Richter v. Nelson

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

NATHAN D. RICHTER, Administrator

of the Estate of XANDER CAGE

HARRIS-BRUNTMYER,

Plaintiff,

v. 4:20-cv-00167-CRK-CDL

TRACY NELSON, ET AL.,

Defendants.

OPINION AND ORDER

Before the Court is a Motion to Reconsider made pursuant to Federal Rules of

Civil Procedure 59 and 60, filed by Plaintiff Nathan D. Richter (“Plaintiff”), as

administrator of the Estate of Xander Cage Harris-Bruntmyer (“Xander”). See

generally Pl.’s Mot. Reconsider, New Trial, & Alter/Am. J. Or Relief from J. Of The

Court’s J. Entered Mar. 28, 2024, Apr. 24, 2024, ECF No. 110 (“Pl. Mot.”). Plaintiff

seeks reconsideration of this Court’s March 28, 2024, order. See Opinion & Order,

Mar. 28, 2024 , ECF No. 103 (“Second Dismissal Order”); Richter v. Nelson, No. 4:20-

cv-00167-CRK-CDL, 2024 WL 1337358, at *6 (N.D. Okla. Mar. 28, 2024). For the

reasons that follow, Plaintiff’s motion for reconsideration is denied.

BACKGROUND

The Court presumes familiarity with the facts of this case as set forth in this

Court’s prior opinion granting in part and remanding in part Defendants’ Motion to

Dismiss, see Second Dismissal Order at 2–8, and thus recounts only those pertinent

to the motion currently at issue. This matter concerns the June 17, 2017, death of

Xander, at the hands of his foster mother Tracy Nelson (“Nelson”) while he was in

the custody of Anissa Bedard (“Bedard”) and Nelson (the “Nelson home”). Third Am.

Compl. at ¶¶ 4–8, Nov. 1, 2023, ECF No. 78 (“TAC”).

Initially, Plaintiff filed a wrongful death action on behalf of Xander’s Estate

against Nelson and the State of Oklahoma on behalf of the Oklahoma Department of

Human Services (“OKDHS”) on April 18, 2019, in the District Court of Washington

County in the State of Oklahoma (“Oklahoma State Court”). Petition, Richter v.

Nelson, Case No. CJ-2019-96 (Dist. Ct. Wash. Cnty. Okla. Apr. 18, 2019), ECF No.

96-6 (“First Action”). On July 15, 2019, Plaintiff voluntarily dismissed the case

against the State of Oklahoma on behalf of OKDHS without prejudice, leaving only

Defendants Nelson and Bedard. Not. Dismissal Without Prejudice, Richter v. Nelson,

Case No. CJ-2019-96 (Dist. Ct. Wash. Cnty. Okla. July 15, 2019). The two remaining

defendants in the First Action were voluntarily dismissed by Plaintiff on December

20, 2019. On that same day, Plaintiff filed a new case for the wrongful death of

Xander in Oklahoma State Court against different defendants, namely Nelson,

Bedard, Defendants Robin Hatfield (“Hatfield”), Sheila Lowery (“Lowery”), Jessica

Pitts (“Pitts”) and other individuals; ultimately a total of 48 defendants were named.

Petition, Richter v. Nelson, Case No. 2019-281 (Dec. 20, 2019), ECF No. 96-7; see also

ECF No. 2-2, (“Second Action”). OKDHS was not named in the Second Action.

On April 27, 2020, Plaintiff’s Second Action was removed to this Court. Notice

of Removal at 2, Apr. 27, 2020, ECF No. 2 (“Removal Notice”). On May 4, 2020,

Defendants Lesli Blazer, Natalie Clark, Hatfield, and Lowery filed a motion to

dismiss. Mot. Dismiss, May 4, 2020, ECF No. 6. On June 9, 2020, Plaintiff amended

his complaint, adding Holt, Raney Baldwin, and John Does 1–10 as new defendants

to the case and thus rendering the May 4, 2020, motion to dismiss as moot. Pl.’s First

Am. Compl. at 1–18, June 9, 2020, ECF No. 12 (“FAC”); Minute Order, Sept. 23, 2020,

ECF No. 23. On July 15, 2020, Hatfield, Pitts, Lowery and other named defendants

filed a motion to dismiss the FAC. Mot. Dismiss FAC at 11, July 15, 2020, ECF No.

19 (“Mot. Dismiss FAC”).

On January 20, 2021, Plaintiff moved to amend the FAC, seeking to add

OKDHS as a party to the action. Exhibit 1: Sec. Am. Compl., Jan 20, 2021, ECF No.

26-1 (“SAC”); Opposed Mot. to Amend. First Am. Compl., Jan. 20, 2021, ECF No. 26

(“Mot. SAC”). Hatfield, Pitts, Lowery, and other named defendants opposed the

amendment, arguing that OKDHS could not be added as a party because it was

immune from suit under the Eleventh Amendment to the United States Constitution.

Resp. in Opp’n to Mot. to [Mot. SAC], Feb. 1, 2021, ECF No. 27 (“Opp’n Mot. SAC”).

