KESHIA PORTER, as the wrongful death representative for the claimants entitled to recover for the wrongful death of Delandis Richardson, deceased, Plaintiff - Appellant,
FORD MOTOR COMPANY, Defendant-Appellee.
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
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
LUCERO, McHUGH, and MORITZ, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
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.
husband, Delandis Richardson, was killed in an auto accident
in Campbell County, Wyoming, on November 25,
2014. 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. Countryman
requested appointment as Richardson's WDR under Wyo.
Stat. §§ 1-38-101 to 105.
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.
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.
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
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.
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. ...