts have
been violated. To state a claim under § 1 of the Sherman Act, a plaintiff must plausibly identify an
“illegal contract, combination, or conspiracy which results in an unreasonable restraint of trade.”
Double D Spotting Service, Inc. v. Supervalu, Inc., 136 F.3d 554, 558 (8th Cir. 1998) (“Double D”)
(quoting State Oil Co. v. Khan, 522 U.S. 3 (1997)); Twombly, 550 U.S. at (“[W]e hold that stating
such a [§ 1] claim requires a complaint with enough factual matter (taken as true) to suggest that an
agreement was made. Asking for plausible grounds to infer an agreement does not impose a
probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal agreement.”). In this case, plaintiffs’
complaint contains only threadbare allegations of an unlawful combination or conspiracy and
nothing that plausibly suggests that the alleged wrongful conduct resulted in a restraint of trade.
To state a claim under § 2 of the Sherman Act, a plaintiff must “plead and prove that the
defendant ‘(1) possessed monopoly power in the relevant market and (2) willfully acquired or
maintained that power as opposed to gaining it as a result of a superior product, business acumen,
or historical accident.’” Double D, 136 F.3d at 560 (quoting Amerinet, Inc. v. Xerox Corp., 972
F.2d 1483, 1490 (8th Cir. 1992)). Plaintiffs’ complaint fails to address these elements, much less
plead sufficient facts to state a plausible claim under Section 2.
Finally, the complaint also fails to plead sufficient facts to set forth a plausible claim that

19

defendants engaged in conduct prohibited by the Clayton Act, much less that the conduct plausibly
resulted in an unlawful restraint of trade. See generally 54 Am. Jur. 2d Monopolies and Restraints
of Trade §§ 138–72 (last updated Jan. 2019).
c.

Alleged violations of Sarbanes-Oxley

Plaintiffs also allege that defendants have violated Sarbanes-Oxley. However, they have
failed to plead sufficient facts that would call into play its provisions, much less the limited few that
create a private cause of action, i.e., the anti-retaliation provisions under 18 U.S.C. § 1514A(a) or
the provisions of 15 U.S.C. § 7244(a)(1) (Section 306) that prohibit directors and executive officers
from trading during any blackout period equity securities obtained in connection with the providing
of their services or employment. See, e.g., In re Digimarc Corp. Derivative Litig., 549 F.3d 1223,
1230–33 (9th Cir. 2008) (holding no private right of action exists under Section 304 because, unlike
Section 306, there is nothing in the law that suggests Congress intended a private remedy for
violation of Section 304).
d.

Alleged violations of RICO

Finally, plaintiffs also allege that defendants violated the Racketeer Influenced and
Corrupting Organizations Act (“RICO”).
RICO prohibits “any person employed by or associated with any enterprise
engaged in ... interstate ... commerce, to conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”
18 U.S.C. § 1962(c). RICO, however, “‘does not cover all instances of wrongdoing.
Rather, it is a unique cause of action that is concerned with eradicating organized,
long-term, habitual criminal activity.’” Doe, 660 F.3d at 353 (quoting Gamboa v.
Velez, 457 F.3d 703, 705 (7th Cir.2006)). To establish their civil claim under RICO,
H & Q must show that the appellees engaged in “‘(1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity.’” Nitro Distrib., Inc. v. Alticor, Inc.,
565 F.3d 417, 428 (8th Cir.2009) (quoting Sedima S.P.R.L. v. Imrex Co., 473 U.S.
479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)).

20

H & Q Properties, Inc. v. Doll, 793 F.3d 852, 855–56 (8th Cir. 2015) (“H & Q Properties”).
In this case, the allegations in the complaint do not sufficiently address the required elements
to establish a RICO claim. See, e.g., Nelson v. Nelson, 833 F.3d 965, (8th Cir. 2016) (affirming
dismissal of a RICO claim because plaintiff failed to plead sufficient facts as to the existence of an
enterprise); H & Q Properties, 793 F.3d at 855–57 (affirming dismissal of RICO claim for failing
to adequately plead “racketeering activity”); Danielson v. Huether, __ F. Supp. 3d __, 2018 WL
6681768, at *16 (D.S.D. 2018) (“Danielson”) (pleading a RICO claim requires alleging the two
or more related predicate acts that are claimed to constitute the pattern of racketeering activity).
This includes the failure to plead with particularity the alleged fraudulent conduct as required by
Fed. R. Civ. P. 9(b). See, e.g., H & Q Properties, 793 F.3d at 856 (“Federal Rule of Civil Procedure
9(b) requires that [i]n alleging fraud ... a party must state with particularity the circumstances
constituting fraud. The [c]ircumstances of the fraud include such matters as the time, place and
contents of false representations, as well as the identity of the person making the misrepresentation
and what was obtained or given up thereby.”) (internal quotations and citing authority omitted);
Danielson, 2018 WL 6681768, at *18 (failure to plead sufficient facts to state with particularity the
fraud claimed to one of the predicate acts of racketeering activity as required by Rule 9(b)).
4.

