Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH November 14, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
C&M RESOURCES, LLC; WINTER OIL, LLC, individually and on behalf of all others similarly situated,
Plaintiffs - Appellants,
v. No. 24-1311
EXTRACTION OIL AND GAS, INC., f/k/a Extraction Oil & Gas, LLC,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:24-CV-00037-NYW-MEH) _________________________________
Stacy Ann Burrows (George Barton, with her on the briefs) of Barton and Burrows, Mission, Kansas, for Plaintiffs-Appellants.
Eric D. Walther of Brownstein Hyatt Farber Schreck, Las Vegas, Nevada (Justin L. Cohen, Matthew C. Arentsen, and Craig M. Finger, Denver, Colorado, with him on the brief), for Defendant-Appellee. _________________________________
Before CARSON, EBEL, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________ Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 2
This appeal arises from Plaintiffs-Appellants C&M Resources, LLC, and
Winter Oil, LLC’s (Royalty Owners) contention on behalf of a putative class
that Defendant-Appellee Extraction Oil and Gas, Inc. underpaid royalties
owed based on oil and natural gas production agreements. But the issue of
liability is not before us because the case didn’t get to trial. Rather, the district
court granted judgment on the pleadings and dismissed the putative class
action complaint without prejudice. Before dismissing, the district court also
denied Royalty Owners’ motion to remand the complaint back to state court,
where it was initially filed.
On appeal, Royalty Owners contest both decisions. Regarding the
remand denial, they argue that Extraction untimely removed the case from
state to federal court. Regarding dismissal, they argue that they are not
collaterally estopped by prior state court rulings that held they are required to
exhaust their claims before a state commission before filing suit. We are not
persuaded by Royalty Owners’ arguments. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I
This dispute is anything but new. Indeed, this case represents the third
putative class-action complaint Royalty Owners have filed in Colorado state
court alleging the same harm arising from the same set of facts. The first two
complaints were dismissed for failure to exhaust administrative remedies.
2 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 3
That is, the state trial courts determined that they lacked subject matter
jurisdiction because Royalty Owners filed their complaints without first
seeking an administrative resolution before the Colorado Oil and Gas
Conservation Commission (the Commission), as required by statute. 1 On
neither dismissal did Royalty Owners appeal the court’s decision.
Royalty Owners filed the present iteration of the case in 2019. The
parties then jointly moved for a stay of the proceeding pending resolution of a
separate case by the Colorado Supreme Court: Antero Resources Corp. v.
Airport Land Partners, Ltd, 526 P.3d 204 (Colo. 2023), which the parties
anticipated would shed light on the administrative exhaustion requirement.
The state trial court entered the stay in March 2020. Approximately three
months later, Extraction notified the state court that it had filed for
bankruptcy under 11 U.S.C. § 101, et seq., in Delaware bankruptcy court. Then,
in August of the same year, Royalty Owners filed on the Delaware bankruptcy
docket a proof of claim detailing the existence of the state court litigation. In
that filing, Royalty Owners valued the state-court litigation at $30 million.
1 The Colorado legislature has granted the Commission – which has recently been renamed as the Colorado Energy & Carbon Management Commission – jurisdiction to resolve certain factual disputes pertaining to oil and gas payments. See Colo. Rev. Stat. § 34-60-101, et. seq. But the statute expressly exempts questions of contractual interpretation from the Commission’s purview. Id. § 34-60-118.5(5.5). The parties dispute whether that exemption is applicable here. 3 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 4
Two and a half years passed. Then, the Colorado Supreme Court decided
Airport Land. In May 2023, the state trial court lifted its stay in this matter.
In December 2023, discovery production began. From discovery, Extraction
determined that the amount in controversy was greater than $5 million, a
statutory requirement for removal to federal court of this type of suit. As
discussed below, Extraction then removed the case to federal court. After
removal, Extraction filed an answer to the operative complaint. The answer
included the affirmative defense that Royalty Owners’ claims were barred by
res judicata or issue preclusion.
II
On January 5, 2024, Extraction removed the operative third-amended
complaint to federal court based on diversity jurisdiction. Because the
complaint was brought on behalf of a putative class, Extraction removed
pursuant to the Class Action Fairness Act of 2005 (CAFA). See 28 U.S.C.
§ 1332(d). CAFA required Extraction to show, inter alia, the existence of a
minimum amount in controversy to be in excess of $5 million. See id.
