UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

OPTIMA OIL & GAS COMPANY, LLC, 

a Colorado Limited Liability Company, 

 Plaintiff-Appellant, 

v. 

MEWBOURNE OIL COMPANY, 

a Texas Corporation, 

 Defendant-Appellee. 

No. 11-6230 

(D.C. No. 5:09-CV-00145-C) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, HOLLOWAY, and MATHESON, Circuit Judges. 

 

 Optima Oil & Gas Company, LLC, appeals from the district court’s order 

granting Mewbourne Oil Company’s motion to dismiss for lack of subject matter 

jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 23, 2012

Elisabeth A. Shumaker 

Clerk of Court
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BACKGROUND 

 Optima owned 85% of the oil and gas leasehold rights in certain property in 

Ellis County, Oklahoma (the Unit).1

 Mewbourne owned the remaining 15%. In 

2006, Optima informed Mewbourne that it intended to be the operator of the Unit and 

that it was taking steps toward development of the Unit. Nonetheless, Mewbourne 

filed an application with the Oklahoma Corporation Commission (OCC) seeking an 

order force pooling Optima’s rights and interests in the Unit and naming Mewbourne 

as the operator of the Unit.2

 Mewbourne sent notice of the application and hearing to 

Optima’s Oklahoma City, Oklahoma office. An Optima employee signed the certified 

mail receipt, but did not give anyone in management the certified mail. Optima did 

not appear at the hearing on the application, because it did not know about it. 

Despite knowing Optima’s opposition to the pooling application, Mewbourne 

proceeded at the hearing before an OCC Administrative Law Judge (ALJ) with an 

uncontested application for force pooling. The ALJ recommended to the OCC that 

the pooling application be granted. 

The day after the hearing, someone at Optima discovered the unopened mail 

containing the notice of hearing and the application. Optima filed a motion to stay 

 

1

 The Unit was in Section 1, Township 20 North, Range 24 West, Ellis County, 

Oklahoma. 

2

 “‘Force pooling’ occurs when the [OCC] requires owners of drilling rights to 

pool their interests and contribute to development costs.” Fleet v. Sanguine, Ltd., 

854 P.2d 892, 895 n.8 (Okla. 1993), abrogated on other grounds by Purcell v. Santa 

Fe Minerals, Inc., 961 P.2d 188, 193 (Okla. 1998). 
- 3 - 

issuance of an order granting the pooling application or to reopen proceedings. 

Although the motion was set for a hearing, the OCC granted the pooling application 

before the motion was heard. The same day the application was granted, Optima 

filed a motion to vacate the pooling order and requested a full hearing on the 

application’s merits. 

The ALJ held a hearing on the motion to reopen, at which Optima presented 

witness testimony and argued that Mewbourne knew it opposed the application for 

force pooling and to name Mewbourne as operator. Mewbourne also appeared at the 

hearing and presented argument. The following day, the ALJ heard the motion to 

vacate, and the parties presented additional testimony, evidence, and argument. 

Mewbourne’s witness admitted on redirect that he knew Optima objected to the 

pooling application and request to name Mewbourne as operator. The ALJ 

recommended that the pooling order be vacated and the matter be reopened for a 

complete hearing on the merits, in light of the question of notice and Mewbourne’s 

knowledge that Optima opposed the pooling application. An appellate referee agreed 

with the ALJ’s recommendation, but the OCC rejected the recommendations to grant 

the motions to vacate and reopen. Optima appealed. 

The Oklahoma Court of Civil Appeals vacated the pooling order and the order 

denying the motions to reopen and to vacate, concluding that the OCC erroneously 

designated Mewbourne as operator. The Oklahoma Court of Civil Appeals found 

that Optima did not have actual notice of the pooling application and that Mewbourne 
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had presented the application as uncontested despite knowing that Optima would 

oppose it. Also, the court found that Mewbourne misled the OCC by failing to 

disclose facts necessary for the OCC to make an informed decision. The Oklahoma 

Court of Civil Appeals remanded to the OCC “for a full hearing on the merits of 

Mewbourne’s Pooling Application and any further proceedings consistent with this 

opinion.” Aplt. App., Vol. 1, at 47. The Oklahoma Supreme Court affirmed the 

Oklahoma Court of Civil Appeal’s decision in favor of Optima. 