Conclusion re the federal claims and the lack of “federal question”
jurisdiction

In summary, the court concludes that plaintiffs’ conclusory allegations that the two oil field
operators in this case conspired with others to set below market prices for the sale of oil and gas and
then deduct from that the less-then-market-value stream of revenue improper deductions in
calculating the amount of royalties owed plaintiffs are not enough to state plausible claims for relief

21

under any of the federal laws referenced by plaintiffs in their complaint.5 In the absence of well-pled
claims for violation of federal law, federal question jurisdiction is lacking.
B.

The problems with plaintiffs’ claim of diversity jurisdiction

In the seminal case of Strawbridge v. Curtiss, 3 Cranch 267 (1806), the United States
Supreme Court held that the exercise of federal diversity jurisdiction requires complete diversity
between adverse parties such that, if any plaintiff is a citizen of the same state as any defendant,
diversity is destroyed. Since its decision in Strawbridge, the Supreme Court has not deviated from
this holding. See, e.g., Americold Realty Trust v. Conagra Foods, Inc., __ U.S.__, 136 S.Ct. 1012,
1015 (2016); Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2005); Carden v.
Arkoma Associates, 494 U.S. 185, 187 (1990) (“Carden”).
In Carden, the Supreme Court held that the citizenship of each partner, including limited
partners, must be considered in determining the citizenship of a limited partnership. 494 U.S. at
187–98. Further, the lower federal courts have held that the Supreme Court’s holding in Carden
applies to master limited partnerships. Chace v. Magellan Ammonia Pipeline, L.P., No. 8:18-cv113, 2019 WL 78996, **4–7 (D. Neb. Jan. 2, 2019) (“Master limited partnerships take on the
citizenships of their unitholders.”); Pathfinder Transport, LLC v. Pinnacle Propane, LLC, 259 F.
Supp. 3d 949, 950–54 (W.D. Ark. 2017) (same). And here, plaintiffs have failed to counter the

5

While the court reaches this conclusion based solely upon what has been alleged in the complaint and the
attempted amendment, what transpired during the Samson defendants’ bankruptcy action reinforces the conclusion that
plaintiffs’ conclusory allegations of some massive scheme to defraud (including “accounting chicanery,”“kickbacks”
and, allegations that what motivated the operators to cheat plaintiffs included KKR having loaded them up with debt)
are nothing more than gross speculation—at best. As already observed, the bankruptcy court concluded: (1) that the
“net back” method of valuing the gas at the wellhead, which is the primary focus of plaintiffs claims of illegality, was
lawful; (2) the specific basis for the alleged kickbacks (which was not pled in the complaint in this action) was simply
Ness misreading the gas purchase agreement between Samson Resources and a ONEOK-related entity; and (3) that the
Ness claim should be disallowed after he failed to demonstrate the impropriety of any of the complained about
deductions or the sale of gas at below market prices, much less any fraud.

22

evidence offered by the ONEOK defendants that one or more of the unit owners of ONEOK Partners
(which was a publicly-traded master limited partnership at the time of the commencement of this
action) was an Arizona resident. Hence, at least as of the time of the filing of the complaint,
complete diversity was lacking with the presence in the action of ONEOK Partners.
The general rule is that “[t]he existence of federal jurisdiction ordinarily depends on the facts
as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
830 (1989). However, there are exceptions. One is that, pursuant to Fed. R. Civ. P. 21, a court can
dismiss a non-indispensable party whose presence destroys diversity jurisdiction. See id. at 832–38.
In this case, the court concludes that, if the only reason for dismissing the entirety of this
action is for reasons of lack of subject matter jurisdiction based upon the lack of federal question
jurisdiction for the reasons explained and ONEOK Partners destroying diversity jurisdiction, the
court would afford plaintiffs the opportunity to file a motion seeking to dismiss ONEOK Partners.6
But, even with the dismissal of ONEOK Partners, diversity jurisdiction would not necessarily then
exist. The court would also have to determine the citizenship of the members and limited partners
of the remaining limited liability company and limited partnership defendants.7 Also, the court