§ 1332(d)(2).
The notice of removal stated that “[n]one of the complaints in this lawsuit
have identified an amount in controversy or made a demand for a specific
amount of money.” Aplt. App. I at 48. While maintaining a denial of liability,
Extraction estimated based on a “review and analysis of records” provided in
4 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 5
discovery that the amount in controversy was greater than the statutorily
required $5 million. Id. at 49. Extraction also stated that it “first discovered”
the evidence supporting this estimate “within the last 30 days, while preparing
to respond to Royalty Owners’ First Set of Discovery Requests.” Id.
Royalty Owners moved for a remand back to state court. In support, they
presented two arguments: first, that Extraction had waived its right to removal
by engaging in substantive state-court litigation; and second, that the notice of
removal was filed outside of the 30-day timeline set by statute. See 28 U.S.C.
§ 1446(b). Extraction responded in opposition and, contemporaneously, filed a
motion for judgment on the pleadings.
The district court began its analysis by determining that it should decide
the removal issue first, followed by the merits issue. When considering the
remand motion, the district court disregarded the bankruptcy proof of claim
that Royalty Owners argued had put Extraction on notice of the amount in
controversy when filed in August of 2020. It did so because the proof of claim
was not referenced in Royalty Owners’ motion for remand but was raised for
the first time in its reply. The district court found that it had discretion to
disregard this later-arriving argument and evidence and decided to exercise
that discretion to not consider the proof the claim. The district court then found
that Extraction’s analysis of the records produced in discovery in December
2023 began the 30-day removal clock. The district court held that Extraction
5 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 6
had met its burden to justify removal, so it denied Royalty Owners’ remand
motion.
The district court then turned to the motion for judgment on the
pleadings and held that collateral estoppel applied. The district court reasoned
that because the state court had twice held that Royalty Owners had failed to
exhaust their administrative remedies – and because Royalty Owners had
neither done so nor appealed the prior determinations – Colorado’s
jurisdiction-stripping statute applied. The district court granted Extraction’s
Extraction had also requested a litigation sanction in the form of
dismissal with prejudice, which the district court declined to grant. It noted
that dismissal for lack of subject matter jurisdiction is typically without
prejudice. But it also acknowledged Extraction’s argument “that Plaintiffs
disregarded clear court orders by refiling their case twice without correcting
the identified defect, which does reflect a level of disregard for the state courts
and their rulings.” Aplt. App. V at 185. The district court concluded that there
was not clear and convincing evidence warranting dismissal with prejudice.
However, the district court added, in bold and underlined font:
Plaintiffs are advised that if they choose to file a fourth iteration of this case without exhausting their administrative remedies before the Commission, and the case reaches federal court, there exists the possibility that the presiding judge may dismiss their case with prejudice as a sanction for litigation misconduct.
6 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 7
Id. at 186. Royalty Owners timely appeal.
III
Before we consider the merits of the appeal, we must be satisfied with
our power to decide the case. Congress has granted us jurisdiction to hear
“appeals from all final decisions of the district courts.” 28 U.S.C. § 1291.
Because this requirement goes to the court’s power, we consider it sua sponte.
The relevant question is whether the district court’s order dismissing the case
was a “final decision.” If not, we lack the ability to decide the merits of the
appeal. Moya v. Schollenbarger, 465 F.3d 444, 448 (10th Cir. 2006). But where
“the district court’s grounds for dismissal are such that the defect cannot be
cured through an amendment to the complaint,” dismissal is final. Id. at 450–
51. For this reason, we recognize that “dismissal without prejudice for failure
to exhaust administrative remedies is a final decision appealable under
[§ 1291].” Jacobs v. Salt Lake City Sch. Dist., 154 F.4th 790, 798 n.4 (10th Cir.
2025). Satisfied that we have appellate jurisdiction, we proceed to the parties’
arguments.
IV
The arguments on appeal challenge both the district court’s denial of
remand and its dismissal of the case. Like the district court, we consider these
issues in serial, as the “better practice” is to begin with the motion to remand.
In re Bear River Drainage Dist., 267 F.2d 849, 851 (10th Cir. 1959). Because
7 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 8
cases are removed to federal court by notice rather than motion, motions for
remand contest the satisfaction of jurisdictional and procedural hurdles to
removal. Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996). We therefore look to
the relevant jurisdictional and procedural standards to guide us to a decision.
