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Porter v. Ford Motor Co.

United States Court of Appeals, Tenth Circuit

March 12, 2019

KESHIA PORTER, as the wrongful death representative for the claimants entitled to recover for the wrongful death of Delandis Richardson, deceased, Plaintiff - Appellant,
v.
FORD MOTOR COMPANY, Defendant-Appellee.

          Appeal from the United States District Court No. 1:17-CV-00133-ABJ for the District of Wyoming

          Vincent L. Marable III, Paul Webb, P.C., Wharton, Texas (Vance Countryman, Vance T. Countryman, P.C., Lander, Wyoming, J. Hunter Craft and Laura A. Cockrell, Craft Law Firm, P.C., Houston, Texas, with him on the briefs), for Plaintiff-Appellant.

          Katherine B. Wellington, Hogan Lovells U.S. LLP, Washington, D.C. (Jessica L. Ellsworth, Hogan Lovells U.S. LLP, Washington, D.C., and Richard A. Mincer, Hirst Applegate, LLP, Cheyenne, Wyoming, with her on the brief), for Defendant-Appellee.

          Before LUCERO, McHUGH, and MORITZ, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         Keshia Porter appeals the district court's dismissal of her complaint as time barred. The district court concluded that this action is untimely under Wyo. Stat. § 1-38-102 because Porter did not file a petition for appointment as a wrongful death representative ("WDR") within two years of her husband's death. However, such a petition was filed by another putative representative within two years and Porter was appointed WDR in that state court action. She then filed the present suit within thirty days of her appointment. On these facts, we conclude that Porter's complaint is timely under Wyo. Stat. § 1-38-103(b)(ii). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

         I

         Porter's husband, Delandis Richardson, was killed in an auto accident in Campbell County, Wyoming, on November 25, 2014.[1] Within two years, on November 21, 2016, Vance Countryman filed a "Petition/Action for the Appointment of Wrongful Death Representative" in the District Court of Campbell County, Wyoming.[2] Countryman requested appointment as Richardson's WDR under Wyo. Stat. §§ 1-38-101 to 105.

         The state court judge expressed concern that appointing Countryman, who would be acting as an attorney in the wrongful death suit, could pose ethical problems. On April 27, 2017, Porter filed an "Amended Petition/Action for the Appointment of Wrongful Death Representative" asking the court to appoint her as Richardson's WDR. It stated that "[t]his petition is 'made in a separate action brought solely for appointing the wrongful death representative' pursuant to Wyo. Stat. Ann. § 1-38-103(b)." The document was filed in the existing state court action. On July 10, 2017, the court appointed Porter the WDR for Richardson.

         Porter then filed this action against Ford Motor Company on August 7, 2017, as Richardson's WDR. Ford moved to dismiss, arguing that Porter's claims were barred by Wyoming's two-year limitations period for wrongful death actions. See Wyo. Stat. § 1-38-102(d). The district court agreed and dismissed the complaint with prejudice. Porter timely appealed.

         II

         We review de novo a dismissal under Fed.R.Civ.P. 12(b)(6). Acosta, 905 F.3d at 1158. In so doing, we accept as true all well-pled factual allegations and construe them in the light most favorable to the plaintiff. Id. "A federal court sitting in diversity applies state law for statute of limitations purposes." Burnham v. Humphrey Hosp. REIT Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005).

         Under Wyoming law, "[t]he right to sue for wrongful death is created purely by statute." Corkhill v. Knowles, 955 P.2d 438, 442 (Wyo. 1998). Any wrongful death claim must be brought in the name of the decedent's WDR. Wyo. Stat. § 1-38-102(a). "An action for wrongful death shall be commenced within two (2) years after the death of the decedent." § 1-38-102(d). However, "[i]f an action to appoint the [WDR] is properly filed, the limitation period under [§] 1-38-102(d) and any other applicable limitation periods shall be tolled from the time the action is filed until thirty (30) days after an order appointing the [WDR] is entered." § 1-38-103(b)(ii). The Wyoming Supreme Court has explained that this limitations period is a condition precedent to filing suit. Corkhill, 955 P.2d at 442.

         The district court stated that the dispositive question is whether Porter's Amended Petition relates back to the Petition filed by Countryman. We conclude that a relation back inquiry is unnecessary. The Wyoming statute sets forth a straightforward conditional statement: "If an action to appoint the [WDR] is properly filed," then "the limitation period . . . shall be tolled from the time the action is filed until thirty (30) days after an order appointing the [WDR] is entered." § 1-38-103(b)(ii). The antecedent was satisfied when the Petition to appoint a WDR was filed within two years of Richardson's death, on November 21, 2016. ...


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