On August 4, 2022, the Court denied Plaintiff’s motion to amend and rejected the

SAC for futility. Opinion & Order [re Mot. SAC], Aug. 4, 2022, ECF No. 36; Richter

v. Nelson, No. 4:20-cv-00167-CRK-CDL, 2022 WL 3104974 (N.D. Okla. Aug. 4, 2022).

On September 30, 2022, the Court granted the motion to dismiss the FAC with

respect to all defendants except Nelson, Bedard, and Hatfield, because the complaint

failed to allege sufficient facts demonstrating Plaintiff was entitled to relief. Opinion

& Order at 31–32, Sept. 15, 2022, ECF No. 41 (“First Dismissal Order”). In the First

Dismissal Order, despite dismissing all defendants except Hatfield, Nelson and

Bedard, the Court ruled that Plaintiff’s claims were timely because the Second Action

related back to Plaintiff’s First Action. Id. at 27–31. On September 8, 2023, Plaintiff

again moved to amend his complaint to add previously dismissed defendants Pitts,

Lowery, and Holt, which was granted by the Court. See Pl. Opp’d Mot. Am. Compl.

at 1, Sept. 8, 2023, ECF No. 66; Opinion & Order [re on Pl. Opp’d Mot. Am. Compl.]

at 10, Oct. 30, 2023, ECF No. 77; Richter v. Nelson, 4:20-cv-00167-CRK-CDL, 2023

WL 7128459, at *5 (N.D. Okla. Oct. 30, 2023).

On November 1, 2023, Plaintiff filed his TAC. See generally TAC. On

December 5, 2023, Hatfield, Holt, Pitts, Lowery filed their motions to dismiss the

TAC, see generally Def. Hatfield’s Mot. Dismiss [TAC], Dec. 5, 2023, ECF No. 82; Def.

Holt’s Mot. Dismiss [TAC], Dec. 5, 2023, ECF No. 83; Def. Pitts’ Mot. Dismiss [TAC],

Dec. 5, 2023, ECF No. 84; Def. Lowery’s Mot. Dismiss [TAC], Dec. 5, 2023, ECF No.

85, which were fully briefed on February 12, 2024. See Pl.’s Am. Combined Resp. &

Obj. to [Mot. Dismiss TAC] at 1, Jan. 29, 2024, ECF No. 96; [Hatfield’s] Reply [Pl.’s

Am. Combined Resp. & Obj.] at 1, Feb 12, 2024, ECF No. 97; [Pitts’] Reply [Pl.’s Am.

Combined Resp. & Obj.] at 1, Feb 12, 2024, ECF No. 98; [Holt’s] Reply [Pl.’s Am.

Combined Resp. & Obj.] at 1, Feb 12, 2024, ECF No. 99; [Lowery’s] Reply [Pl.’s Am.

Combined Resp. & Obj.] at 1, Feb 12, 2024, ECF No. 100.

On March 28, 2024, the Court granted Defendants’ motion with respect to

Count I and remanded the remaining claims to the District Court of Washington

County in the State of Oklahoma. See generally Second Dismissal Order. In its

Second Dismissal Order, the Court reconsidered its interlocutory First Dismissal

Order which ruled that Plaintiff’s Second Action related back to the First Action. Id.

at 11–18. On April 24, 2024, Plaintiff filed the instant motion, which was fully briefed

on May 15, 2024. See generally Pl. Mot.; [Defs.’] Resp. & Obj. [Pl. Mot.], May 15,

2024, ECF No. 113 (“Defs. Resp.”). In his motion, Plaintiff now seeks redress

pursuant to Federal Rules of Civil Procedure 59 and 60. Pl. Mot. at 1.

DISCUSSION

Plaintiff argues that the Court’s Second Dismissal Order is in error and seeks

an order altering or amending that decision pursuant to Federal Rule of Civil

Procedure 59(e).1 Plaintiff raises numerous arguments as to why the Second

Dismissal Order must be altered, many of which implicate the statute of limitations

and relation back under Rule 15. See Pl. Mot. at 9–30. Defendants oppose Plaintiff’s

motion. See Defs. Resp. at 1–14. For the following reasons, Plaintiff’s motion is

denied.

I. Relief Provided by Federal Rule of Civil Procedure 59(e)

Within 28 days of entry of judgment a party may move to ask the court to alter

or amend a judgment. Rule 59 of the Federal Rules of Civil Procedure provides in

relevant part:

1 Plaintiff also invokes Rule 60(b) as a basis for his motion. See Pl. Mot. at 11;

however, although Rule 59 and Rule 60 overlap, they are distinct. A motion

requesting that the Court reconsider the judgment brought within 28 days are made

pursuant to Rule 59. Fed. R. Civ. P. 59(e). A motion made after 28 days seeks relief

from judgment and is subject to the more limited criteria in Rule 60. See Russell v.

Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995).

A motion to alter or amend a judgment must be filed no later than 28

days after the entry of the judgment.

The Tenth Circuit has explained that grounds for a motion to alter or amend a

judgment from the Court under Rule 59(e) include “(1) an intervening change in the

controlling law, (2) new evidence previously unavailable, and (3) the need to correct

clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000). A Rule 59(e) motion is an inappropriate means to

reargue issues previously addressed by the Court when the motion simply advances

new arguments or supports facts that were available at the time of the initial motion.

