United States District Court, D. North Dakota
Edward "Sully" Danks Sr, and Georgianna Danks, as land owners Benefit Pension Plan, Plaintiffs,
Slawson Exploration Company, Inc., and White Butte Oil Operations, LLC, Defendants.
ORDER DENYING THE MOTION TO DISMISS AND ALLOWING
PLAINTIFFS TO FILE AN AMENDED COMPLAINT
CHARLES S. MILLER, JR., MAGISTRATE JUDGE UNITED STATES
the court is defendant's motion to dismiss. Plaintiffs
oppose the motion.
Civ. P. 12(b)(6) requires dismissal of an action if there has
been a failure to state a claim upon which relief can be
granted. To state a cognizable claim, the complaint need only
meet the requirement of Rule 8(a)(2) that it contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007). The exceptions (which
are not applicable in this case) are set forth in
the pleading requirements of Rule 8(a)(2) are not onerous,
more is required than simply expressing a desire for relief
and declaring an entitlement to it. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 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 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 (“Iqbal”).
the Iqbal/Twombly plausibility standard,
the complaint must state enough factual matter, which if
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.
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
“a complaint should not be dismissed merely because a
plaintiff's allegations do not support the particular
legal theory he advances, for the court is under a duty to
examine the complaint to determine if the allegations provide
for relief on any possible theory.” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848-49 (8th
Cir. 2014) (internal quotations and citing authority
allege in their complaint that they are the surface owners of
land located on the Fort Berthold Indian Reservation, that
defendants operate oil wells on their property, that an oil
spill occurred, and that defendants have failed to pay
plaintiffs for damage caused by the spill. These allegations,
while bare bones, are sufficient to state a claim for damages
arising under tort or possibly also nuisance.
muddies the water, however, is an additional paragraph in the
complaint that recites a portion of what defendants contend
in their motion to dismiss (and what plaintiffs appear to
agree in their response) is a paragraph from a 2010 Surface
Damage, Access and Easement Agreement (“2010
Agreement”). While acknowledging that the complaint is
not a model of clarity, defendants contend that the inclusion
of this paragraph suggests that the claim plaintiffs are
intending to bring is for a breach of the 2010 Agreement.
Defendants go on to contend that the 2010 Agreement was
replaced by a Surface Use and Damage Agreement dated October
2, 2012 (“2012 Agreement”). Defendants have
submitted both agreements and argue the court can consider
them upon a motion to dismiss since the complaint makes
reference to the 2010 Agreement and that the 2012 Agreement
is a public record. Defendants argues that, since the 2010
Agreement was not operative when the alleged spill took place
given its replacement by the 2012 Agreement, the complaint
fails to state a claim upon which relief can be granted.
the complaint never explicitly alleges the 2010 Agreement was
breached, it does appear from the reference to it that
plaintiffs are attempting to assert a claim arising under
that Agreement. Further, in their response to defendants'
motion, plaintiffs argue the 2012 Agreement merely
supplemented the 2010 Agreement and did not replace it. Also,
prior to filing their complaint in this action, plaintiffs
attempted to assert a claim pursuant to the 2010 Agreement in
tribal court, which was dismissed based upon the tribal
court's conclusion that a forum selection clause of the
2012 Agreement applied and did not permit suit in that court.
review the 2012 Agreement and its exhibits,  the court agrees
that plaintiffs' released the 2010 Agreement and that it
cannot be the subject of a claim for breach of contract.
However, this does end the matter. While plaintiffs'
response to defendants' motion to dismiss, like the
complaint, is not a model of clarity, plaintiffs appear to be
contending that what they have pled supports a claim under
N.D.C.C. § 38-11.1-04, which is part of North
Dakota's Oil and Gas Production Damage Compensation Act.
However, the complaint makes no reference to this law.
noted earlier, the court's task at this point is
determine whether the allegations of the complaint support a
claim under any possible theory and the court does believe
plaintiffs have stated at least a common law claim for
damages to their property arising under tort as well as
possibly nuisance. Whether plaintiffs have also alleged facts