Doreen Kirkendoll v. Margaret Bruemmer ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3810
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Doreen Kirkendoll, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Margaret Bruemmer, Trustee of the * District of Missouri.
Allis-Chalmers Product Liability *
Trust; John T. Grigsby, Trustee of * [PUBLISHED]
the Allis-Chalmers Reorganization *
Trust, *
*
Appellees. *
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Submitted: April 15, 2002
Filed: April 23, 2002
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Before HANSEN, Chief Judge, McMILLIAN, and FAGG, Circuit Judges.
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PER CURIAM.
Doreen Kirkendoll appeals the district court’s* dismissal of the wrongful death
claim she filed against the trustees of the Allis-Chalmers Product Liability Trust.
*
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Kirkendoll initially filed the wrongful death claim in March 1999. On June 3, 1999,
Kirkendoll filed a voluntary dismissal without prejudice, and the dismissal took effect
on that date. Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990).
The wrongful death claim was subject to a one-year statute of limitations for
refiling. Mo. Rev. Stat. § 537.100 (2000). Kirkendoll refiled her claim more than
one year after the voluntary dismissal was entered, but less than a year after the court
recognized the voluntary dismissal. Contrary to Kirkendoll’s view, the district court’s
later order formalizing the voluntary dismissal does not alter the measuring date for
the statue of limitations. See Safeguard, 907 F.2d at 863. Having reviewed the
parties’ briefs and the record de novo, Trimble v. Asarco, Inc., 232 F.3d 946, 960 (8th
Cir. 2000), we conclude the district court properly held Kirkendoll’s refiled claim was
time-barred.
Kirkendoll also argues the statute of limitations was tolled by the defendant’s
absence from Missouri. We decline to reach this claim because it was not raised in
the district court. Terry B. v. Gilkey, 229 F.3d 680, 682 (8th Cir. 2000). Missouri
caselaw suggests our outcome would not differ even if we did consider this claim on
its merits, however. See, e.g., Dupree v. Zenith Goldline Pharm., Inc., 63 S.W.3d
220, 221-22 (Mo. 2002).
We thus affirm the judgment of the district court. See 8th Cir. R. 47(B).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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