Lopez v. Delta Int’l Mach. Corp., 312 F. Supp. 3d 1115, 1139–40 (D.N.M. 2018) (citing

Servants of the Paraclete, 204 F.3d at 1012), aff'd sub nom. Lopez v. Stanley Black &

Decker, Inc., 764 F. App’x 703 (10th Cir. 2019). The Court has broad discretion in

deciding whether to grant a motion to reconsider. See Hancock v. City of Oklahoma

City, 857 F.2d 1394, 1395 (10th Cir. 1988); Phelps v. Hamilton, 122 F.3d 1309, 1324

(10th Cir. 1997); Shannon v. Pac. Rail Servs., 70 F.Supp.2d 1243, 1251 (D. Kan. 1999).

Such discretion notwithstanding, granting relief to a party where no basis for relief

exists constitutes an abuse of discretion. Cashner v. Freedom Stores, Inc., 98 F.3d

572, 580 (10th Cir. 1996). The path to relief under Rule 59(e) is an inherently narrow

one, as “[a] Rule 59(e) motion to alter or amend the judgment should be granted only

to correct manifest errors of law or to present newly discovered evidence.” Miller v.

State of Kansas Highway Patrol, 383 F. App’x 813, 815 (10th Cir. 2010) (quoting

Phelps, 122 F.3d at 1324).

II. Plaintiff’s Claimed Errors

Plaintiff seeks reconsideration of the Court’s judgment because: (1) statutes of

limitations defenses involve questions of fact; (2) Plaintiff’s claims relate back to an

earlier action; (3) Plaintiff’s claims survive under the Oklahoma savings statute,

Okla. Stat. tit. 12 § 100, and the doctrines of the discovery rule, equitable tolling, and

the law of the case; (4) Defendants failed to appropriately consolidate their motions

to dismiss; (5) Federal Rule of Civil Procedure 11 prevented Plaintiff from naming

the appropriate defendants at an earlier stage of the litigation; (9) a hypertechnical

reading of the pleading code is unjust; and (10) questions of fact are not suitable for

motions to dismiss. See Pl. Mot. at 9–30.

A. Statute of Limitations and Questions of Fact

Plaintiff first argues that the application of statute of limitations is a question

of fact and therefore the Court erred by ruling on a statute of limitations defense

while deciding a motion to dismiss. Pl. Mot. at 12. Plaintiff’s contention restates an

argument previously addressed by the Court, and, in any event, fails to persuade.

Plaintiff is correct that the statute of limitations is an affirmative defense that

is ordinarily raised and addressed in pleadings rather than on motion. Wyo-Ben Inc.

v. Haaland, 63 F.4th 857, 866 (10th Cir. 2023) (citing Herrera v. City of Espanola, 32

F.4th 980, 991 (10th Cir. 2022)). Nonetheless, “[a] statute of limitations defense ‘may

be appropriately resolved on a Rule 12(b) motion when the dates given in the

complaint make clear that the right sued upon has been extinguished.’” Sierra Club

v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (quoting Lee v. Rocky

Mountain UFCW Unions & Emp’rs Tr. Pension Plan, 13 F.3d 405, at *1 (10th Cir.

1993) (Table)) (internal alterations omitted); see also Aldrich v. McCulloch Props.,

Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980); Am. Mech. Sols., L.L.C. v. Northland

Process Piping, Inc., 184 F. Supp. 3d 1030, 1049 (D.N.M. 2016).

Here, as previously explained “the federal claims accrued on June 17, 2017,

the day that Xander died.” Second Dismissal Order at 13; 2024 WL 1337358, at *6.

Plaintiff had a “complete and present cause of action” that he could initiate in the

courts. See Robert L. Kroenlein Tr. ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1275

(10th Cir. 2014) (citing Gabelli v. S.E.C., 568 U.S. 442, 450 (2013)); see also Huff v.

Fibreboard Corp., 836 F.2d 473, 475 (10th Cir. 1987) (construing Okla. Stat. tit. 12 §

1053(A) to find that a wrongful death action accrues on the date of the death of the

injured party).2 Plaintiff filed this action in Oklahoma State Court on December 20,

2019, which was removed to this Court on April 27, 2020. See Removal Notice at 2;

First Dismissal Order at 6. Thus, the face of the complaint reveals that Plaintiff’s

action when filed was beyond the statute of limitations and thus dismissal was

appropriate. See Sierra Club, 816 F.3d at 671.

2 The Court further explained “[a]lthough more information came to light concerning

the circumstances of Xander’s death after June 17, 2017, there need not be ‘conclusive

evidence of the cause of an injury in order to trigger the statute of limitations.’” See

Second Dismissal Order at 13 (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1215

(10th Cir. 2004)). Rather, Plaintiff was put on reasonable notice that wrongful

conduct caused Xander’s death based on the allegations on the face of the complaint.

See id.