6

The ONEOK defendants have advised that, as of June 30, 2017, ONEOK had acquired all of the outstanding
common master partnership units of ONEOK Partners. However, there is substantial doubt that this cures the
jurisdictional defect that existed at the time of the filing of the action even though, if this case was to proceed forward,
plaintiffs likely could turn around and re-sue ONEOK Partners if it was dismissed solely to cure a jurisdictional defect
based on lack of complete diversity at the time this action was filed. See, e.g., Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567 (2004) (post-filing change of composition of a limited partnership did not cure the jurisdictional
defect of lack of complete diversity at the commencement of the action).
7

Several of the defendants have argued that plaintiffs have failed to prove the existence of diversity of
citizenship based upon the lack of information setting forth the citizenship of KKR, a limited partnership, and Bakken
Hunter, a limited liability company. If this case was not dismissed for other reasons, the court would afford plaintiffs
some opportunity for discovery or order (as the court has done in some cases) that the defendants supply the information
required by the court to determine its jurisdiction. Also, the court assumes at this point that, in suing KKR, plaintiffs
have not sued KKR & Co. L.P. If the court is wrong in making this assumption, then the question of complete diversity
is likely even more problematic given that it is a publicly-traded master limited partnership and the likelihood of it having
had one or more unit members who were citizens of Arizona at the time this action was commenced.

23

would have to address the more difficult question of whether the amount-in-controversy for purposes
of diversity jurisdiction under § 1332 would exceed the $75,000 threshold.8
C.

The motions to dismiss
1.

KKR, the ONEOK defendants, and Magnum Hunter/Bakken Hunter

The court has already addressed plaintiffs’ failure to plead plausible claims of violation of
federal law against any of the defendants. The court has also addressed the fact that the only state
law claim that plaintiffs may have attempted to assert is one of fraud and here the complaint (even
with the purported amendment) fails to (1) state a claim of fraud as to the KKR, the ONEOK
defendants, and Magnum Hunter or Bakken Hunter that crosses the threshold of being plausible
within the meaning of Iqbal and Twombly, and (2) satisfy Fed. R. Civ. P. 9(b)’s requirements of
pleading with particularly given the absence of allegations with respect to time, place, and manner.
For these reasons, the complaint (including the attempted amendment) is subject to dismissal as to
these defendants for these reasons alone.9
2.

The Samson defendants

As already discussed, Ness filed a proof of claim in the Samson defendants’ bankruptcy
proceedings stating he was owed between $75,000 and $1,000,000— the same amount he contends
is the amount-in-controversy in this case—and the bankruptcy court denied the claim following an

8

Several defendants also argue that plaintiffs have failed to plead sufficient information demonstrating that
the amount in controversy exceeds the monetary threshold in question and that the conclusory allegations of the plaintiffs
are not enough. Given the court’s other rulings, the court need not reach that question, but it may be a close one. See,
e.g., Lipsey v. SEECO, Inc., No. 4:16-cv-000149, 2017 WL 2662677, at **4–5 (E.D. Ark. June 20, 2017) (plaintiffs
failed to demonstrate that the $75,000 jurisdictional threshold could be reached in an action against the defendant for
failure to pay the full amount of royalty due, even with an award of penalty interest, attorney’s fees, and punitive
damages, given that the underpayment was small).
9

Even if plaintiffs had stated enough to plead a claim of fraud with respect to the Samson defendants, they
have not with respect to Magnum Hunter and Bakken Hunter, who are hardly mentioned in the complaint and not at all
in the purported amendment.

24

evidentiary hearing. “[The Supreme Court has long recognized that the process of claims allowance
[in a bankruptcy proceeding] includes the dual determinations of both validity and the amount of the
claim.” In re Hann, 476 B.R. 344, 355(1st Cir. BAP 2012) aff’d In re Hann, 711 F.3d 235 (1st Cir.
2013). As far as this case is concerned, the bankruptcy court’s disallowance of Ness’s claim is a
final order that bars him from re-litigating the issues that were raised or could have been raised in
the claim-objection proceeding and is separate from any discharge of his claims that occurred as a
consequence of defendants’ plan of reorganization having been approved. Id. at 358–59; see also
EDP Medical Computer Systems, Inc. v. United States, 480 F.3d 621, 624–27 (2d Cir. 2007).
With these principles in mind and after careful review of the record of the claims-objection
proceeding, this court concludes that plaintiffs are precluded from litigating in this action (to the
extent they may be attempting to do so in the less-than-clear complaint): (1) any claim of violation
of federal law or fraud on the part of the Samson defendants relating to what Ness was paid or not
paid on his interests in the production of gas from the wells that were at issue in the claim-objection
proceeding and arose prior to the commencement of the bankruptcy action; (2) any argument that
the use of the “net back” method of valuing the gas in which Ness claims an interest by way of the
Ness lease is contrary to North Dakota law or the terms of the Ness lease; (3) any claim that Samson
Resources could not as a matter of law or the terms of the Ness lease deduct the excess of any
expenses incurred in preparing the produced gas for sale against amounts owed with respect to the
oil that was produced; and (4) any argument that the expenses claimed by Samson Resources and
affecting the amounts payable to Ness prior to the commencement of the bankruptcy proceedings
were improper or that the gas was sold for below market prices.
Separate from the decision disallowing the Ness claim, the bankruptcy court approved a plan

