Varnell v. Dora Consolidated School District , 756 F.3d 1208 ( 2014 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 1, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TORI VARNELL,
Plaintiff - Appellant,
v.
No. 13-2135
DORA CONSOLIDATED SCHOOL
DISTRICT; SUPERINTENDENT
STEVEN BARRON; AMBER SHAW,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 2:12-CV-00905-JCH-GBW)
Shannon L. Kennedy, Kennedy Law Firm, Albuquerque, New Mexico, for Plaintiff -
Appellant.
Andrew M. Sanchez, Cuddy & McCarthy, LLP, Albuquerque, New Mexico, for
Defendants - Appellees Dora Consolidated School District and Steve Barron.
Desiree D. Gurule (Kevin M. Brown, Keya Koul, with her on the brief), Brown Law
Firm, Albuquerque, New Mexico, for Defendant – Appellee Amber Shaw.
Before HARTZ, EBEL, and PHILLIPS, Circuit Judges.
HARTZ, Circuit Judge.
Amber Shaw coached Plaintiff Tori Varnell in several sports while she was a
student in the Dora Consolidated School District (Dora Schools). According to Plaintiff,
Shaw sexually abused her for more than a year, ending while she was in the ninth grade,
sometime in late 2006 or early 2007. On May 24, 2012, when Plaintiff was 20, she sued
Ms. Shaw, Dora Schools, and Dora Schools Superintendent Steve Barron under the New
Mexico Tort Claims Act, the Civil Rights Act of 1871, and Title IX of the Education
Amendments of 1972. She later sought to amend her complaint to add an additional
party and additional claims. On Defendants’ motion the district court granted summary
judgment on the federal claims as untimely, denied the proposed amendment to the
complaint as futile, and dismissed the state tort claims without prejudice.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We hold as follows:
The applicable statute of limitations on the federal claims is New Mexico’s general three-
year statute for tort claims; New Mexico’s special statute for child sexual abuse does not
apply as a statute of limitations or tolling provision because it is not generally applicable.
Although the limitations period was tolled by Plaintiff’s minority, it was not further tolled
by her alleged incompetence because she produced no evidence of incompetence.
Plaintiff’s contention on appeal that the period was tolled by fraudulent concealment
from her mother was not preserved in the district court. And Plaintiff’s federal claims
accrued when she could file suit and obtain relief, which was no later than when the
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abuse stopped, not when she allegedly learned the full extent of the resultant emotional
injury. In addition, the district court properly dismissed Plaintiff’s state-law claims
without prejudice once it had dismissed with prejudice her federal claims. Finally, we
affirm the district court’s denial of Plaintiff’s motion to amend because she presents no
argument why her new federal claims would not be barred as untimely on the same
grounds as her original claims, and it would be futile to proceed with state-law claims
that would be dismissed upon rejection of the federal claims.
I. BACKGROUND
We summarize the record in the light most favorable to Plaintiff. See SEC v.
Thompson, 732 F.3d 1151, 1157 (10th Cir. 2013) (in reviewing a grant of summary
judgment, “a court views the evidence and draws reasonable inferences therefrom in the
light most favorable to the nonmoving party” (brackets and internal quotation marks
omitted)).
Ms. Shaw was coaching Plaintiff in volleyball, track, and basketball when she
repeatedly sexually abused Plaintiff. The period during which the abuse occurred is
unclear but apparently lasted from January 2005, when Plaintiff was in the seventh grade,
until late 2006 or early 2007, when Plaintiff was a ninth grader. Plaintiff “hated every
minute of the sexual encounters,” Aplt. App., Vol. I at 12, and “wanted to kill herself as
she did not see a way out,” id. at 11. But she did not report the misconduct because
Ms. Shaw instructed her not to tell anyone and she feared social repercussions. The
abuse ended when Ms. Shaw resigned.
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After graduating from high school in 2010, Plaintiff told a spiritual mentor about
the alleged abuse. The mentor told her that Ms. Shaw’s conduct was criminal and other
girls could be abused if she did nothing. At this point Plaintiff “realized for the first time
that [Ms. Shaw] could and probably would molest other girls and that what happened was
not [her] fault and that [she] had a duty to try to protect others and to tell the people who
loved [her] the truth about what had happened with [Ms.] Shaw.” Id. at 78. She told her
mother on July 12, 2010, that she had been sexually molested by Ms. Shaw. Her mother
told Superintendent Barron and he reported the abuse to the local authorities. A state
grand jury indicted Ms. Shaw for the abuse.