B. Relation Back

Plaintiff contends that the TAC is timely because it relates back to the First

Action. Pl. Mot. at 15–18. Plaintiff argues that the Court erred in determining that

Plaintiff’s action here did not relate back to the filing of a different lawsuit against

different defendants which was voluntarily dismissed by Plaintiff.3 Id. Although the

Court had previously ruled that the TAC related back to the First Action, it sua

sponte reconsidered its earlier ruling and reversed itself. Second Dismissal Order at

14–18. Plaintiff argues here that the Court’s First Dismissal Order concluding that

the Second Action relates back to the First Action was consistent with Krupski v.

Costa Crociere S. p. A., 560 U.S. 538, 548 (2010) and therefore was correct. Pl. Mot.

at 15–18. The Plaintiff’s argument fails to persuade.

Relation back under Rule 15(c), by its terms, applies to amendments—not

newly filed actions. See Fed. R. Civ. P. 15(c) (“Relation Back of Amendments. (1)

When an Amendment Relates Back. An amendment to a pleading relates back to the

date of the original pleading when . . .”). “A proposed amendment cannot ‘relate back’

to a dismissed complaint.” Wandschneider v. Tuesday Morning, Inc., No. 08-CV-522-

TCK-FHM, 2011 WL 3319562, at *5 (N.D. Okla. Aug. 1, 2011). A complaint

voluntarily dismissed without prejudice “leaves the parties as though the action had

3 The First Action named the state of Oklahoma on behalf of OKDHS and Nelson.

See generally First Action. The Second Action named Nelson, Bedard and multiple

employees from OKDHS. See generally Second Action. Although Nelson was named

in both the First Action and the Second Action, the only claims against Nelson are

state law claims and those have been remanded to Oklahoma State Court. See

Second Dismissal Order at 26.

never been brought.” Barone v. United Airlines, Inc., 355 F. App’x 169, 179 n.6 (10th

Cir. 2009) (citing Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir.

1991), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 114 (2002)); Burnside v. Allergan PLC, No. 19-CV-01054-KMT, 2020 WL

1452272, at *1 (D. Colo. Mar. 25, 2020); see also Netwig v. Georgia Pac. Corp., 375

F.3d 1009, 1011 (10th Cir. 2004). Although case law on whether a new action can

relate back to a voluntarily dismissed action is scant, Tenth Circuit precedent

suggests that it cannot. See Calderon v. Kan. Dep’t of Soc. & Rehabilitation Servs.,

181 F.3d 1180, 1185 (10th Cir. 1999) (rejecting amendment of a dismissed complaint).

Plaintiff correctly notes that this Court had already ruled that Plaintiff’s

Second Action relates back to the First Action. Pl. Mot. at 17 (citing First Dismissal

Order at 29–30). In the First Dismissal Order, the Court specifically stated:

Here, Plaintiff’s complaint is timely because, although it was filed

beyond the applicable two-year limitations period, the complaint relates

back to Plaintiff’s earlier filed wrongful death complaint. Xander died

on June 17, 2017. On April 18, 2019, Plaintiff commenced an action

against OKDHS as the defendant but alleged that “DHS employees”

carried out conduct resulting in Xander’s death. The []Defendants knew

or should have known they would be added to the lawsuit but for a

mistake in identity, and the complaint serves as constructive notice.

First Dismissal Order at 28 (internal citations omitted). Nonetheless, the Court

subsequently recognized its mistake. See Second Dismissal Order at 14. Specifically,

Plaintiff did not contend that the SAC (and subsequently the TAC) related back to an

earlier version of his complaint; rather, he sought to have his Second Action relate

back to the voluntarily-dismissed First Action, filed in state court against different

defendants. The Court, in its Second Dismissal Order, stated with respect to the First

Dismissal Order: “[t]his ruling was incorrect, and the Court corrects it here.” Id.

Although Plaintiff would have preferred that the Court did not reconsider its

interlocutory order, the Court has the authority to modify and correct its previous

decisions in error, and it may exercise this authority sua sponte. See Fed. R. Civ. P.

54(b) (“any order or other decision, however designated, that adjudicates fewer than

all the claims or the rights and liabilities of fewer than all the parties does not end

the action as to any of the claims or parties and may be revised at any time before

the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities”); Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007) (“district

courts generally remain free to reconsider their earlier interlocutory orders”); Beltran

v. InterExchange, Inc., No. 14-CV-03074-CMA-CBS, 2018 WL 1704633, at *2 (D.

Colo. Apr. 9, 2018) (“a district court may reconsider its own interlocutory order, sua

sponte or on motion, at any time prior to the entry of final judgment pursuant to

[Rule] 54(b)”); see also Oracle Oil, LLC v. EPI Consultants, 391 F. Supp. 3d 634, 636

n.3 (E.D. La. 2019) (same).

Plaintiff invokes Cardenas v. Ever Fresh Farms Transportation, Inc., and its

citation to Krupski, to argue that here he should not be barred by the statute of

limitations, similar to the plaintiff in Cardenas. See Pl. Mot. at 15–16 (first citing

No. 23-CV-49-GKF-CDL, 2023 WL 7224170, at *1 (N.D. Okla. Nov. 2, 2023); and then

citing 560 U.S. at 541). However, in Cardenas, the court confronted a motion to

amend a complaint to change the name of the defendant. See Cardenas, 2023 WL

7224170, at *1. The Court explained that under certain circumstances, Rule 15(c)(1)

allows for the amendment of a complaint to change the name of a party. Id. If the

requirements of the rule are met, the amended complaint may relate back to the

unamended complaint. Id. at 2. But here, Plaintiff does not seek to amend a

complaint, instead seeking to have the entirely distinct Second Action relate back to

the voluntarily dismissed First Action. Because the timely complaint was voluntarily

dismissed by Plaintiff in Oklahoma State Court, it cannot serve as a basis for relation

back under the case law Plaintiff cites. Therefore, Plaintiff’s argument is rejected.