A
In exercising jurisdiction, the district court relied on diversity of the
parties and CAFA. Diversity jurisdiction is available under CAFA in putative
class actions if the class contains at least 100 members, there is minimal
diversity between the parties, and at least $5 million is at stake. 28 U.S.C. §
1332(d).
Additionally, the removing party must satisfy a procedural standard set
out by statute. See 28 U.S.C. § 1446. The statute ordinarily requires the
removing defendant to file its notice of removal in federal court within 30 days
of receipt of the complaint or summons. Id. § 1446(b)(1). But if the complaint
does not on its face provide a basis for removal, “a notice of removal may be
filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.” Id. § 1446(b)(3).
It is not enough that a complaint contains “allegations from which the
defendant might well have surmised that damages exceeded the jurisdictional
8 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 9
floor.” Paros Props. LLC v. Colorado Cas. Ins. Co., 835 F.3d 1264, 1269
(10th Cir. 2016). The 30-day clock only begins to run once the “plaintiff
provides the defendant with ‘clear and unequivocal notice’ that the suit is
removable.” Id. at 1270 (quoting Akin v. Ashland Chemical Co., 156 F.3d 1030,
1036 (10th Cir. 1998)). Here, Extraction removed under section 1446’s “other
paper” language because, it argues, it was not on notice of the amount in
controversy until after discovery commenced. To resolve this appeal, we will
need to determine the meaning of the “other paper” language and – in so doing
– decide when the 30-day clock began to run.
B
The existence of removal jurisdiction is a legal question. We thus review
the denial of a motion to remand de novo. Garley v. Sandia Corp., 236 F.3d
1200, 1207 (10th Cir. 2001). Subsidiary legal questions, such as the
interpretation of a federal statute, are also reviewed de novo. Scanlon White,
Inc. v. Comm’r, 472 F.3d 1173, 1175 (10th Cir. 2006).
However, we review for abuse of discretion the district court’s decision to
disregard the bankruptcy proof of claim because it was raised for the first time
in a reply. See In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1119 (10th Cir.
2015). A district court has acted within its discretion so long as it has not made
“an arbitrary, capricious, whimsical, or manifestly unreasonable judgement.”
F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994) (quoting United
9 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 10
States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991)). And we may
reverse only if we have a “definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances.” Nalder v. W. Park Hosp., 254 F.3d 1168, 1174 (10th Cir.
2001) (quoting McEwen v. City of Norman, 926 F.2d 1539, 1553–54
(10th Cir.1991)). When an argument is raised for the first time in reply, a
district court may either grant leave to file a surreply or may disregard the
newly raised materials and arguments. See Conroy v. Vilsack, 707 F.3d 1163,
1180 n.6 (10th Cir. 2013) (citing Pippin v. Burlington Res. Oil & Gas Co.,
440 F.3d 1186, 1191–92 (10th Cir. 2006); Doebele v. Sprint/United Mgmt. Co.,
342 F.3d 1117, 1139 n.13 (10th Cir. 2003); and Beaird v. Seagate Tech., Inc.,
145 F.3d 1159, 1164–65 (10th Cir. 1998)).
Here, the district court chose the latter path. In making its
determination, the district court noted that considering the proof of claim filed
in Delaware bankruptcy court would not have changed its ruling, “as Plaintiffs
cite no authority to suggest that a paper from a different case can satisfy the
requirements of 28 U.S.C. § 1446 in this case.” Aplt. App. V at 165 n.5. On
appeal, Royalty Owners argue that this was an abuse of discretion because the
evidence bore on a non-waivable jurisdictional question.
We do not find the district court’s decision to be an abuse of discretion.
“This circuit has been very strict in assessing whether the grounds for removal
10 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 11
are ascertainable.” Paros Props., 835 F.3d at 1269. In City of Albuquerque v.
Soto Enterprises, Inc., this court explained that the existence of subject-matter
jurisdiction grants a tribunal the authority to determine a dispute. 864 F.3d
1089, 1092–93 (10th Cir. 2017). Because subject-matter jurisdiction defines the
scope of a court’s power, the question of its existence may never be waived. Id.
at 1092. Where a party seeks to remove a case to federal court, it must first
establish the existence of subject-matter jurisdiction – here, diversity under 28
U.S.C. § 1332.