Optima then filed this suit in federal district court against Mewbourne, 

alleging claims of tortious interference with contractual relationships and tortious 

interference with prospective business opportunities and seeking damages.3

 The 

complaint asserted that while the appeal from the OCC’s decision was pending, 

Optima’s lessors agreed to extend the leases for six months to commence drilling. 

Even though the lease extensions were recorded, Mewbourne contacted the lessors 

and convinced them to sign top leases covering the same leases Optima held.4

 

Optima asserted that although Mewbourne knew Optima’s lease extensions would 

expire if Mewbourne delayed drilling beyond the six-month extension time, 

Mewbourne filed a motion with the OCC for a one-year extension of time to begin 

 

3

 Optima also asserted abuse-of-process, fraud, and constructive-fraud claims in 

its complaint, but later voluntarily dismissed those claims. 

4

 A top lease is a “lease[] that take[s] effect only if the pre-existing lease should 

expire or be terminated.” Concorde Res. Corp. v. Kepco Energy, Inc., 254 P.3d 734, 

736 n.4 (Okla. Civ. App. 2011). 
- 5 - 

drilling. A hearing was held on the motion. Both parties appeared and Optima 

objected to an extension. According to Optima, Mewbourne misrepresented at the 

hearing that granting an extension would preserve the status quo, even though 

Mewbourne knew that Optima would lose its leasehold rights in the Unit and those 

rights would vest in Mewbourne due to the top leases. The OCC granted a one-year 

extension of the date to begin drilling. Optima successfully appealed, but its leases 

had already expired and Mewbourne had obtained all of Optima’s leasehold interests. 

In the complaint, Optima asserted that Mewbourne’s tortious conduct caused it 

to lose significant business opportunities and subjected it to financial harm. Optima 

maintained that during Mewbourne’s actions before the OCC to force pool the Unit, 

Mewbourne, under oath, knowingly withheld and misrepresented material facts to the 

OCC, wrongfully depriving Optima of its leasehold rights and interests. And 

“Mewbourne engaged in wrongful and fraudulent conduct at the [OCC] designed to 

deny Optima the ability to commence drilling within the time necessary to preserve 

its leasehold rights.” Id. at 25. Further, Optima contended that Mewbourne’s 

actions, despite knowing Optima held an 85% leasehold interest, resulted in 

extinguishment of Optima’s leasehold interests, thereby denying Optima prospective 

business opportunities. 

 The district court denied Mewbourne’s first two motions to dismiss—one 

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon 

which relief may be granted and the other under Federal Rule of Civil Procedure 
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12(b)(1) for lack of subject matter jurisdiction due to incomplete diversity of 

citizenship between the parties. The court granted, in part, Optima’s motion for 

partial summary judgment under Federal Rule of Civil Procedure 56, holding that 

Mewbourne is bound by the Oklahoma Court of Civil Appeal’s determination that 

Mewbourne misled the OCC, causing it to enter an erroneous pooling order. 

 Mewbourne filed a third motion to dismiss. This Rule 12(b)(1) motion to 

dismiss for lack of subject matter jurisdiction asserted that Optima must submit its 

tortious interference claims for damages to the OCC. The district court granted the 

motion, relying on Leck v. Continental Oil Co., 800 P.2d 224 (Okla. 1989). In Leck, 

the plaintiff sought damages for misrepresentations the defendant made to the OCC 

during a hearing. Id. at 229. Leck held that the OCC has jurisdiction to consider 

intrinsic fraud claims for damages based on a defendant’s misrepresentations to the 

OCC during adversarial proceedings. Id. at 229-30. The district court determined 

that, as in Leck, Optima’s complaint made clear that its tortious interference claims 

arose from Mewbourne’s misrepresentations to the OCC and jurisdiction would 

therefore lie only in the OCC, not the district court. This appeal followed.5

 

 