C. Oklahoma Savings Statute

Plaintiff asks the Court to reconsider its Second Dismissal Order because the

Oklahoma savings statute should be liberally applied and would render this action

timely. Pl. Mot. at 19. The Oklahoma savings statute does not render this action

timely.

The Oklahoma savings statute provides in relevant part:

If any action is commenced within due time, and a judgment thereon for

the plaintiff is reversed, or if the plaintiff fail in such action otherwise

than upon the merits, the plaintiff, or, if he should die, and the cause of

action survive, his representatives may commence a new action within

one (1) year after the reversal or failure although the time limit for

commencing the action shall have expired before the new action is filed.

Okla. Stat. tit. 12 § 100. As explained in the Second Dismissal Order, the savings

statute is inapplicable. Second Dismissal Order at 17–18; see also Morris v. City of

Sapulpa, No. 10-CV-0376-CVE-TLW, 2010 WL 3733527, at *4–5 (N.D. Okla. Sept. 17,

2010); Brown, 926 F.2d at 962. In Brown, the Tenth Circuit ruled that the savings

statute would not operate against parties not named in the prior suit. Id. at 962.

Further, where a prior action names an entire organization, as Plaintiff did in the

first suit, the Court will not subject a second action naming individuals to the savings

statute. See Morris, 2010 WL 333527, at *5. In Morris, the court specifically

explained that naming the whole of the entity as a defendant does not justify adding

individual members of that entity at a later point in time. Morris, 2010 WL 333527,

at *5 (citing Brown, 926 F.2d at 962). Therefore, as this Court previously determined,

the Oklahoma savings statute cannot help Plaintiff here:

The complaint in the Second Action named individuals whose names

were not included in the pleadings of the First Action. Indeed, Plaintiff

named the entire OKDHS as a single entity in the First Action, and then

named individual OKDHS workers suspected of involvement in

Xander’s death in the Second Action. Consistent with [] Morris and

Brown, the inclusion of a broad entity as a defendant in an early

proceeding will not provide a later justification for adding individual

members of that body. . . . Because the Second Action does not relate

back to the First Action, the Second Action is untimely unless the

statute of limitations was tolled.

Second Dismissal Order at 17 (internal quotations and citations omitted).

Plaintiff’s attempts to characterize Nusbaum v. Knobbe to bolster his claim

fails to persuade. See Pl. Mot. at 19–20 (citing 2001 OK CIV APP 52, ¶ 11, 23 P.3d

302, 305). As Plaintiff acknowledges, Nusbaum references Clark v. Phillips

Petroleum Co., where the state court allowed the savings statue to extend the statute

of limitations because the defendants were a corporation and a successor corporation.

See 2001 OK CIV APP 52, at ¶ 13 (citing 1984 OK CIV APP 6 at ¶ 10, 677 P.2d 1092,

1094). The court in Nusbaum explained that the identity of interest between the first

corporation and the successor corporation in Clark permitted extension of the saving

statute because the plaintiff’s suit alleged “substantially the same cause of action and

feature[d] substantially the same parties as the first suit.” Id. Nussbaum contrasted

the scenario in Clark to the facts of Brown, where the two actions did not involve

identity of interest because:

[t]he plaintiff voluntarily dismissed her action and filed another action

within one year against the school district and individual school board

members. The court of appeals held that the refiled action, as it related

to the school district, “clearly falls within the ambit of section 100 and

is therefore not barred by the statute of limitations.” However, with

regard to the school board members, the court held: “Because the board

members were not named in the prior action, the saving statute does not

apply to the suit against them and it is therefore untimely.”

Id. at ¶ 8. Here, however, the TAC does not involve OKDHS, the defendant in

Plaintiff’s First Action. Rather, and similar to Brown, this suit involves parties not

named in the First Action, having no identity of interest with OKDHS in the First

Action, therefore rendering the savings statute inapplicable.

D. The Discovery Rule

Plaintiff asserts that his claim is preserved by the discovery rule recognized by

Oklahoma state courts because information concerning the nature and perpetrators

of Xander’s abuse was unknowable until the preliminary hearings stage. Pl. Mot. at

21–22. As it did previously, the Court rejects Plaintiff’s position.