Plaintiff was examined by psychiatrist Gilbert Kliman on May 7, 2012.
Dr. Kliman opined that up to the date of the evaluation Plaintiff did not realize that she
was being “emotionally manipulated” and did not appreciate the “consequences to her of
this two-year training epoch during her years of adolescent personality and sexual
identity formation, or upon her anxiety level.” Id. at 80. Further, Plaintiff did not
comprehend how the abuse had “troubled and quietly damaged her,” and she only began
recognizing the harm done to her after speaking to her spiritual mentor in 2010. Id. at 81.
Dr. Kliman also said that Plaintiff did not fully comprehend the emotional and physical
damage she had suffered and would suffer because of the abuse.
About two weeks after the psychiatric examination, on May 24, 2012, Plaintiff
sued Dora Schools, Mr. Barron, and Ms. Shaw in New Mexico state court. At the time,
she was 20 years old and in college, pursuing a biology degree. The 16-page complaint
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raised a claim under the New Mexico Tort Claims Act; civil-rights claims under the Civil
Rights Act of 1871, 42 U.S.C. § 1983 (for violations of substantive due process, equal
protection, and the Fourth Amendment); and a claim under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 (prohibiting discrimination based on sex in
federally funded educational programs). Defendants removed the case to the United
States District Court for the District of New Mexico. Plaintiff later moved to amend her
complaint to add additional claims and an additional defendant (the head coach at her
school).
Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) on the ground
that all claims were time barred. The district court adopted a magistrate judge’s
recommendation to convert Defendants’ motion to dismiss into a motion for summary
judgment. It granted summary judgment on the federal claims and declined to exercise
supplemental jurisdiction over the remaining state claims, dismissing them without
prejudice. Plaintiff did not object to the magistrate judge’s recommendation to deny as
futile her motion to amend the complaint, and the district court adopted the
recommendation.
After the district court dismissed the action, Plaintiff moved under Fed. R. Civ.
P. 60(a) to have the state claims remanded to the state court instead of dismissed. The
motion was denied.
On appeal Plaintiff contends that (1) her federal-law claims are timely (a) because
the limitations period was tolled by (i) N.M. Stat. Ann. § 37-1-30 (a child-sexual-abuse
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statute), (ii) her mental incapacity, and (iii) fraudulent concealment, and (b) because her
claims did not accrue until 2010 when she first understood the injury she had suffered;
(2) the district court erred by refusing to remand her state-law claims to state court
instead of dismissing them; and (3) the court erred in denying as futile her motion to
amend the complaint.
II. TIMELINESS OF CLAIMS
The district court granted summary judgment to Defendants on Plaintiff’s federal-
law claims on the ground that they were untimely. “We review the district court’s grant
of summary judgment de novo, applying the same standards that the district court should
have applied.” Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011)
(internal quotation marks omitted). “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine “if
there is sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way,” and a fact is material “if under the substantive law it is essential to the
proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
2013) (internal quotation marks omitted). “We examine the record and all reasonable
inferences that might be drawn from it in the light most favorable to the [nonmoving]
party.” Merrifield, 654 F.3d at 1077 (internal quotation marks omitted).
The text of § 1983 does not contain a statute of limitations. “When Congress has
not established a time limitation for a federal cause of action, the settled practice has been
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to adopt a local time limitation as federal law if it is not inconsistent with federal law or
policy to do so.” Wilson v. Garcia, 471 U.S. 261, 266–67 (1985). The Supreme Court
assumed that “Congress intended the identification of the appropriate statute of
limitations to be an uncomplicated task for judges, lawyers, and litigants, rather than a
source of uncertainty, and unproductive and ever-increasing litigation.” Id. at 275.
Otherwise, “the legislative purpose to create an effective remedy for the enforcement of
federal civil rights [would be] obstructed by uncertainty in the applicable statute of
limitations, for scarce resources [would] be dissipated by useless litigation on collateral
matters.” Id. Although national uniformity was not required, there should be “uniformity
within each State.” Id. In particular, the limitations period should not “depend upon the
particular facts or the precise legal theory of [the] claim.” Id. at 274. As for which state
statute should be adopted, the Court held that the one that best fit § 1983 claims as a
whole would be the one for personal-injury actions. See id. at 280. And, as the Court
held a few years later, if “state law provides multiple statutes of limitations for personal
injury actions, courts considering § 1983 claims should borrow the general or residual
statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 250 (1989).