25

of reorganization that included a provision discharging the Samson defendants from all claims and
causes of action of any nature whatsoever that existed prior to the final effective date of the plan
with some exceptions not relevant here. This discharge had the effect of relieving the Samson
defendants from any liability with respect to the claims asserted in the complaint and purported
amendment, including any continuing damages accruing up to the final effective date of the plan.
See, e.g., International Paper Company v. MCI Worldcom Network Services, Inc., 442 F.3d 633 (8th
Cir. 2006) (per curiam) (debtor’s approved plan of reorganization under Chapter 11 discharged
plaintiff’s state law claims of trespass, slander of title, and unjust enrichment); McSherry v. Trans
World Airlines, Inc., 81 F.3d 739, 740 (8th Cir. 1996) (per curiam) (plaintiff’s claim of violation of
the ADA was discharged by the confirmation of debtors’s ch. 11 plan of reorganization); 11 U.S.C.
§ 101(5)(A) (“The term ‘claim’ means--(A) right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured.”); 11 U.S.C. § 101(12) (“The term ‘debt’ means liability on a claim.”); 11
U.S.C. § 1141(d) (with certain exceptions and except as otherwise provided in the plan or order
confirming the plant, the confirmation of a plan “discharges the debtor from any debt that arose
before the date of such confirmation”).10

10

In one of their responses to the renewed motions to dismiss, plaintiffs appear to argue that their claims of
fraud could not be discharged because of the exceptions to discharge under 11 U.S.C. § 523. If so, this is an argument
that had to be made in the bankruptcy proceeding and then a timely appeal taken if disappointed by the bankruptcy
court’s adjudication. Putting that aside, however, the provisions that plaintiffs appear to be relying in § 523 apply only
to Chapter 11 debtors who are individuals. See 111 U.S.C. §§ 523(a) &1141(d)(2).

26

Given the foregoing, the court concludes that the net result of (1) the bankruptcy’s court’s
final order in the claim-objection proceeding, and/or (2) the discharge effectuated by the approved
plan of reorganization is that plaintiffs’ claims in this action must be dismissed as to the Sansom
defendants. However, given the lack of record information to make a more precise determination
(including what was the actual final effective date of the plan), the dismissal will be with prejudice
up to the date of the commencement of the bankruptcy actions on September 15, 2015, and without
prejudice thereafter even though the actual bar resulting from the final order of the claim-objection
proceeding and the discharge may extend beyond that date.
D.

Whether the court should allow plaintiffs an opportunity to further amend the
complaint before dismissing it

Normally, the court would not dismiss the complaint of a pro se plaintiff for pleading
deficiencies without first affording an opportunity to correct them. See Rush v. State Arkansas
DWS, 876 F.3d 1123, 1126 (8th Cir. 2017). But here, plaintiffs have had more than sufficient
opportunity in responding to the initial and supplemental motions to move to amend their
pleadings—or least offer something which suggests that they have a plausible claim if the court was
to afford them a further opportunity to amend—and they have not done so. Cf. Hubbard v. St Louis
Psychiatric Rehabilitation Center, 556 Fed.Appx. 547, 548 (8th Cir. 2014) (unpublished per curiam).
Further, the inability of Ness to prove to the bankruptcy court that there was anything nefarious
about the manner in which the gas was being sold and the mineral interest owners being
compensated by Samson Resources—including the use of the “net back” method of valuation and
offsetting of the excess gas expenses against the amounts payable on the oil production that were
the primary focus of Ness’s complaints—makes it improbable here that plaintiffs will be able to
amend the pleadings to state a plausible claim for violations of federal law or some overarching
27

scheme to defraud that they appear to be attempting to make. And, if plaintiffs believe they have
some other cause of action that has not been pled, then they need to commence a new action, which
may have to be in state court unless they can satisfy the requirements for diversity of citizenship.11
III.

