                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    JUN 25 1999
                                 TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                          Clerk

JOHN DEAN AYON,

               Plaintiff - Appellant,

       v.                                             No. 98-1305
                                                 (D. Ct. No. 97-S-1936)
REVEREND MARSHALL GOURLEY;                             (D. Colo.)
ROMAN CATHOLIC ARCHDIOCESE OF
DENVER; MOST REVEREND CHARLES
J. CHAPUT, His Predecessors and
Successors, as Archbishop of the Roman
Catholic Archdiocese of Denver,

               Defendants - Appellees.

------------------------------

THE AMERICAN BAPTIST CHURCHES
OF THE ROCKY MOUNTAINS; THE
ASSOCIATION OF CHRISTIAN
SCHOOLS INTERNATIONAL; BAPTIST
JOINT COMMITTEE ON PUBLIC
AFFAIRS; THE BISHOP AND DIOCESE
OF COLORADO (PROTESTANT
EPISCOPAL CHURCH IN THE UNITED
STATES OF AMERICA); CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS; COLORADO BAPTIST
GENERAL CONVENTION; THE
COLORADO CATHOLIC CONFERENCE;
COLORADO DISTRICT CHURCH OF
THE NAZARENE; COLORADO MUSLIM
SOCIETY; COLORADO SPRINGS
ASSOCIATION OF EVANGELICALS;
EVANGELICAL LUTHERAN CHURCH
IN AMERICA; FIRST CHURCH OF
 CHRIST, SCIENTIST; GENERAL
 COUNCIL ON FINANCE AND
 ADMINISTRATION OF THE UNITED
 METHODIST CHURCH;
 INTERNATIONAL CHURCH OF THE
 FOURSQUARE GOSPEL; ISLAMIC
 SOCIETY OF COLORADO SPRINGS;
 MID-AMERICA UNION CONFERENCE
 OF SEVENTH-DAY ADVENTISTS; NEW
 LIFE CHURCH; PUEBLO ASSOCIATION
 OF EVANGELICALS; ROCKY
 MOUNTAIN CONFERENCE OF
 SEVENTH-DAY ADVENTISTS; ROCKY
 MOUNTAIN CONFERENCE OF THE
 UNITED METHODIST CHURCH;
 ROCKY MOUNTAIN OF THE
 LUTHERAN CHURCH-MISSOURI
 SYNOD; ROCKY MOUNTAIN
 PRESBYTERIAN (PRESBYTERIAN
 CHURCH IN AMERICA); ROCKY
 MOUNTAIN SYNOD, EVANGELICAL
 LUTHERAN CHURCH IN AMERICA;
 ROCKY MOUNTAIN YEARLY
 MEETING OF THE FRIENDS CHURCH;
 SOKA GAKKAI
 INTERNATIONAL-U.S.A. ROCKY
 MOUNTAIN REGION; SOLID ROCK
 CHRISTIAN CHURCH; THE UNITED
 STATES CATHOLIC CONFERENCE;
 WISCONSIN EVANGELICAL
 LUTHERAN SYNOD,

               Amici Curiae.


                             ORDER AND JUDGMENT               *




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the

                                            -2-
Before ANDERSON , TACHA , and KELLY , Circuit Judges.


      Plaintiff John Dean Ayon brought this diversity action against Father

Marshall Gourley, the Roman Catholic Archdiocese of Denver, and the

Archbishop of Denver, alleging various tort theories stemming from Gourley’s

purported sexual abuse of Ayon. The district court granted defendants’ motion to

dismiss and for summary judgment. Plaintiff timely appealed this decision. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                     Background

      On September 8, 1997, Ayon commenced this suit against the Archbishop,

the Archdiocese, and one of its priests, Father Gourley, in the United States

District Court for the District of Colorado. Ayon’s initial complaint alleged that

Gourley engaged in improper sexual contact with him when he was a minor

parishioner at the church to which Gourley was assigned in Denver. Ayon

claimed the sexual molestation and abuse occurred on numerous occasions from

June 1981 through June 1984. These facts supported Ayon’s claim of outrageous

conduct against Gourley. Ayon also asserted claims of negligent hiring and

supervision, outrageous conduct, breach of fiduciary duty, concert of action and


citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

                                          -3-
conspiracy against the Archbishop and Archdiocese (hereinafter collectively

referred to as “Archdiocese”). The Archdiocese filed a motion to dismiss or for

summary judgment on October 22, 1997, arguing that there were insufficient facts

to support the outrageous conduct and joint liability claims and that the statute of

limitations and the Free Exercise and Establishment Clauses of First Amendment

barred all claims against it. Gourley filed a summary judgment motion on

October 24, 1997, making a statute of limitations argument.