The law was settled in Wilson that for § 1983 claims arising in New Mexico the
limitations period is three years, as provided in New Mexico’s statute of limitations for
personal-injury claims. See 471 U.S. at 280; N.M. Stat. Ann. § 37-1-8 (West 2014). We
think that Plaintiff is expressing a vain hope when she argues that “the Supreme Court
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would modify its holding in [Owens] to allow an exception for victims of child abuse.”
Aplt. Br. at 28–29.
Not only the length of the limitations period, but also “closely related questions of
tolling and application,” are determined by state law in § 1983 actions. Wilson, 471 U.S.
at 269. The same reasoning that governed the selection of the applicable statute of
limitations should also apply to the selection of tolling statutes. Thus, the state tolling
provisions adopted for actions under § 1983 should not depend on the “particular facts or
the precise legal theory of the claim.” Id. at 274. Only generally applicable tolling
provisions—such as those based on minority, incapacity, and equitable grounds—should
be incorporated for use under § 1983. See Sain v. City of Bend, 309 F.3d 1134, 1138 (9th
Cir. 2002). As the Ninth Circuit has explained:
It would no less frustrate the federal interest in uniformity and the interest
in having firmly defined, easily applied rules were we to obediently apply
the residual statute of limitations, only to then adopt a tort-specific tolling
provision. Such a holding would succeed only in transferring the confusion
over the choice among multiple statutes of limitations to a choice among
multiple tolling provisions.
Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 580 (9th Cir. 2012) (brackets,
citation, and internal quotation marks omitted) (declining to apply state child-abuse
statute to determine timeliness of § 1983 claim).
Although the parties have ignored the point, we must also address the proper
limitations period for Plaintiff’s claim under Title IX. We agree with the magistrate
judge that we should apply the same state statutes that apply to § 1983 claims. That
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appears to be the uniform rule of the other circuits. See Stanley v. Trustees, 433 F.3d
1129, 1134 (9th Cir. 2006) (“For other civil rights actions, we have borrowed the state
statute of limitations for personal injury. Should we apply the same ruling for Title IX
claims? It appears that every circuit to consider the issue has held that Title IX also
borrows the relevant state’s statute of limitations for personal injury. The rationale of our
sister circuits is compelling, and we adopt it.” (citations and internal quotation marks
omitted)); Wilmink v. Kanawha Cnty. Bd. of Educ., 214 F. App’x 294, 296 n.3 (4th Cir.
2007); Cetin v. Purdue Univ., 94 F.3d 647 (7th Cir. 1996) (unpublished table decision).
This result is consistent with this circuit’s view of the limitations period under Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d. See Baker v. Bd. of Regents, 991 F.2d
628, 631 (10th Cir. 1993).
A. New Mexico Child-Sexual-Abuse Statute
We now turn to Plaintiff’s contention that the timeliness of her federal claims must
be determined under New Mexico Statute Annotated § 37-1-30(A) (West 2014). Section
37-1-30(A) provides:
An action for damages based on personal injury caused by childhood sexual
abuse shall be commenced by a person before the latest of the following
dates:
(1) the first instant of the person’s twenty-fourth birthday; or
(2) three years from the date of the time that a person knew or
had reason to know of the childhood sexual abuse and that the
childhood sexual abuse resulted in an injury to the person, as
established by competent medical or psychological testimony.
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It should be obvious from our above discussion that the statute is irrelevant to § 1983
cases because it does not apply to torts in general. We have already held that a state
statute of limitations restricted to child-abuse cases does not apply to § 1983. See Blake
v. Dickason, 997 F.2d 749, 750–51 (10th Cir. 1993). And even if we could do as Plaintiff
requests and construe § 37-1-30 as a tolling provision, it still fails the same general-
applicability requirement. Insofar as Cosgrove v. Kansas Department of Social
Rehabilitation Services, 162 F. App’x 823, 827–28 (10th Cir. 2006), says otherwise, we
reject it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential . . . .”).