As a threshold matter, “federal law controls issues related to when federal

causes of action accrue.” Alexander, 382 F.3d at 1215 (citing Baker v. Board of

Regents of the State of Kansas, 991 F.2d 628, 632 (10th Cir. 1993)). In general, under

the federal discovery rule, claims accrue and “[t]he statute of limitations begins to

run when the plaintiff knows or has reason to know of the existence and cause of the

injury which is the basis of his action.” Indus. Constructors Corp. v. U.S. Bureau of

Reclamation, 15 F.3d 963, 969 (10th Cir. 1994). Most specifically, “‘[a] civil rights

action accrues when facts that would support a cause of action are or should be

apparent.’” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). Likewise, in

Oklahoma, “the limitations period does not begin to run until the date the plaintiff

knew or should have known of the injury.” The Samuel Roberts Noble Found., Inc.

v. Vick, 1992 OK 140, ¶ 8, 840 P.2d 619, 624; see also Erikson v. Farmers Group, Inc.,

151 F. App’x. 672, 676 (10th Cir. 2005) (citing Smith v. Baptist Found. of Okla., 2002

OK 57, 50 P.3d 1132, 1137). Once a plaintiff has sufficient knowledge to know that a

cause of action exists, the statute of limitations begins to run. Samuel Roberts Noble

Found., Inc., 1992 OK 140, ¶ 29, 840 P.2d at 626.

Here, the discovery rule does not apply to Plaintiff’s case. As the Court has

already addressed:

the federal claims accrued on June 17, 2017, the day that Xander died.

The TAC reveals that on that date Plaintiff had a “complete and present

cause of action” that he could initiate in the courts. Although more

information came to light concerning the circumstances of Xander's

death after June 17, 2017, there need not be “conclusive evidence of the

cause of an injury in order to trigger the statute of limitations.” Rather,

Plaintiff was put on reasonable notice that wrongful conduct caused

Xander's death based on the allegations on the face of the complaint.

Second Dismissal Order at 13 (internal citations omitted). Plaintiff argues that he

faced difficulty obtaining certain information for the purposes of his complaints at

the state and federal levels:

Xander died on June 17, 2017. At that time the Plaintiff may have

suspected foul play (as any person naturally would since he was an

infant) but never knew with any sense of certainty he was murdered.

This was not known until the December 5, 2017 medical examiner

report—almost six months later. Even then, the Plaintiff had no idea

who all pertinent individual defendants were whose actions led to

Xander’s death, what their jobs were, what they did or failed to do, or

otherwise violated his constitutional rights or tortiously inflicted injury.

These facts did not become publicly known until preliminary hearings

took place in Nelson’s criminal cases in March/April 2018, and more

later in September 2018, during Nelson’s criminal trial. This included

the “alarm bells” that OKDHS and persons such as [Defendants

Hatfield, Lowery, Pitts, and Holt] regarding the abuse history of the

Foster Parents not being learned until the preliminary hearing of

another criminal case against Nelson relating to John Doe.

Pl. Mot. at 21–22 (internal citations omitted). That more information became

gradually available to Plaintiff afterward provides no basis to toll the statute of

limitations under the discovery rule. That rule is intended to preserve one’s claim

when one is unaware of the harm caused; it is not designed to indefinitely delay the

limitations clock while the plaintiff collects further evidence and builds the strongest

possible case. See Alexander, 382 F.3d at 1217 (“the Oklahoma discovery rule tolls

the statute of limitations until an injured party knows of, or in the exercise of

reasonable diligence, should have known of or discovered the injury, and resulting

cause of action” (internal quotations omitted)). Accordingly, Plaintiff’s argument

lacks merit and is thus rejected.

E. Equitable Tolling

Plaintiff argues that equitable tolling principles, more specifically estoppel and

waiver, bar dismissal of this case.4 Pl. Mot. at 22–23. Plaintiff argues that

Defendants’ actions lulled him into a position of reliance such that Defendants should

be prevented from invoking statute of limitations and further Defendants have

4 Relatedly, Plaintiff’s invocation of the Oklahoma discovery rule is an equitable

tolling argument, as federal law does not contain “‘a body of tolling rules applicable

to actions brought in federal court under § 1983.’” Alexander, 382 F.3d at 1217

(quoting Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980)).

waived any arguments concerning the statute of limitations. Id. at 22–24. Both

arguments are without merit.

As this Court has previously explained:

Generally, to be entitled to equitable tolling, a plaintiff must establish

two elements: (1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way. The Tenth

Circuit interpreting Oklahoma state law, and in particular the

Oklahoma discovery rule, has determined that equitable tolling requires

false, fraudulent, or misleading conduct before it may be applied to a

claim. A plaintiff can demonstrate the requisite conduct by alleging

facts from which a jury could infer that he or she “has been lulled into

inaction” such that they could not have discovered the claim in the

exercise of reasonable diligence.

Second Dismissal Order at 19 (internal quotations, citations, and footnotes omitted).

Defendants have consistently asserted that the suit is untimely. See e.g., Mot.

Dismiss FAC at 11; Opp’n Mot. SAC at 4–5. Plaintiff points to no action that would

constitute a waiver of claims. Instead, Plaintiff points to paragraph 30 in the FAC,

where he pled, on information and belief, certain facts relating to this lawsuit. Pl.

Mot. at 23–24 (quoting FAC at ¶ 30). Plaintiff then cites to Defendant Hatfield’s

answer, which asserted that Hatfield was “without sufficient information to admit or

deny paragraph 30.” Id. at 24. It is unclear to the Court why plaintiff believes

Defendant Hatfield’s answer to this paragraph constitutes either waiver or estoppel.