      On December 15, 1997, Ayon filed his response to defendants’ motions

and requested leave to amend his complaint to add additional facts. Those

additional facts included an allegation that Gourley sexually assaulted him in

1993. At a May 1, 1998 hearing, the court expressed concern about plaintiff’s

proposed first amended complaint changing and adding facts to respond to

defendants’ statute of limitations arguments. The court granted plaintiffs’ motion

to withdraw the proposed first amended complaint and to submit a new amended

complaint. However, the court limited the scope of the amendment by prohibiting

changes to the original complaint’s factual allegations. The district court stated:

      I will expressly exclude . . . , by striking, any amendments which . . .
      seek to modify the factual allegations of the complaint. I do not
      think that is a proper amendment. . . .

             For instance, the amended complaint presently filed attempts to
      modify certain dates with regard to actions which were originally
      alleged in the complaint for the apparent purpose of responding to
      the statute of limitations problem. I will not allow such amendments.

                                         -4-
      If you have alleged a certain occurrence on a certain date, I do not
      think it’s proper now in response to a summary judgment motion
      that’s been filed by the defendants to amend those dates to cure the
      defects alleged in the summary judgment.

Appellant’s App., Vol. III, at 774-75. Plaintiff objected to this limitation.

      Plaintiff subsequently filed a renewed motion for leave to amend, along

with a new amended complaint. The court granted in part and denied in part the

renewed motion to amend. The court allowed amendments to the extent that they

clarified or added claims. The amended complaint therefore alleged claims of

outrageous conduct and breach of fiduciary duty against Gourley and claims of

negligent hiring and supervision, outrageous conduct, and vicarious liability

against the Archdiocese. The court refused, however, to allow any changes to

factual allegations in the original complaint. To that end, it struck several factual

assertions from the amended complaint, including an allegation of a 1993

attempted assault by Gourley, an allegation that abuse continued from the 1980s

through 1993, and an allegation that plaintiff did not realize that Gourley’s

alleged actions had caused him harm until he sought psychological counseling in

July 1997. The court also noted that the amended complaint had omitted facts

from the original complaint describing how plaintiff had suffered emotional

distress from the alleged abuse constantly from the 1980s until the present. This

omission and the new facts, the court concluded, were designed to avoid the

statute of limitations bar. Therefore, the court ruled that it would treat facts

                                          -5-
alleged in the original complaint as “judicial admissions.” Plaintiff did not object

to such treatment.

      On July 15, 1998, the district court granted the Archdiocese’s motion to

dismiss and defendants’ motions for summary judgment. The court held that the

Free Exercise and Establishment Clauses of the First Amendment barred Ayon’s

negligence and outrageous conduct claims against the Archdiocese because any

inquiry into church hiring or employment of priests would interfere with the

Archdiocese’s right to free exercise of religion and excessively entangle the

courts in church operations. The court also dismissed the vicarious liability

claims because plaintiff failed to properly plead the Archdiocese’s ratification of

Gourley’s conduct. On summary judgment, the court concluded that plaintiff’s

causes of action for the alleged 1981-84 abuse accrued prior to 1991. Under

Colorado law, a cause of action accrues when the injury and its cause are known

or should have been known to the plaintiff.         See Mastro v. Brodie , 682 P.2d 1162,

1168 (Colo. 1984). Because this suit was not filed until 1997, the court held the

statute of limitations had run with respect to all claims against defendants and

granted their summary judgment motions.

      Plaintiff argues four issues on appeal: (1) the First Amendment does not bar

suit against the Archdiocese for its allegedly tortious actions; (2) he properly pled

the vicarious liability claims; (3) the district court abused its discretion in


                                              -6-
allowing only partial amendment of the complaint and treating facts from the

original complaint as “judicial admissions;” and (4) even under the facts of the

original complaint, the cause of action did not accrue until 1997, thus bringing the

action within the applicable statutes of limitations. We find no error in the

district court’s treatment of the complaint or its conclusion that all of plaintiff’s

causes of action are barred by the applicable statutes of limitations. Therefore,

we need not address the First Amendment and vicarious liability questions.