B. Minority and Incapacity
Plaintiff has better luck, at least at the outset, invoking New Mexico’s general
statute allowing tolling of the limitations period because of minority and incapacity. The
statute states:
The times limited for the bringing of actions by the preceding provisions of
this chapter [including the three-year period for torts] shall, in favor of
minors and incapacitated persons, be extended so that they shall have one
year from and after the termination of such incapacity within which to
commence said action.
N.M. Stat. Ann. § 37-1-10 (West 2014). As noted above, § 1983 incorporates such state
general tolling provisions. See Wilson, 471 U.S. at 269; Fratus v. DeLand, 49 F.3d 673,
675 (10th Cir. 1995).
There is no doubt that Plaintiff qualifies for minority tolling, which would have
given her to age 19 to bring her action. But on May 24, 2012, when she filed this action,
Plaintiff was 20 years old.
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To extend the time further, Plaintiff alleges that she was incapacitated. New
Mexico courts have explained that a person is incapacitated when she “is unable to
manage [her] business affairs or estate, or to comprehend [her] legal rights or liabilities.”
Lent v. Emp’t Sec. Comm’n, 658 P.2d 1134, 1137 (N.M. Ct. App. 1982) (internal
quotation marks omitted). Under New Mexico law, “exceptions to statutes of limitation
must be construed strictly,” Slade v. Slade, 468 P.2d 627, 628 (N.M. 1970), and the
plaintiff invoking a tolling provision bears the burden of persuasion, see Stringer v.
Dudoich, 583 P.2d 462, 463 (N.M. 1978). Plaintiff has not met that burden.
Although Plaintiff’s opening brief asserts that she was incapacitated, she offers no
evidence that she could not manage her affairs or comprehend her legal rights and
liabilities. On the contrary, she had graduated from high school and was pursuing a
biology degree in college. Moreover, no later than July 2010 (almost two years before
this suit was filed), when, on the advice of her mentor, she told her mother of the abuse,
she was certainly able to discuss the abuse with others and she was aware that
Ms. Shaw’s conduct was criminal, that other girls could be harmed if she did not come
forward, that what happened was not her fault, and that she had a duty to tell others what
had happened. Any decent person would sympathize with the emotional trauma suffered
by a victim of such abuse, and such trauma can certainly impact one’s ability to deal with
various issues; but a rational trier of fact could not find that Plaintiff had shown that she
was unable to manage her business affairs or comprehend her legal rights during the year
before suit was filed. See Eber v. Harris Cnty. Hosp. Dist., 130 F. Supp. 2d 847, 871
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(S.D. Tex. 2001) (“The unsound mind exception serves to protect people who are unable
to participate in, control, or understand the progression and disposition of a lawsuit.”);
Nolde v. Frankie, 964 P.2d 477, 483 (Ariz. 1998) (sexual-abuse victims did not show that
they were unable to understand their legal rights and liabilities when they did not allege
that they were ever in denial that the abuse occurred or had repressed memories of the
abuse but, rather, admitted that they were always aware that the defendant had sexually
abused them).
C. Fraudulent Concealment
Under New Mexico law the limitations period is tolled if the party asserting
concealment shows “(1) the use of fraudulent means by the party who raises the bar of
the statute; (2) successful concealment from the injured party; and (3) that the party
claiming fraudulent concealment did not know or by the exercise of reasonable diligence
could not have known that he might have a cause of action.” Cont’l Potash, Inc. v.
Freeport-McMoran, Inc., 858 P.2d 66, 74 (N.M. 1993). This is a general tolling
provision and is therefore applicable here.
Plaintiff contends that Superintendent Barron had been alerted to the abuse by
Plaintiff’s teammates but concealed Ms. Shaw’s conduct by failing to report the abuse,
permitting Ms. Shaw to resign, and dissuading Plaintiff’s mother (with whom he was
allegedly having an affair) from reporting the abuse. On appeal, she argues that
concealment from her mother, who could have sued on her behalf when she was a minor,
justifies equitable tolling. But she cites no authority for such a tolling theory and we fail
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to see how such alleged concealment could have delayed her suit once she reached
majority. In any event, she forfeited the argument by not raising it below. See Lyons v.
Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (“We have . . . repeatedly
stated that a party may not lose in the district court on one theory of the case, and then
prevail on appeal on a different theory.”).