Additionally, the party must satisfy “statutory procedural requirements,
e.g., timeliness in removal.” Soto Enters., Inc., 864 F.3d at 1094. “Untimeliness
is a ‘statutory flaw,’ not a ‘jurisdictional defect.’” Paros Props., 835 F.3d at 1273
(quoting Caterpillar, 519 U.S. at 73). Because compliance with statutory
procedural requirements is “independent from subject-matter jurisdiction,”
arguments predicated on non-compliance are waivable. Soto Enters., Inc.,
864 F.3d at 1094. As a result, “when a court finds that it lacks removal
jurisdiction, that finding hardly means it lacks subject-matter jurisdiction – it
may or may not.” Id.
Here, Royalty Owners presented the proof of claim made to the Delaware
bankruptcy court as evidence that removal of the case was not timely. See
28 U.S.C. § 1446(b)(3). But the timeliness of a litigant’s notice of removal is not
a jurisdictional question. Instead, the challenge goes to compliance with
11 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 12
statutory procedural requirements. Such arguments are waivable. The district
court did not abuse its discretion in finding Royalty Owners had waived the
argument concerning the proof of claim by not raising or arguing it when it
filed the remand motion and instead waiting until the reply.
The district court also correctly construed the removal statute. Royalty
Owners argue that the term “other paper,” see 28 U.S.C. § 1446(b)(3), should
be understood to capture papers filed in other courts and litigations. Here, that
could mean that the bankruptcy proof of claim began the 30-day clock for
removal, so Extraction’s notice of removal was untimely filed.
In support of their point, Royalty Owners argue that the statutory
language is meant to “encompass any document, regardless of its formal origin
or means of receipt.” Reply Br. at 14. But the statute does not use the term
“any document.” It says:
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b)(3).
A few points are worth noting. The statute becomes operative only on the
satisfaction of a dependent clause: “if the case stated by the initial pleading is
not removable.” The statute then provides that a notice of removal “may be
filed within 30 days after receipt” of certain papers triggering removability. A
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defendant may remove based on a list of certain documents: “an amended
pleading, motion, order or other paper.”
Our analysis begins with the enumerated list, which makes no reference
to “the initial pleading.” To construe the term “other paper,” we apply the
doctrine of noscitur a sociis, which means “a word is known by the company it
keeps.” See Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). We look to the
shared characteristics of “an amended pleading, motion,” and “order,” and
impute them to “other paper.” See M. S. v. Premera Blue Cross, 118 F.4th 1248,
1270–71 (10th Cir. 2024) (collecting cases that apply the noscitur a sociis and
related ejusdem generis canons). The common characteristics of this list
include that they are all documents that may be filed in a trial court as part of
ongoing litigation. They also are all typically filed after the “initial pleading”
referenced in the statutory subsection. The “other paper” must also have been
filed in a trial court proceeding following the initial pleading that started the
litigation. See Paros Props., 835 F.3d at 1272 (“We agree with other circuits to
have considered the matter that a presuit communication is not an ‘other
paper.’”).
The list only takes effect when the dependent clause is triggered: “if the
case stated by the initial pleading is not removable.” The use of the definite
article “the” indicates that the statute does not apply to any initial pleading
filed anywhere in any court. There is a particular initial pleading contemplated
13 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 14
– the one setting out “the case” in which removability is at issue. Because this
triggering, dependent clause defines the scope of the statute, we read the list
that follows as applying to papers filed in “the case” at issue.
Such commonsense reasoning is reinforced by the fact that the
enumerated list does not itself refer to any “initial pleading.” The omission is
presumptively intentional and purposeful. United States v. Gonzales, 520 U.S.
1, 5 (1997). If the list were meant to apply to any litigation anywhere, it would
make sense for the list to begin with the filing that began the case, the “initial
pleading.” Here, there is no need, because the list only becomes relevant when
“the initial pleading” – that is, the complaint giving rise to the removable case
– does not itself indicate removability.
We conclude that Congress wrote the statute to cabin the list’s meaning
within the context and scope of the dependent clause. We hold that the papers
in question – including the “other paper” of interest to Royalty Owners – must
have arisen from the removed case itself. Thus, a federal bankruptcy filing in
Delaware will not trigger removability from a Colorado state court case even
when the parties involved are the same in both. Whatever the factual overlap
between the two parties, the link is simply too attenuated to fall within the
removal statute’s requirements.