                                      Discussion

                                           I.

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. See Byers v. City of

Albuquerque 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this

standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party. See Byers, 150 F.3d at 1274.

      As the district court noted, the statute of limitations question turns on when

plaintiff’s causes of action accrued. In order to fully evaluate the statute of


                                          -7-
limitations issue, we must first resolve what facts we may consider. Accordingly,

we turn to the district court’s treatment of plaintiff’s amended complaint.

       “The decision to grant leave to amend a complaint, after the permissive

period, is within the trial court’s discretion, Fed. R. Civ. P. 15(a), and will not be

disturbed absent an abuse of that discretion.”       Woolsey v. Marion Labs, Inc. , 934

F.2d 1452, 1462 (10th Cir. 1991). The district court should deny leave to amend

only when it finds “undue delay, undue prejudice to the opposing party, bad faith

or dilatory motive, failure to cure deficiencies by amendments previously allowed,

or futility of amendment.”    Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Cir.

1993). However, untimeliness alone may be sufficient reason to deny leave to

amend, “‘especially when the party filing the motion has no adequate explanation

for the delay.’” Pallottino v. City of Rio Rancho     , 31 F.3d 1023, 1027 (10th Cir.

1994) (quoting Frank , 3 F.3d at 1365-66). Failure to include known facts in the

original complaint may also constitute grounds for denial.       See id. (citing State

Distribs., Inc. v. Glenmore Distilleries Co.     , 738 F.2d 405, 416 (10th Cir. 1984)).

       The district court in this case refused to allow complete amendment of the

complaint for at least two reasons. First, it found the amendment would further

delay the proceedings. Second, and more importantly, the court expressed

concern about plaintiff’s bad faith and dilatory motive. It found “by virtue of the

nature of the amendments which are proffered here in this amended complaint,


                                               -8-
that it is a rather lightly veiled attempt to avoid the allegations . . . and admissions

which were made in previous complaints, which are unfavorable to the plaintiff

under the legal theories now expounded.” Appellant’s App., Vol. III, at 808. The

court placed some weight on plaintiff’s failure to explain the initial exclusion of

the disputed facts, especially because plaintiff did not claim the facts derived

from newly discovered evidence. We find the district court’s decision does not

amount to an abuse of discretion. “‘A busy district court need not allow itself to

be imposed upon by the presentation of theories seriatim.’”     Pallottino , 31 F.3d at

1027 (quoting Freeman v. Continental Gin Co.      , 381 F.2d 459, 469-70 (5th Cir.

1967)). Plaintiff’s inability to explain why he waited three months before seeking

to add facts known to him at the time he filed his initial complaint, combined with

the evidence of bad faith, support the district court’s ruling on the amendment of

the claim. See Panis v. Mission Hills Bank, N.A.     , 60 F.3d 1486, 1495 (10th Cir.

1995); Pallottino , 31 F.3d at 1027; Frank , 3 F.3d at 1366.

      When the district court struck plaintiff’s new facts from the amended

complaint, it initially ordered the factual allegations from the original complaint

added to the amended complaint. Soon thereafter, the district court realized that

“we are totally changing the amended complaint, and about the only way we could

approach it would be to reamend – to come up with a new complaint.”

Appellant’s App., Vol. III at 815. Rather than order another amended complaint,


                                           -9-
the district court suggested treating facts from the original complaint as “judicial

admissions” by the plaintiff. Plaintiff argues that the amended complaint

superseded the original, making the court’s ruling on “judicial admissions”

erroneous. However, plaintiff failed to make this argument to the district court or

to object to the district court’s “judicial admissions” decision.   1
                                                                        This court has

repeatedly stated that:

       Generally, we will not consider an issue that was not raised and
       resolved in the trial court. We will consider matters not raised or
       argued in the trial court only in the most unusual circumstances,
       which may include issues regarding jurisdiction and sovereign
       immunity, . . . instances where public interest is implicated, . . . or
       where manifest injustice would result.