D. Claim Accrual
Finally, Plaintiff argues that her complaint was filed within the three-year
limitations period because her claim did not accrue until she had discovered the extent of
the injury inflicted on her by the abuse. She contends that “as a teenager and young
adult, [she] could not appreciate the damage done to her, nor has she fully discovered the
nuances of her chronic psychiatric injury.” Aplt. Br. at 20. According to Plaintiff, “[N]ot
until after [she] underwent counseling to address manifestations of her injury, was she
able to connect Coach Shaw’s sexual abuse to its lasting impacts on her life.” Id. at
20‒21. Thus, she argues, the district court erred because she “provided sufficient facts to
establish that a reasonable juror could find that until she was twenty years old, [she]
reasonably failed to discover she is suffering chronic psychiatric injuries as a result of
having been sexually molested by her female coach.” Id. at 49.
Although some New Mexico court decisions may support Plaintiff’s argument, the
time of accrual of a § 1983 claim is a matter of federal law “not resolved by reference to
state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). The same is true of a claim under
Title IX. See Baker, 991 F.2d at 632 (“Federal law controls questions relating to accrual
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of federal causes of action.”) The relevant federal law on accrual is set forth in Wallace,
which concerned the time of accrual of a § 1983 claim of false arrest contrary to the
Fourth Amendment. See id. at 387. Federal law governing accrual of causes of action,
said the Supreme Court, “conform[s] in general to common-law tort principles.” Id. at
388. And “[u]nder those principles, it is the standard rule that accrual occurs when the
plaintiff has a complete and present cause of action, that is when the plaintiff can file suit
and obtain relief.” Id. (brackets, citations, and internal quotation marks omitted). The
Court recognized, however, that the common law provides distinctive treatment to the
tort of false arrest, delaying accrual until the false imprisonment ends (a rule “dictated,
perhaps, by the reality that the victim may not be able to sue while he is still
imprisoned”), and it adopted that accrual date for the claim before it. Id. at 389 (citing,
among other authorities, Restatement (Second) of Torts § 899 cmt. c (1977)).
Following Wallace, we determine the accrual date of Plaintiff’s claim by looking
to the accrual date for the common-law tort most analogous to her § 1983 claim. That
tort is battery, which “occurs when an individual acts intending to cause a harmful or
offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact, and an offensive contact with the person of the other
directly or indirectly results.” Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197,
1208–09 (10th Cir. 2006) (ellipsis and internal quotation marks omitted); see Restatement
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(Second) of Torts § 18(1) (1965).1 As for the accrual of a battery claim, the Restatement
§ 899 comment c states as a general rule for torts, “[T]he statute [of limitations] does not
usually begin to run until the tort is complete, and may not begin to run even then if there
has been a series of continuous acts”; and, in the same paragraph cited by Wallace as
support for the accrual rule for false imprisonment, the comment adds that “[a] battery is
complete upon physical contact, even though there is no observable damage at the point
of contact.” By this standard, Plaintiff’s claim accrued no later than the last sexual abuse
by Ms. Shaw, sometime in late 2006 or early 2007.
Plaintiff argues that her claims accrued much later because she did not realize the
extent of her psychological injury until shortly before filing suit. She relies on what is
known as the “discovery rule,” which delays accrual of a claim until the plaintiff knew or
should have known the facts necessary to establish her cause of action, such as the fact
that a surgeon left a sponge in the plaintiff’s abdomen after an operation. See Alexander
v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). But even if the discovery rule
applies to her § 1983 claim, Plaintiff knew long before she filed suit all the facts
1
The Restatement defines the tort as follows:
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such a
contact, and
(b) an offensive contact with the person of the other directly or
indirectly results.
Restatement (Second) of Torts § 18(1).
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necessary to sue and recover damages. Although she may not have known how harmful
Ms. Shaw’s abuse was, “[t]he cause of action accrues even though the full extent of the
injury is not then known or predictable.” Wallace, 549 U.S. at 391 (internal quotation
marks omitted). “Were it otherwise,” explained the Supreme Court, “the statute would
begin to run only after a plaintiff became satisfied that he had been harmed enough,
placing the supposed statute of repose in the sole hands of the party seeking relief.” Id.
Moreover, Plaintiff has admitted that she knew from the outset that Ms. Shaw had
abused her and caused nontrivial, indeed significant, injury. Plaintiff’s complaint alleges:
14. Eventually, Amber Shaw manipulated Plaintiff into performing
cunnilingus on her although Plaintiff would try to get out of having to
perform cunnilingus on her coach by feigning sickness.