As such, Plaintiff’s challenge to the Second Dismissal Order is unpersuasive and thus

rejected.

F. Law of the Case

Plaintiff contends that the Court’s correction of its order was a complete

reversal from its previous finding and thus fails to promote consistency or finality, in

conflict with the underpinnings of the doctrine known as “the law of the case.” Pl.

Mot. at 24–26. Plaintiff argues that the Court should maintain its previous error in

the interest of consistency, pursuant to the law of the case doctrine. Id. Plaintiff’s

argument is without merit.

The law of the case doctrine requires “that prior judicial decisions on rules of

law govern the same issues in subsequent phases of the same case.” Been, 495 F.3d

at 1224 (citing Homans v. City of Albuquerque, 366 F.3d 900, 904 (10th Cir. 2004)).

However, the Tenth Circuit has declined to apply the doctrine to rulings revised

before the entry of final judgment; thus, district courts are generally free to revise

earlier interlocutory orders. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th

Cir. 2011) (citing Been, 495 F.3d at 1225). Furthermore, the Tenth Circuit has

acknowledged circumstances in which departure from the law of the case doctrine is

permitted. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)

(recognizing that the law of the case doctrine is not “an inexorable command” but

rather “a rule of practice in the courts and not a limit on their power”). Indeed, the

law of the case doctrine is a flexible standard allowing departure from “an erroneous

prior ruling, as the underlying policy of the rule is one of efficiency, not restraint of

judicial power.” Been, 495 F.3d at 1225 (citing Prairie Band Potawatomi Nation v.

Wagnon, 476 F.3d 818, 823 (10th Cir. 2007)); Alvarez, 142 F.3d at 1247.

Here, the Court properly exercised its authority to rectify an error.5 The law

of the case doctrine does not apply to interlocutory orders. U.S. Smelting Ref. & Min.

Co., 339 U.S. at 198–99 (finding application of the law of the case doctrine requires a

final judgment); United States v. Bettenhausen, 499 F.2d 1223, 1230 (10th Cir. 1974)

(“The rule of the law of the case does not apply unless there is a final judgment that

decided the issue”); Gage v. Gen. Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986)

(“[The Law of the case doctrine] is a rule based on sound public policy that litigation

should come to an end, and is designed to bring about a quick resolution of disputes

by preventing continued re-argument of issues already decided” (internal citations

omitted)). The Court’s First Dismissal Order and ruling on relation back was an

interlocutory order, not a final determination. Thus, the doctrine is inapplicable.

Nonetheless, even if the original order was the law of the case, Plaintiff’s

argument would still fail. Indeed, although prior determinations should generally

govern subsequent phases of the same case, an exception exists to the rule that

permits the Court to deviate from the law underlying prior determinations when that

determination was made in error. See Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th

Cir. 2001) (stating law of the case doctrine does not apply when a court acts to correct

a prior decision found to be clearly erroneous); Alvarez, 142 F.3d at 1247; Been, 495

5 As explained previously, the Court possesses the authority to modify an

interlocutory order and may exercise this authority sua sponte. See Fed. R. Civ. P.

54(b). That the Court chose to rectify a previous decision in error does not trigger

application of the law of the case doctrine, as “nothing was finally decided” by the

Court’s previous decisions. See United States v. U.S. Smelting Ref. & Min. Co., 339

U.S. 186, 198 (1950).

F.3d at 122. Plaintiff’s argument pursuant to the law of the case doctrine is therefore

rejected.

G. Failure to Consolidate Defenses in Prior Motions to Dismiss

Plaintiff argues that Defendants should not be permitted to invoke the savings

statute defense in this case, and that the savings statute defense should be ultimately

disregarded by the Court. Pl. Mot. at 26–27. Plaintiff reasons that because in

response to his initial complaint, the named defendants failed to comply with Federal

Rule of Civil Procedure 12(g)(2) by raising the savings statute defense in their initial

motion to dismiss, and thus the defense is not presently available to the current

defendants. Id.

Plaintiff’s argument is without merit. As discussed, the savings statute

extends the statute of limitations by one year after a dismissal provided that the

dismissal was rendered without prejudice. Bodkin v. Coffeyville Res. Crude

Transportation, LLC, No. CIV-23-543-D, 2023 WL 5918313, at *1 (W.D. Okla. Sept.

11, 2023). Thus, the savings statute is a mechanism under Oklahoma law that can

be used in response to a claim that the statute of limitations has passed. See Eastom

v. City of Tulsa, 783 F.3d 1181, 1183 (10th Cir. 2015). However, the language of the

statute does not lend itself to an interpretation that requires a defendant to

definitively raise the statute as a defense. See generally Okla. Stat. tit. 12 § 100.

Nonetheless, Defendants did indeed assert a statute of limitations defense to the

Plaintiff’s claim. See Mot. Dismiss FAC at 1. Therefore, Plaintiff’s argument

regarding consolidation is without merit.

H. Federal Rule of Civil Procedure 11

Plaintiff seems to argue that Rule 11 curtailed his ability to name potential

defendants in the First Action because he lacked sufficient evidence, which would

potentially render the action frivolous in volitation of Rule 11. Pl. Mot. at 28.