Smith v. Rogers Galvanizing Co.       , 128 F.3d 1380, 1385-86 (10th Cir. 1997)

(internal quotation marks and citations omitted). Finding no extraordinary

circumstances in this case, we hold plaintiff has waived this argument on appeal.

Therefore, like the district court, we shall consider the facts as presented in

plaintiff’s original complaint.

                                              II.

       In a diversity case, we apply the substantive law, including the statutes of



       1
        Plaintiff did object when the district court announced at the May 1, 1998 status
hearing that it would impose limitations on the plaintiff’s ability to change facts in the
amended complaint. Therefore, he may properly challenge the district court’s amendment
decision. However, at the June 19, 1998 motions hearing, plaintiff made no objection to
the court’s decision to treat the facts in the original complaint as judicial admissions.

                                            - 10 -
limitations, applicable under the law of the forum state.           See, e.g. , Miller v.

Armstrong World Indus., Inc. , 949 F.2d 1088, 1089 n.3 (10th Cir. 1991). The

parties agree Colorado law governs this suit. While there is some disagreement as

to which statutes of limitations apply to the different parties, the dispositive issue

is when plaintiff’s causes of action accrued.         2
                                                          Plaintiff claims they accrued in

1997 when he received counseling. Defendants argue they accrued in the 1980s

when the alleged sexual contact occurred.

       We conclude that, under Colorado law, plaintiff’s causes of action accrued

in 1984, at the latest. Colorado law provides that personal injury causes of action

accrue “when the claimant has knowledge of facts which would put a reasonable

person on notice of the nature and extent of an injury and that the injury was

caused by the wrongful conduct of another.”               Mastro v. Brodie , 682 F.2d 1162,

1169 (Colo. 1984); cf. Colo. Rev. Stat. § 13-80-108(1) (adopting, after 1986, the

same rule announced in      Mastro ). Plaintiff’s claimed injury is emotional distress.


       2
         Plaintiff claims the two-year statute of limitations set out in Colo. Rev. Stat. § 13-
80-102 applies to the Archdiocese defendants and the special six-year statute of
limitations for sexual assaults, see id. § 13-80-103.7, applies to Gourley. This is true if
plaintiff’s causes of action accrued in 1997. However, if the causes of action accrued in
the early 1980s, the applicable statutes of limitation at that time were six years for
negligence and outrageous conduct claims pursuant to former Colo. Rev. Stat. § 13-80-
110, see Cassidy v. Smith, 817 P.2d 555, 557 (Colo. Ct. App. 1991), and five years for
breach of fiduciary duty claims pursuant to former Colo. Rev. Stat. § 13-80-114, see Van
Schaack v. Van Schaack Holdings, Ltd., 856 P.2d 15, 25 (Colo. Ct. App. 1992), aff’d,
867 P.2d 892 (Colo. 1994). Colorado significantly revised its statutes of limitations in
1986.

                                             - 11 -
Plaintiff contends that he did not connect the injury to its cause until his therapy

in 1997. However, the facts in Ayon’s initial complaint and affidavits, combined

with the applicable Colorado law, dictate a contrary conclusion.

       In Cassidy v. Smith , 817 P.2d 555, 557-58 (Colo. Ct. App. 1991), two

minor girls, ages fifteen and seventeen, were sexually abused by a close family

friend. The girls knew the activity was “improper” and admitted feeling pain,

despair, alienation, shame, confusion, and other emotional distress at the time.

See id. at 557. The plaintiffs asserted, however, that they were unaware of the

damage resulting from the abuse until years later, after their mother confronted

them about the sexual abuse and advised them to seek psychological counseling.

Plaintiffs submitted personal affidavits as well as those from treating therapists

regarding the delayed discovery of the cause of their psychological injuries.    See

id. Despite these affidavits, the court concluded that after the girls reached

majority, “plaintiffs were aware of the wrongful nature of defendant’s acts and . .

. they had sufficient knowledge concerning the existence of resulting

psychological harm that the statute of limitations began to run when they achieved

their majority.”   Id. at 558. In finding plaintiffs aware of both injury and cause,

the court implicitly rejected the theory now presented to this court by Ayon.    See

id. at 558 (Dubofsky, J., dissenting) (“The fact that plaintiffs experienced some

initial psychological problems from having sexual relationships with defendant


                                           - 12 -
does not, as a matter of law, give them notice that these relationships would result

in subsequent serious psychological problems.”).