Our observation accords with the weight of authority, which provides
that “documents not generated within the state litigation generally are not
14 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 15
recognized as ‘other papers,’ that can start a 30-day removal period.” 14C Mary
Kay Kane & A. Benjamin Spencer, Wright & Miller’s Federal Practice &
Procedure § 3731 (Rev. 4th ed.). Although the line drawn by our sister circuits
is not perfectly clean, the prevailing rule is that the paper be “‘involved in,’ not
external to, ‘the case being removed.’” Berera v. Mesa Med. Grp., PLLC,
779 F.3d 352, 365 (6th Cir. 2015) (quoting Dahl v. R.J. Reynolds Tobacco Co.,
478 F.3d 965, 969 (8th Cir. 2007)). We conclude that this general rule is correct.
It also aligns with our cases that say we are “very strict in assessing whether
the grounds for removal are ascertainable.” Paros Props., 835 F.3d at 1269.
The Delaware bankruptcy proof of claim is not an “other paper” under the
removal statute, so it did not begin the clock for removal.
Royalty Owners argue in the alternative that they gave notice of the
amount in controversy during a 2017 case management conference held in
connection with the first-filed case in state court (which was dismissed for lack
of exhaustion). This argument fails for several reasons. As a threshold matter,
it was not properly raised before the district court and is thus forfeited. Royalty
Owners did not argue plain error in their opening brief, so we find the
argument to also be waived on appeal. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130–31 (10th Cir. 2011).
Even if we were to consider this argument, we would find that the case
management conference was held in a separate case and the transcript from
15 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 16
that conference is not an “other paper” for the purposes of this case. Again, our
caselaw makes clear that “a presuit communication is not an ‘other paper.’”
Paros Props., 835 F.3d at 1272. The transcript predates this case by several
years. The case management conference transcript is not an “other paper” for
the purpose of this case.
Royalty Owners also argue that Extraction waived its right to removal
by participating in the state court litigation before filing the notice of removal
in federal court. Our general rule is that a party waives its right to remove
when it has “adequate notice of the right to remove,” Akin, 156 F.3d at 1036,
and nonetheless “manifests a ‘clear and unequivocal’ intent to submit the case
to the state court’s jurisdiction,” Soto Enters., Inc., 864 F.3d at 1099. As the
foregoing discussion makes clear, Extraction did not have adequate notice of
its right to remove until December 2023 at the earliest. Its prior participation
in the state court litigation is of no moment. The district court did not err in
denying remand.
V
Having determined that the case was properly removed to and retained
in the district court, we now turn to the grant of judgment on the pleadings.
The district court ruled based on issue preclusion. On appeal, Royalty Owners
contend that the district court should have found issue preclusion inapplicable
because, they argue, Extraction waived the issue preclusion argument by
16 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 17
failing to raise it before the state court prior to removal. They also argue that
the district court’s application of the issue preclusion doctrine suffers from
three substantive infirmities. We address these contentions in turn.
Royalty Owners argue that Extraction in the district court waived its
argument that issue preclusion applied. The operative complaint relevant for
the order on appeal – and the only complaint filed before the federal district
court – is the Third Amended Class Action Complaint and Jury Demand. See
Aplt. App. I at 13. Extraction answered this pleading in federal court on
January 12, 2024. The federal court answer asserted as an affirmative defense
that “[p]laintiffs’ claims are barred by the doctrine of res judicata, or issue
preclusion, because the claims at issue in this action have previously been
dismissed and Plaintiffs did not appeal those dismissals.” Id. at 74. But,
Royalty Owners argue, Extraction waived the defense by failing to raise it in
the state court answer to the second amended complaint. 2
Royalty Owners provide no authority for the proposition that Extraction
is bound forever by the affirmative defenses set out in its initial answer filed
2 The answer to the second amended complaint in state court did plead
that “Plaintiffs’ claims are barred, in whole or in part, due to estoppel.” Aplt. App. III at 274. Because we find waiver not applicable in any event, we see no need to determine whether the answer to the second amended complaint raised the defense of issue preclusion, also known as collateral estoppel. 17 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 18
in state court. We doubt this authority exists. So long as a defendant effectively
amends its responsive pleading, whether by right or by leave of court, see Fed.
R. Civ. P. 15, the amended answer may appropriately add affirmative defenses,
including issue preclusion. Indeed, many district courts allow for filing of an
amended answer without leave of court any time an amended complaint has
been filed. See Hydro Eng’g, Inc. v. Petter Invs., Inc., No. 2:11-CV-00139-RJS,
2013 WL 1194732, at *2 (D. Utah Mar. 22, 2013) (collecting cases applying the
“permissive approach”). Because Royalty Owners do not contend the answer
was improperly amended, the defense of issue preclusion was not waived.