5

 Before ruling on the second motion to dismiss, the district court held an 

evidentiary hearing on the issue of whether there was complete diversity of 

citizenship between the parties. The court concluded that there was. On appeal, we 

granted Optima’s unopposed motion to file a Supplemental Appendix containing an 

affidavit more clearly establishing diversity. Accordingly, the only jurisdictional 

question before us is whether the district court erred in granting the third motion to 

dismiss. 
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ANALYSIS 

We review de novo the district court’s Rule 12(b)(1) dismissal for lack of 

subject matter jurisdiction. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 

2009). In doing so, we “accept[] the district court’s findings of jurisdictional facts 

unless they are clearly erroneous.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d 

1220, 1231 (10th Cir. 2012) (internal quotation marks omitted). 

Optima argues that the district court had subject matter jurisdiction over its 

tort claims related to or arising from Mewbourne’s misconduct before the OCC. 

Optima contends that the court applied Leck too broadly, because Leck is limited to 

cases involving intrinsic fraud, whereas its tort claims involve extrinsic fraud. 

See Leck, 800 P.2d at 226 (stating that “allegations . . . in the nature of intrinsic 

fraud” must be decided in forum where fraud occurred). Optima maintains that all 

issues of fact concerning intrinsic fraud were resolved by the Oklahoma Court of 

Civil Appeals, but its tort claims could not be resolved by the OCC because they are 

not based on the adjudicated facts. 

Leck defines intrinsic fraud as 

any fraudulent conduct of the successful party which was practiced 

during the course of an actual adversary trial of the issues joined and 

which had no effect directly and affirmatively to mislead the defeated 

party to his injury after he announced ready to proceed with trial. If 

during the trial the successful party urges forged instruments or perjured 

testimony or fails to introduce witnesses of whom he had knowledge 

and whose testimony would help his adversary and impair his own case, 

he is guilty of fraud; but it is intrinsic fraud, for relief from which 

application must be made to the court having jurisdiction of the issues 

joined and tried. 
- 8 - 

800 P.2d at 229-30 (internal quotation marks omitted). In contrast, extrinsic fraud is 

“(a) any fraudulent conduct of a successful party, (b) perpetrated outside of an actual 

adversary trial or process and (c) practiced directly and affirmatively on the defeated 

party, (d) whereby he was prevented from presenting fully and fairly his side of the 

case.” Patel v. OMH Med. Ctr., Inc., 987 P.2d 1185, 1196 (Okla. 1999). “Examples 

of extrinsic fraud include false representations that the defeated party is merely a 

nominal party against whom no relief is sought, false promise of compromise, 

concealment of suit, kidnapping of witnesses, and similar conduct.” Id. The Leck

court found that the “allegations of misrepresentation” in that case were “allegations 

of intrinsic fraud because they refer[red] to false information given by the appellee at 

the adversarial hearing before the [OCC].” 800 P.2d at 230. 

 In its complaint, Optima asserted misrepresentation by Mewbourne to the OCC 

as the basis for its claims. With respect to the tortious interference with contractual 

and business relations claim, Optima asserted that “[a]s a result of Mewbourne’s 

misconduct, Mewbourne interfered with Optima’s contractual rights under its leases. 

. . . Mewbourne engaged in wrongful and fraudulent conduct at the [OCC] designed 

to deny Optima the ability to commence drilling within the time necessary to 

preserve its leasehold interests.” Aplt. App., Vol. 1, at 25. With respect to the 

tortious interference with prospective business advantage, Optima asserted that 

“Mewbourne’s intentional and tortious acts and conduct resulted in the 

extinguishment of Optima’s leasehold interests. Mewbourne wrongfully, 
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intentionally and maliciously interfered with [Optima’s] prospective business 

advantage by cutting off Optima’s leasehold interests and all potential business 

opportunities related thereto . . . .” Id. at 26. 

As the district court found, these claims arise from misrepresentations made by 

Mewbourne to the OCC and any damages arise as a result of the misrepresentations. 