ORDER
The motion at Doc. No. 114 for leave to file documents is GRANTED IN PART. The

documents at Doc. No. 114 will be deemed filed but shall remain sealed.
The court GRANTS the motions to dismiss at Doc. Nos. 14, 17, 37, 41, 46, 100, 103, and
106, but only as follows:
1.

The complaint and purported amendment are DISMISSED WITHOUT

11

As already observed, there is nothing indicating that plaintiffs have attempted to plead a state law claim other
than possibly for fraud. But, even if plaintiffs had pled a breach of contract claim or possibly conversion, the bankruptcy
court’s conclusions that Samson Resources could use the “net back” method of valuation and offset any excess gas
expenses against the amounts owed for royalty on the oil production would be res judicata and a bar to re-litigations of
these issues, whether correctly decided or not, at least as to the Samson defendants. Also, any other state law causes of
action as to the Samson defendants would be subject to the bankruptcy discharge at least up to the effective date of the
Samson defendants’ reorganization plan.
Nevertheless, after reviewing the Ness Lease as introduced in the bankruptcy action, it does appears the
bankruptcy court correctly decided the “net back” valuation and “excess expense” issues given the North Dakota
Supreme Court decisions in Bice, supra, and, more recently, Kittleson v. Grynberg Petroleum Co., 876 N.W.2d 443
(N.D. 2016). And, if the Ness interest in the production from the one well operated by Bakken Hunter/Magnum Hunter
is also derived from Ness Lease, then the same likely applies for the gas production from that well.
Ness contended in the bankruptcy action that it would be unfair to apply Bice to the Ness Lease since it was
decided in 2009, two years after the Ness Lease was consummated in 2007. However, as explained by the bankruptcy
court, the fact that Bice was decided two years later does not make a difference legally. This court has previously
remarked that mineral owners are well-advised to obtain the assistance of legal counsel when negotiating agreements
like an oil and gas lease. E.g., Martin v. Turner Oil & Gas Properties, Inc., No. 1:11-cv-102, 2013 WL 1183786, at *6
n.8 (D.N.D. Mar. 21, 2013). This case is another good example. Although the North Dakota Supreme Court did not
decide Bice until 2009, courts in several other states had concluded prior to 2007 that the use of the “net back” method
of valuation of the gas at the wellhead was permissible. In fact, the Eighth Circuit concluded in 1995 in Hurinenko that
it was a permissible method of valuation under North Dakota law. An experienced oil and gas attorney would have been
aware of these decisions and the possibility that the North Dakota Supreme Court would follow them. Armed with that
knowledge, an attorney assisting the Ness family may have been able to negotiate (depending, perhaps, upon how badly
the mineral developer wanted the lease) alternative language of the type that the North Dakota Supreme Court concluded
in Kittleson did not allow for the deduction of post-production expenses from the royalty owner’s share of the gas
production or language providing audit rights and penalty interest and attorney fees in the event of underpayment beyond
what North Dakota law provides for.
Finally, the court is not unsympathetic to the difficulty of mineral owners being able to verify the validity of
expenses being deducted from their share of the production and the opaqueness of some of the information they appear
to have been provided. This court has not kept up with the latest legislative and regulatory developments in this area,
but the state legislature and the North Dakota Industrial Commission may be better forums for plaintiffs obtaining relief.

28

PREJUDICE for failure to state a cognizable claim as to: (a) ONEOK Partners,
ONEOK, and OKS; (b) “KKR (Kravis, Kohlberg, Roberts)” or any other KKRrelated defendant plaintiffs may have intended to sue in the complaint by use of that
name; and (c) Magnum Hunter and Bakken Hunter.12
2.

The complaint and purported amendment are DISMISSED as to defendants Samson
Resources and Samson Investments. The DISMISSAL is WITH PREJUDICE
with respect to any claim of violation of federal law or fraud that plaintiffs have
attempted to plead in the complaint and the purported amendment and that accrued
prior to the filing of the Samson defendant petitions in bankruptcy on September 16,
2015. Otherwise, it is WITHOUT PREJUDICE.

The other motions at Doc. Nos. 49, 58, 67, 70 and 71 are DISMISSED FOR MOOTNESS.
IT IS SO ORDERED.
Dated this 15th day of February 2019.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

12

This dismissal takes care of any lack of complete diversity, including that caused by the presence of
ONEOK Partners (i.e., ONEOK Partners, L.P.) as of the time of the filing of the complaint.

29