Additionally, as the district court accurately noted, “[i]t is well
established that a court may raise the issue of preclusion on its own motion, in
appropriate cases.” Burrell v. Armijo, 456 F.3d 1159, 1176 (10th Cir. 2006)
(McConnell, J., concurring in the judgment) (collecting authority); accord Kirby
v. OCWEN Loan Servicing, LLC, 641 F. App’x 808, 811 n.2 (10th Cir. 2016)
(affirming sua sponte dismissal of complaint based on issue preclusion); Banks
v. Opat, 814 F. App’x 325, 332 (10th Cir. 2020) (applying issue preclusion sua
sponte). 3 Application of the doctrine in appropriate circumstances is “fully
consistent with the policies underlying res judicata,” which protect both
defendants and the judiciary from wasteful serial litigation. Arizona v.
3 We cite unpublished decisions for their persuasive value only and do
not treat them as binding precedent. 10th Cir. R. 32.1(A). 18 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 19
California, 530 U.S. 392, 412 (2000). Even if waiver had occurred here, the
district court would have been well within its discretion to consider issue
preclusion on its own motion. The district court was correct to consider issue
preclusion, so we proceed to the merits of this argument.
We review the grant of a motion for judgment on the pleadings de novo,
applying the standard of law that governed in the district court. Soc’y of
Separationists v. Pleasant Grove City, 416 F.3d 1239, 1241 (10th Cir. 2005).
The standard is the same as the familiar Federal Rule of Civil Procedure
12(b)(6) standard, which provides that the complaint’s well-pleaded allegations
are accepted as true and construed in the light most favorable to the plaintiff.
Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160
(10th Cir. 2000). The case may only be dismissed where it is “beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259
(10th Cir. 2004) (citing Ramirez v. Department of Corrections, 222 F.3d 1238,
1240 (10th Cir. 2000)).
Here, the district court held that collateral estoppel precluded Royalty
Owners from relitigating whether they must exhaust their administrative
remedies before suing. Because Royalty Owners had neither exhausted
remedies nor appealed the prior rulings, the district court granted judgment
19 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 20
on the pleadings. On appeal, Royalty Owners argue three points of error. First,
they argue, the district court applied federal law of collateral estoppel rather
than Colorado state law. Second, they argue, the district court found there was
a final determination on the merits where none existed. Third and finally, they
argue that the district court erred by failing to find exhaustion would be futile.
The problems for Royalty Owners are forfeiture and waiver. The first of
their arguments was neither raised nor passed upon in the district court.
Indeed, Royalty Owners treated federal and state authorities as
interchangeable in the collateral estoppel context. The argument is thus
forfeited. And because they did not argue plain error on appeal, we deem the
argument waived. See Richison, 634 F.3d at 1130–31.
Royalty Owners’ second argument is that because “the prior dismissals
of Plaintiffs’ claims were not final judgments on the merits, the district court
erred in dismissing Plaintiffs’ futility argument on collateral estoppel
grounds.” Op. Br. at 50–51. Royalty Owners also failed to raise this argument
in the district court. It is arguable that the district court ruled on this issue
because finality is one of the elements of preclusion. The entirety of the district
court’s analysis was a statement that “[a]lthough [the Colorado state] courts
‘never reached the merits, dismissals for lack of jurisdiction preclude future
relitigation of th[e] jurisdictional question.’” Aplt. App. V at 178 (third
alteration in original) (citation omitted). We would be hard pressed to say that
20 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 21
the district court “explicitly consider[ed] and resolv[ed]” the question sufficient
for Royalty Owners to evade forfeiture. See Tesone v. Empire Mktg. Strategies,
942 F.3d 979, 991 (10th Cir. 2019). But we need not decide this point. The
district court was correct that a court’s finding that it lacks jurisdiction
“preclude[s] future relitigation of that jurisdictional question.” Boulter v. Noble
Energy Inc., 74 F.4th 1285, 1289 (10th Cir. 2023). Whether on the merits or for
reason of waiver, Royalty Owners’ second argument fails.