The alleged fraudulent misrepresentations to the OCC with regard to cutting off 

Optima’s leasehold interests are intrinsic fraud. See Fransen v. Conoco, Inc., 64 F.3d 

1481, 1489 (10th Cir. 1995). “A claim that a party misrepresented facts to the OCC 

is properly brought before the OCC.” Id. (citing Leck); Leck, 800 P.2d at 230 

(“Relief from intrinsic fraud must be made by direct attack in the same case in which 

the fraud was committed.”). The district court therefore correctly determined that it 

did not have jurisdiction to consider Optima’s claims. See Fransen, 64 F.3d at 1489 

(citing Leck); Leck v. Cont’l Oil Co., 892 F.2d 68, 69 (10th Cir. 1989) (per curiam) 

(concluding that district court correctly decided that it lacked subject matter 

jurisdiction to consider issue regarding misrepresentation to OCC). 

 Optima also contends that Leck is distinguishable because there was no 

adversarial proceeding on the merits of the force pooling application.6

 See Leck, 

 

6

 Mewbourne contends that this issue, as well as others, were not raised in the 

district court and therefore should not be considered on appeal. We reject that 

argument because waiver and forfeiture rules do not apply to jurisdictional issues and 

therefore issues concerning jurisdiction can be raised at any time. See Forest 

Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 n.7 (10th Cir. 2007); Huerta v. 

Gonzales, 443 F.3d 753, 755 (10th Cir. 2006). 
- 10 - 

800 P.2 at 230 (noting misrepresentation made at adversarial hearing). It is true that 

the proceedings on the uncontested application were not adversarial because Optima 

had not received actual notice of the hearing and application and therefore did not 

appear at the hearing. All other proceedings before the OCC, however, were 

adversarial proceedings. And the Oklahoma Court of Civil Appeals explicitly 

remanded for a full hearing on the merits of the pooling application. Therefore, we 

conclude that there were adversarial proceedings available for Optima to assert its 

claims against Mewbourne. 

 Optima next contends that Okla. Stat. tit. 23, § 3 permits a cause of action for 

tortious interference. See id. (“Any person who suffers detriment from the unlawful 

act or omission of another, may recover from the person in fault a compensation 

therefor in money, which is called damages.”). This statute does not in any way 

undermine Leck’s holding that proceedings on intrinsic fraud must occur before the 

OCC, not the district court. 

 Optima further contends that because it does not seek relief from the prior 

OCC ruling on the intrinsic fraud issues that have already been vacated and there is 

no issue to reconsider at the OCC, the only remaining issue is a private dispute for 

money damages, which is appropriately heard in the district court. “The distinction 

between public and private rights is not always immediately apparent.” Rogers v. 

Quiktrip Corp., 230 P.3d 853, 857 (Okla. 2010). Leck states that district courts have 

jurisdiction over private rights disputes, whereas the OCC has limited jurisdiction to 
- 11 - 

protect the “public rights in development and production of oil and gas.” 800 P.3d 

at 226; see id. (indicating that unitization orders, pooling orders, and orders setting 

allowables on unit’s well are matters of public rights; recognizing that OCC “has 

jurisdiction to hear only public rights disputes involving actions on joint operating 

agreements or disputes concerning a pooling order’s effect”); see also Rogers, 

230 P.3d at 857 (“Public rights, at a minimum, must arise between the government 

and others: the liability of one individual to another under the law as defined is a 

matter of private rights.”). When addressing the misrepresentation issue, Leck does 

not expressly state that it is dealing with a public right. We conclude, however, that 

Leck considered a public right, because the essence of the claim was intrinsic fraud 

on a tribunal. Since we conclude that intrinsic fraud is at issue in this case, we also 

conclude that a public right is at issue. Additionally, we note the Leck plaintiff 

sought money damages for the misrepresentations to the OCC. Leck, 800 P.2d at 

229. Therefore, nothing in Leck precludes Optima from also seeking damages from 

the OCC. 
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CONCLUSION 

 Accordingly, we conclude the district court correctly granted Mewbourne’s 

motion to dismiss for lack of subject matter jurisdiction. The judgment of the district 

court is AFFIRMED. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge