FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 27, 2012
Elisabeth A. Shumaker
Clerk of Court
LOU KAY JOHNSON,
Plaintiff-Appellant,
v. No. 11-3268
(D.C. No. 6:10-CV-01342-MLB-KMH)
CHRISTINE M. FISHER, M.D.; (D. Kan.)
JEFFREY D. HENRY, M.D.;
MATTHEW P. SHAFFER, M.D.,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Lou Kay Johnson appeals the district court’s order dismissing as untimely her
amended complaint alleging medical negligence under Kansas state law. We
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
Ms. Johnson’s claims rely on two cases she filed sequentially in the United
States District Court for the District of Kansas. Her claim that her second case was
timely depends on her argument that the district court clerk acted improperly in not
issuing the summonses in her first case. This appeal is from the judgment of
dismissal entered in the second case. We provide a brief description of each case.
A. First Case
Alleging that on or about July 7, 2008, she discovered that she had suffered
medical negligence, Ms. Johnson and her husband filed a pro se federal complaint
against the defendants on July 6, 2010, within the Kansas two-year statute of
limitations for such cases. See Kan. Stat. Ann. § 60-513(a)(7), (c). On July 12,
2010, the district court granted the plaintiffs leave to proceed in forma pauperis and
instructed them to provide completed summonses to the court clerk to be issued.
Ms. Johnson says she obtained the summons forms from the court clerk, filled them
out, and returned them to the clerk to be issued. She also says that the clerk received
the summonses on July 21, 2010, but the issued summonses were not returned to her
so she could arrange for service on the defendants.
Also on July 12, 2010, the district court issued an order to show cause by
August 2, 2010 why the case should not be dismissed for lack of subject matter
jurisdiction. The complaint, which made no claims under federal statutory or
constitutional law, averred that the plaintiffs and the defendants were all citizens
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of Kansas. Therefore, the complaint did not establish diversity jurisdiction.
See 28 U.S.C. § 1332(a)(1) (providing for federal court jurisdiction over “civil
actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different States”).
Ms. Johnson’s pro se response to the show-cause order did not address the issue of
diversity. Accordingly, the district court dismissed the case for lack of subject matter
jurisdiction due to the lack of diversity.
Ms. Johnson then engaged an attorney who filed a Motion for Alteration or
Amendment of Judgment requesting that the dismissal be rescinded to permit
Ms. Johnson to effect service of process so she could utilize the Kansas Savings
Statute, Kan. Stat. Ann. § 60-518, and refile her case notwithstanding that the
limitations period had run.1 The district court denied the motion.
B. Second Case
Represented by counsel, Ms. Johnson, as sole plaintiff, filed a second case in
the federal district court, this time asserting that she was a citizen of Arkansas, the
defendants were citizens of Kansas, and the amount in controversy exceeded
$75,000, thus alleging diversity jurisdiction. The summonses were promptly served
on the defendants.
1
As discussed below, § 60-518 provides a six-month period to refile a prior,
timely action that failed otherwise than on the merits and the limitations period has
run.
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Defendants moved to dismiss, invoking the Kansas two-year statute of
limitations for medical negligence actions. They averred that Ms. Johnson’s
complaint in the second case, filed on October 4, 2010, was filed more than two years
after she discovered the alleged medical negligence on July 7, 2008. Ms. Johnson did
not dispute that the two-year statute of limitations applied, but she asserted that the
Kansas Savings Statute operated to make her second case timely. Ms. Johnson
argued that, under the Kansas doctrine of unique circumstances, the district court
clerk’s failure to issue the summonses in the first case was a third-party error that
prevented her from “commencing” the first case.
The district court granted defendants’ motions to dismiss, holding that (1) the
second case was filed outside the applicable two-year statute of limitations; (2) the
first case had not been “commenced” within the meaning of the Savings Statute,
Kan. Stat. Ann. § 60-203(a); and (3) the doctrine of unique circumstances, even if
still viable, did not apply because “there is nothing in [Fed. R. Civ. P. 4] which
requires the clerk to issue summonses before plaintiffs responded to the order to
show cause [in the first case], especially when lack of subject matter jurisdiction
[was] evident from the face of the complaint.” Aplt. App. Vol. III at 505. Although
the court noted that the record did not reflect that Ms. Johnson returned the
summonses to the clerk to be issued, the court nevertheless held that even if she had
returned them, there was no requirement for the clerk to issue them before the case
was dismissed for lack of jurisdiction. Ms. Johnson appeals, renewing her argument
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that the doctrine of unique circumstances, coupled with the Savings Statute, rendered
the second case timely. She further asserts that the district court erred in not
construing her allegations as true and improperly relied on the record concerning
whether she returned the summonses to the clerk.
II. Discussion
Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) & (6), based
on lack of subject matter jurisdiction and failure to state a claim, and pursuant to
Fed. R. Civ. P. 12(c), for judgment on the pleadings. We review de novo an order of
dismissal under each of those rules. Lucero v. Bureau of Collection Recovery, Inc.,
639 F.3d 1239, 1242 (10th Cir. 2011) (dismissal under Rule 12(b)(1) reviewed
de novo); Bixler v. Foster, 596 F.3d 751, 755 n.2 (10th Cir. 2010) (dismissal under
Rules 12(b)(6) & (c) reviewed de novo). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[M]ere labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations to support each claim.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal
quotation marks omitted).
“Because the district court’s jurisdiction was based on diversity of
citizenship, . . . [t]his court must . . . ascertain and apply [Kansas substantive] law
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with the objective that the result obtained in the federal court should be the result that
would be reached in [a Kansas] court.” Brady v. UBS Fin. Servs., Inc., 538 F.3d
1319, 1323 (10th Cir. 2008) (internal quotation marks omitted). Under Kansas law,
“both the viability and applicability of the unique circumstances doctrine” are
reviewed de novo. Bd. of Cnty. Comm’rs v. City of Park City, 260 P.3d 387, 390
(Kan. 2011).
Two Kansas statutes apply. First, Kan. Stat. Ann. § 60-203(a) provides in
relevant part: “A civil action is commenced at the time of: (1) Filing a petition with
the court, if service of process is obtained . . . within 90 days after the petition is
filed . . . .” (emphasis added). Second, the Kansas Savings Statute, Kan. Stat. Ann.
§ 60-518, states: “If any action be commenced within due time, and the plaintiff fail
in such action otherwise than upon the merits, and the time limited for the same shall
have expired, the plaintiff . . . may commence a new action within six (6) months
after such failure.” (emphasis added). Accordingly, Ms. Johnson must have
“commenced” her first case to take advantage of the Savings Statute. It is undisputed
that she did not “commence” her first case because she did not obtain service of
process, but she claims that the fault lies with the court clerk who did not return to
her the issued summonses in order to have them served. This, she argues, entitles her
to the benefit of the doctrine of unique circumstances.
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Kansas adopted the doctrine of unique circumstances in the appeal context,
holding that a party may pursue an appeal even though the notice of appeal was
untimely if the failure to file a timely notice resulted from (1) a reasonable,
good-faith reliance on “judicial action that seemingly extended the appeal period,”
(2) the order extending the appeal period allowed no more than 30 days and was
entered prior to the expiration of the official appeal period, and (3) the party filed a
notice of appeal within the extended period. Schroeder v. Urban, 750 P.2d 405,
407-08 (Kan. 1988) (internal quotation marks omitted), overruled by Bd. of Cnty.
Comm’rs, 260 P.3d at 394. Ms. Johnson relies on Slayden v. Sixta, 825 P.2d 119,
121, 125 (Kan. 1992), where the Kansas Supreme Court applied the doctrine of
unique circumstances to excuse the delay in serving the defendant caused by the
court clerk’s error in issuing a summons with an incorrect address.
Ms. Johnson’s theory is that the “failure” of the court clerk in the first case to
issue the summonses and return them to her for service was the court error required
to invoke the doctrine. She asserts that if the clerk had issued and returned the
summonses, she could have served them on defendants before the first case was
dismissed, thus “commencing” her first case pursuant to § 60-203(a). Once
“commenced,” according to Ms. Johnson, the Savings Statute would have preserved
the first case’s filing date to make the second case timely.
More specifically, Ms. Johnson argues that the district court erred in not
accepting as true her allegation that the clerk’s “failure” to issue the summonses
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caused her legal injury. See Kan. Penn Gaming, 656 F.3d at 1214 (holding that
district court should assume as true the plaintiff’s specific factual allegations when
ruling on a motion to dismiss). But Ms. Johnson’s characterization of the clerk’s
inaction as negligent or even wrongful is “a mere[] conclusion of law . . . not entitled
to a presumption of truth.” See id. at 1219. She also asserts that the district court
erred in not assuming as true her claim that she returned the summonses to the clerk
to be issued. The court noted that the record does not reflect that the clerk received
the summonses from her. But again, the court held that “even if the summonses had
been returned [to the clerk], there is nothing in [Fed. R. Civ. P. 4] which requires the
clerk to issue summonses before plaintiffs responded to the order to show cause [in
the first case], especially when lack of subject matter jurisdiction is evident from the
face of the complaint.” Aplt. App. Vol. III at 505. Therefore, the court did not rely
on the record and instead assumed that Ms. Johnson had returned the summonses to
the clerk.
Ms. Johnson also argues that the district court erred in dismissing her case
before the court clerk issued the summonses. But in none of her case authority was
federal subject matter jurisdiction lacking on the face of the complaint, as it was in
Ms. Johnson’s first case. See, e.g., Nichols v. Schubert, 499 F.2d 946, 946 (7th Cir.
1974) (complaint alleged violation of federal civil rights); Dear v. Rathje, 485 F.2d
558, 559 (7th Cir. 1973) (same); Bauers v. Heisel, 361 F.2d 581, 584 (3d Cir. 1966)
(same); Urbano v. Calissi, 353 F.2d 196, 197 (3d Cir. 1965) (same). In addition,
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Fed. R. Civ. P. 1 provides that the rules “should be construed and administered to
secure the just, speedy, and inexpensive determination of every action and
proceeding.” And under Fed. R. Civ. P. 12(h)(3), “[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
To the extent Ms. Johnson relies on Fed. R. Civ. P. 4(b) of the Federal Rules of
Civil Procedure2 as requiring the clerk to issue the summonses before the case was
dismissed on jurisdictional grounds, this argument, raised for the first time in her
reply brief, “comes too late. This court does not ordinarily review issues raised for
the first time in a reply brief.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 948 n.2
(10th Cir. 2011) (internal quotation marks omitted).
In sum, there is no basis for application of the doctrine of unique
circumstances, even assuming the doctrine is still viable under Kansas law. See, e.g.,
Woods v. Unified Gov’t of WYCO/KCK, 275 P.3d 46, 50 (Kan. 2012) (“Recently, we
abolished the unique circumstances doctrine, which previously had allowed a
discretionary enlargement of the time to appeal in equitable situations . . . .”).
Moreover, the district court properly declined to categorize as fact Ms. Johnson’s
conclusory legal claim that the court clerk had “failed” to issue the summonses, and
2
Although Ms. Johnson cites to Rule 4(a), we assume she means Rule 4(b),
which refers to issuance of a summons. Rule 4(b) was amended in 1993 to include
the pertinent provisions of former subdivision (a). See Fed. R. Civ. P. 4 advisory
committee’s note (“Revised subdivision (b) replaces the former subdivision (a).”).
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the court did not improperly rely on the record concerning whether Ms. Johnson had
returned the summonses to the clerk to be issued.
III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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