We move on to the futility argument. In the district court, Royalty
Owners argued Airport Land made clear beyond a reasonable doubt that had
they tried to exhaust, the Commission would have to deny relief as a matter of
law. Thus, by Royalty Owners’ view, the district court should have found
futility applicable and exhaustion unnecessary. Royalty Owners presented the
same argument before this court.
However, the issue of futility was decided by the Colorado state court in
the prior lawsuits. See Aplt. App. II at 21, 61. The district court relied on those
opinions to find Royalty Owners were precluded “from reraising their
exhaustion arguments, including arguments about the futility of exhaustion
and whether the Parties’ dispute turns on contract interpretation.” Aplt.
App. V at 178. That is, the district court held the futility question was also
precluded by prior state court cases. Royalty Owners’ futility argument
therefore relies on their preclusion argument. And, as we note above, the
21 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 22
preclusion argument is a nonstarter. Royalty Owners’ arguments seeking to
overturn the district court’s determinations under Federal Rule of Civil
Procedure 12 all fail. We find no error in the district court’s order rendering a
judgment on the pleadings in favor of Extraction.
VI
Also pending before this court are two motions filed by Royalty Owners.
In their motion to supplement the appendix on appeal, Royalty Owners ask us
to consider certain filings from the first two state court matters. See Doc. 14
at 2–3. In their motion for leave to file a reply, Royalty Owners narrow the
scope of the request to solely the transcript of a case management conference.
Doc. 27-1 at 2 n.1. We deny both motions.
As a general matter, the record should be modified “only to the extent it
is necessary to ‘truly disclose[] what occurred in the district court.’” United
States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (alteration in original)
(quoting Fed. R. App. P. 10(e)). Although we have an inherent equitable power
to supplement the record on appeal beyond the scope of Rule 10(e), it is “rare”
that we would find such an exception applicable. Id. at 1192. Royalty Owners
provide no explanation for their failure to provide the transcript to the district
court. It was not for lack of availability. The transcript was created well in
advance of the district court proceedings and presumably available to Royalty
Owners at the time of district court litigation.
22 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 23
We additionally find noteworthy the procedural history from which this
request arises. Royalty Owners have sought to distance themselves from the
preclusive effects of the state court litigation by serial dismissal and re-filing
of complaints. But now, on appeal, they seek to conflate the current matter
with those same state court proceedings vis-à-vis the conference transcript.
Equity does not favor such an idiosyncratic approach. This is certainly not the
rare case in which equity would require that we consider a document not
passed upon by the district court. Our determination on this point renders
moot the motion to file a reply. Accordingly, we deny both motions.
Finally, we address Royalty Owners’ Rule 28(j) filing. Submission of
supplemental authority under this rule requires an attorney’s implicit
certification that the issues presented are warranted by existing law. 10th Cir.
R. 46.5(B)(2). Royalty Owners’ submission purports to provide notice of two
orders by the Commission declining jurisdiction to hear a dispute between the
parties to this case that were entered in March 2025. See generally Doc. 47.
Extraction correctly points out that the two Commission orders cannot affect a
jurisdictional determination in this matter because “[f]ederal jurisdiction is
determined based on the facts as they existed at the time the complaint was
filed.” Boulter v. Noble Energy Inc., No. 23-1118, 2024 WL 1526289, at *4 n.2
(10th Cir. Apr. 9, 2024) (unpublished) (alteration in original) (quoting
Ravenswood Inv. Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223
23 Appellate Case: 24-1311 Document: 56 Date Filed: 11/14/2025 Page: 24
(10th Cir. 2011)). Extraction is also correct that counsel for Royalty Owners in
this case were counsel in Boulter. Counsel for Royalty Owners were thus aware
that their Rule 28(j) submission could not have affected this court’s
jurisdictional determination. Despite this, Royalty Owners’ Rule 28(j) filing
mentions neither Boulter nor its relevant holding.
Counsel’s failure to acknowledge that the orders they filed as
supplemental authority could not affect this court’s jurisdictional
determination raises a concern about a potential lack of candor. This court
welcomes parties to provide notice of supplemental authority, which is the
purpose of Rule 28(j). However, counsel are reminded that if they provide this
notice, they must give us the whole picture and comply with their duty of
candor. Failure to do so going forward may result in sanctions including
dismissal or affirmance, monetary sanctions, disciplinary proceedings, and
payment of attorney’s fees. 10th Cir. R. 46.5(C).
***
We find no error by the district court. AFFIRMED.