      Under Cassidy , Ayon knew or should have known the alleged sexual abuse

was wrong and “had sufficient knowledge concerning the existence of resulting

psychological harm,” id. at 558, at least in 1984, if not earlier. Ayon was sixteen

when the alleged abuse began in 1981 and almost twenty at the time of the last

incident in June 1984. In his affidavit, he admits being “embarrassed, humiliated,

ashamed and fearful about what happened” and claims to have blamed himself.

Appellant’s App., Vol. I, at 313. He also claims Gourley threatened to kill him or

his mother if he ever told anyone about the abuse. Additionally, the original

complaint alleges: “From the dates of the abuse to the present, and largely

because of his abuse, the Plaintiff has been continually subject to coercion,

duress, religious duress, mental infirmity, disability and unsound mind as to the

facts, conditions and circumstances surrounding his sexual abuse.”   Id. at 4. The

alleged threat by Gourley, plaintiff’s recognition that he was embarrassed and

fearful, and his acknowledgment that he blamed himself show Ayon knew the

wrongfulness of the alleged abuse. Moreover, to the extent Ayon claims

repression of the wrongfulness of the alleged encounters with Gourley, we

conclude, on these facts, that he should have known the wrongfulness of the acts.

A reasonable plaintiff of nineteen who felt fear and embarrassment and who


                                          - 13 -
allegedly received death threats stemming from the actions in question should

have reasonably known of the wrongfulness of the actions. As for the injury,

plaintiff admits that he suffered emotional distress at the time of the alleged

incidents of abuse.    See id. Thus, as in Cassidy , plaintiff knew or should have

known the wrongful nature of the act, the resulting injury, and the causal

connection between the two.       See Cassidy , 817 P.2d at 557-58. We therefore find

that plaintiff’s causes of action accrued in 1984 and the applicable statute of

limitations periods expired, at the latest, in 1990. Plaintiff’s causes of actions

against the defendants are barred.

       In his reply brief, plaintiff for the first time makes an argument that the

statute of limitations for the negligent hiring/supervision claim against the

Archdiocese did not begin to run until plaintiff knew or should have known that

others had also been abused. We generally will not consider issues raised for the

first time in the reply brief.   See Codner v. United States , 17 F.3d 1331, 1332 n.2

(10th Cir. 1994); Lyons v. Jefferson Bank & Trust       , 994 F.2d 716, 724 (10th Cir.

1993). We decline to do so here.

       Finally, we refuse plaintiff’s entreaty to reconsider or disregard   Cassidy in

light of advances in understanding of abuse victims over the past decade. In this

case, we are bound by Colorado law, and plaintiff provides no authority that




                                            - 14 -
would call Cassidy into question.    3
                                         Plaintiff’s supplemental authority,   Sailsbery v.

Parks , 1999 WL 107277 (Colo. Ct. App. Mar. 4, 1999), does little to affect our

conclusion. In Sailsbery , plaintiff, who alleged sexual abuse by the defendant

from age eleven to eighteen, claimed repressed memory of the sexual abuse itself.

See id. at *1, *4. The court distinguished the case from         Cassidy because

Sailsbery claimed not to remember the incident, any injury, or the cause of the

injury until she recovered that memory in therapy.         See id. at *3. We note that

Ayon makes no claim of repressed memory of the events forming the basis of his

complaint.

       As a court sitting in diversity, we must apply the law as it exists in

Colorado. Colorado law demands summary judgment in favor of defendants.




       3
         Colorado amended its statute of limitations law in 1993 to provide a tolling of the
statute of limitations for persons under disabilities who suffer sexual assault, including
those in a special relationship of trust who are “psychologically or emotionally unable to
acknowledge the assault or offense and the harm resulting therefrom.” Colo. Rev. Stat. §
13-80-103.7(3.5)(a). The statutes of limitations ran on plaintiff’s claims prior to the new
statute taking effect, and we express no opinion on whether this statute would have
otherwise applied to plaintiff.

                                             - 15 -
Therefore, the district court’s order granting summary judgment is AFFIRMED.


                                    ENTERED FOR THE COURT,


                                    Deanell Reece Tacha
                                    Circuit Judge




                                     - 16 -