15. Amber Shaw told Plaintiff not to tell anyone so she would not get in
trouble.
....
17. Plaintiff was too afraid to disclose to anyone that she was being
sexually abused by her female coach.
18. Plaintiff was afraid to report the sexual abuse because she feared
being bullied by her peers at a [sic] school for engaging in homosexual
sexual acts with her female coach.
19. Plaintiff wanted to kill herself as she did not see a way out.
20. Plaintiff was afraid to disclose that she was being sexually abused by
her female basketball coach as she feared homophobic retaliation by
teachers and other coaches and she needed good school and community
referrals for college.
....
24. Plaintiff hated every minute of the sexual encounters with her coach
Amber Shaw.
25. Plaintiff did not want to disappoint her coach and feared reporting
her coach.
Aplt. App., Vol. I at 11–12. Thus, Plaintiff’s § 1983 claim accrued no later than early
2007.
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The same is true of her Title IX claim. Plaintiff has not suggested any reason why
her Title IX claim accrued at a different time from her § 1983 claim, and we see none.
As noted above, the general rule is that accrual occurs “when the plaintiff can file suit
and obtain relief,” Wallace, 549 U.S. at 388 (internal quotation marks omitted); and we
know of no reason why Plaintiff could not have brought a Title IX claim as soon as she
brought one under § 1983.
Because Plaintiff did not file suit until 2012, her federal claims are untimely and
were properly dismissed.
III. MOTION TO REMAND STATE CLAIMS TO STATE COURT
Plaintiff argues that the district court erred when it denied her motion to remand
her state claims back to the state court instead of dismissing them without prejudice. She
complains that if she refiles her state-law claims in state court, they will now be barred by
statutes of limitations. She is wrong. The problem she anticipates has been alleviated by
28 U.S.C. § 1367(d).
Here, the district court had federal-question jurisdiction under 28 U.S.C. § 1331over the § 1983 and Title IX claims. The court could then exercise supplemental
jurisdiction under § 1367(a) over Plaintiff’s state-law claims because they “form part of
the same case or controversy.” 28 U.S.C. § 1367(a). Once the federal-law claims were
dismissed, however, the court properly acted under § 1367(c) in declining further
supplemental jurisdiction over the state-law claims. See id. § 1367(c) (court “may
decline to exercise supplemental jurisdiction over a claim under [§ 1367](a) if . . . the
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district court has dismissed all claims over which it has original jurisdiction”). In that
event, § 1367(d) provides: “The period of limitations for any claim asserted under
subsection (a) . . . shall be tolled while the claim is pending and for a period of 30 days
after it is dismissed unless State law provides for a longer tolling period.” Thus, Plaintiff
has at least 30 days after dismissal of the state-law claims to bring suit in state court
(assuming that the claim was originally timely filed). State courts have apparently agreed
that tolling under § 1367(d) continues until any federal appeal is complete. See, e.g.,
Turner v. Kight, 957 A.2d 984, 993‒97 (Md. 2008); Okoro v. City of Oakland, 142 Cal.
App. 4th 306, 312‒13 (Cal. Ct. App. 2006); Huang v. Ziko, 511 S.E.2d 305, 308 (N.C.
Ct. App. 1999). We are confident that the New Mexico courts would follow suit. The
district court did not abuse its discretion by dismissing the state-law claims.
IV. MOTION TO AMEND
Plaintiff argues that the district court erred when it denied her motion to amend the
complaint on the ground that adding the new claims would be futile. See Anderson v.
Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007) (a district court may deny a motion to
amend a complaint if the amendment would be futile and “[a] proposed amendment is
futile if the complaint, as amended, would be subject to dismissal” (internal quotation
marks omitted)). Her opening brief on appeal, however, presents no argument why her
new federal claims would not be time barred even if the federal claims in her original
complaint were so barred. Plaintiff does make such an argument in her reply brief. But
arguments for reversal must be presented in the opening brief to be preserved. See
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Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). And it would be futile to
proceed with any new state-law claims if they would be dismissed (without prejudice)
anyway once the federal claims were dismissed.
V. CONCLUSION
We AFFIRM the district court’s grant of summary judgment, the district court’s
dismissal without prejudice of the state-law claims, and the district court’s denial of
Plaintiff’s motion to amend her complaint. We also DENY Plaintiff’s request that we
award costs and attorney fees.
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