Plaintiff urges the Court to consider this restraint when “determining what

information or allegations the Plaintiff did not plead to satisfy notice.” Id.

It is well established that “the central purpose of Rule 11 is to deter baseless

filings in district court . . . [and] any interpretation must give effect to the Rule’s

central goal of deterrence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393

(1990).6 However, compliance with Rule 11 does not relieve Plaintiff from filing his

6 Subsection (b) of Rule 11 provides:

(b) Representations to the Court. By presenting to the court a pleading,

written motion, or other paper--whether by signing, filing, submitting,

or later advocating it--an attorney or unrepresented party certifies that

to the best of the person's knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the cost

of litigation;

(2) the claims, defenses, and other legal contentions are

warranted by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law or for establishing

new law;

(3) the factual contentions have evidentiary support or, if

specifically so identified, will likely have evidentiary support

after a reasonable opportunity for further investigation or

discovery; and

(4) the denials of factual contentions are warranted on the

evidence or, if specifically so identified, are reasonably based on

belief or a lack of information.

Fed. R. Civ. P. 11(b).

action within the statute of limitations. Plaintiff’s Rule 11 argument merely restates

his argument concerning the discovery rule and is thus rejected.

I. Hypertechnicality

Plaintiff argues that the Court’s refusal to allow the Second Action to relate

back to an action which he voluntarily dismissed is a hypertechnical interpretation

and unjust application of the Federal Rules of Civil Procedure. Pl. Mot. 28–29.

Plaintiff cites cases in which the court exercised discretion in its application of the

Federal Rules of Civil Procedures: Navis v. Via Christi Reg'l Med. Ctr., No. CIV.A.

03-2568-CM, 2004 WL 1004827, at *1–2 (D. Kan. Apr. 20, 2004) (exercising its

discretion under Rule 4(m) to extended the time in which to serve defendants);

Hardin v. Manitowoc–Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982) (explaining

that under Rule 15(b), it is within the trial court’s discretion whether to permit

introduction of evidence or give instructions on issues beyond the scope of the pretrial

order); Webb v. Premiere Credit of N. Am., LLC, No. 12-CV-2001-JAR-KGS, 2012 WL

2359434, at *1 (D. Kan. June 20, 2012) (stating that although the plaintiffs did not

separately file a memorandum in support of their motion to amend, the court

exercised its discretion under the local rules to grant the plaintiffs’ motion to amend);

Am. Fid. & Cas. Co. v. All Am. Bus Lines, 190 F.2d 234, 236–37 (10th Cir. 1951)

(explaining that it was within the trial court’s discretionary power to authorize the

substitution of the plaintiff); Brown v. Ford Motor Co., 57 F. Supp. 825, 826 (E.D.

Mich. 1944) (exercising discretionary authority under Rule 1 to grant summary

judgment).

The cases cited by Plaintiff do nothing to strengthen his cause, as they merely

stand for the general proposition that the district court possesses discretion in its

application of the Federal Rules of Civil Procedure. However, in the instant case, the

Court lacks discretion because Rule 15 does not apply. As explained, Rule 15 applies

to amendments. U.S. ex rel. Koch v. Koch Indus., Inc., 188 F.R.D. 617, 627–28 (N.D.

Okla. 1999). The Tenth Circuit has ruled that

If a party seeks to amend a pleading following the court’s grant of a

motion to dismiss, the party must first move to reopen the case under

[Rule] 59(e) or 60(b) and then file a motion under [Rule] 15 for leave to

amend pursuant to the standards set out in [Rule] 7.

Calderon, 181 F.3d at 1185. The Court thus rejects Plaintiff’s argument.

J. Questions of fact Unsuitable for Motions

Finally, Plaintiff argues that “[t]o the extent that this Court found that

[Plaintiff] failed to raise any question of fact at the motion to dismiss stage, such is

not suited for a motion to dismiss and must be reconsidered.” Pl. Mot. at 30. Plaintiff

specifically takes issue with the Court’s finding that “Plaintiff’s allegations in the

TAC and his response fail to raise a question of fact as to the date the cause of action

accrued and the applicability of equitable tolling.” Id. (quoting Second Dismissal

Order at 20). Plaintiff’s argument here repackages his first argument, namely that

the statute of limitations is a question of fact and therefore the Court erred by

factoring the defense into the Second Dismissal Order. As previously stated,

however, “[a] statute of limitations defense may be appropriately resolved on a Rule

12(b) motion when the dates given in the complaint make clear that the right sued

upon has been extinguished.” Sierra Club, 816 F.3d at 671 (quoting Lee, 13 F.3d 405,

at *1) (internal quotation and alterations omitted). Thus, Plaintiff’s argument that

the Second Dismissal Order erroneously considered Defendants’ invocation of the

statute of limitations defense is rejected.

CONCLUSION

Plaintiff’s arguments pursuant to both Rule 59 and Rule 60 fail to establish a

basis for relief. For the foregoing reason, Plaintiff’s motion for reconsideration is

denied.

So Ordered.

/s/ Claire R. Kelly

Claire R. Kelly, Judge*

Dated: June 17, 2024

New York, New York

* Judge Claire R. Kelly, of the United States Court of International Trade, sitting by

designation.