                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 18, 2005
                                 TENTH CIRCUIT
                                                                        Clerk of Court

 JAMES M. ERIKSON and PATRICK
 KILGALLEN,
                                                        No. 03-6352
               Plaintiffs-Appellants,
          v.                                   Western District of Oklahoma
 FARMERS GROUP, INC., a Nevada                   (D.C. No. CIV-02-1117-L)
 corporation; RICHARD J. BRUCE;
 WILLIAM D. PETTIGREW,
 individually and as agents and
 employees of Farmers Insurance
 Group of Companies, and Dobbs &
 Middleton,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, McWILLIAMS, and McCONNELL, Circuit Judges.


      This case arises out of a personal injury action in an Oklahoma state court.

Plaintiffs allege that Farmers Group, Inc. (“Farmers”) misrepresented the scope of

the state court’s medical privilege waiver and thereby improperly obtained



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
confidential medical records. On June 26 and 27, 2000, Farmers introduced into

evidence some of the information contained in those medical records. Plaintiffs

claim that they learned of Farmers’ alleged misrepresentation on August 14, 2000

when they received a copy of a letter sent by Farmers to one of Mr. Erikson’s

physicians. Plaintiffs filed the current lawsuit in the United States District Court

for the Western District of Oklahoma on August 14, 2002, asserting state law

claims against Farmers for invasion of privacy and misrepresentation, and a

federal claim under the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961-1968. The district court dismissed Plaintiffs’ claims,

finding that Plaintiffs’ state law claims were barred by Oklahoma’s two-year

statute of limitations and that Plaintiffs failed to allege a pattern of racketeering

activity. We AFFIRM.

                                           I.

      In 1995, Plaintiffs James Erikson and Patrick Kilgallen were rear-ended by

a vehicle driven by Dana Davis-Lauderdale, who Plaintiffs allege was insured by

Farmers. 1 Mr. Erikson and Mr. Kilgallen filed a lawsuit against Ms. Davis-

Lauderdale in the District Court of Cleveland County, Oklahoma. The Cleveland



      1
         Defendant, whose full name is Farmers Group, Inc., disputes the allegation
that it insured Ms. Davis-Lauderdale, claiming that it is not an insurance
company. Because Farmers declined to address this issue on appeal, we do not
consider it here.

                                           -2-
County court ordered a partial medical privilege waiver permitting Farmers to

obtain medical records regarding Mr. Erikson’s headaches, neck, back, shoulder,

arm, and blood pressure problems, and Mr. Kilgallen’s head, neck, back, side,

shoulder, and arm problems. Plaintiffs allege that Farmers, acting through the

attorneys at Dobbs & Middleton who represented Ms. Davis-Lauderdale, sent

letters to 46 health-care providers who had treated or examined Plaintiffs before

or after the automobile accident. According to Plaintiffs, these letters

misrepresented the scope of the partial medical privilege waiver, stating that the

court order entitled Farmers to obtain all medical information contained in Mr.

Erikson’s and Mr. Kilgallen’s files. The court’s medical privilege waiver was

attached to the letters.

      On January 20, 2000, Plaintiffs filed a motion in limine in the state court

proceedings to exclude any reference to their pre-existing medical conditions or

disabilities. In the motion, Plaintiffs argued that Farmers provided the Plaintiffs

with an extensive and voluminous collection of Plaintiffs’ pre-existing medical

conditions, constituting approximately 2,000 pages of records. Plaintiffs sought

to exclude the medical records because Farmers obtained the records without

providing Plaintiffs with a copy of the subpoena as required under Oklahoma law.

Although the record is not entirely clear, this motion was apparently denied.




                                         -3-
      Plaintiffs allege that at trial, on June 26 and 27, 2000, Farmers introduced

confidential medical records that were outside the scope of the partial medical

privilege waiver. Specifically, they allege that at trial Farmers made known to the

court, jurors, and general public confidential medical information relating to

injuries suffered in a taxi-cab accident in the 1940s, that one of them was

prescribed Prozac, and that one of them had been previously prescribed massage

therapy. Plaintiffs claim that these medical records were not relevant to the

personal injury claim, and that they were unduly embarrassed, surprised and taken

aback when this evidence was introduced at trial. The jury returned a verdict in

favor of Ms. Davis-Lauderdale on June 28, 2000.

      Later, on August 14, 2000, Plaintiffs received a copy of the letter sent by

Farmers to Dr. Thomas Hoffmeyer, one of Mr. Erikson’s medical providers.

Plaintiffs then subpoenaed Farmers for copies of all letters sent to Mr. Erikson’s

and Mr. Kilgallen’s medical providers, and Farmers produced copies of all letters.

On September 26, 2000, Plaintiffs moved in the District Court of Cleveland

County for a judgment notwithstanding the verdict, based in part on their

assertion that Farmers wrongfully obtained the medical records that were used

against Mr. Erikson and Mr. Kilgallen at trial. After the trial court denied the

motion, Plaintiffs appealed to the Oklahoma Court of Civil Appeals, which

affirmed.


                                         -4-
      On August 14, 2002, Plaintiffs filed this lawsuit in the United States

District Court for the Western District of Oklahoma. Plaintiffs alleged that

Farmers violated RICO by fraudulently stating or implying that a court authorized

the release of medical records not pertaining to Plaintiffs’ injuries. Invoking the

court’s diversity jurisdiction, Plaintiffs also asserted state law claims of invasion

of privacy by intrusion, private life invasion of privacy, false light invasion of

privacy, and misrepresentation. Farmers filed a motion to dismiss, claiming that

Plaintiffs’ state law claims were barred by the statute of limitations, the doctrine

of collateral estoppel, and the doctrine of absolute litigation immunity; and that

the RICO claim failed to allege a pattern of racketeering activity. The district

court found that because Plaintiffs knew of Farmers’ alleged wrongful conduct at

the personal injury trial, more than two years before this lawsuit was filed,

Plaintiffs’ claims were barred under Oklahoma’s two-year statute of limitations.

The district court also held that Plaintiffs’ allegations did not establish a pattern

of racketeering activity because Plaintiffs did not allege a threat of continuing

criminal activity. Plaintiffs now appeal the district court’s dismissal of their

claims.

                                          II.

      We review the district court’s grant of a motion to dismiss de novo. U.S.

West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999). In reviewing the


                                           -5-
district court’s grant of a 12(b)(6) motion to dismiss, we accept all well-pleaded

factual allegations in the complaint as true and view them in the light most

favorable to the non-moving party. Sutton v. Utah State Sch. for Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir. 1999). Exhibits attached to a complaint and

matters of public record are properly treated as part of the pleadings for purposes

of ruling on a motion to dismiss. See Grynberg v. Koch Gateway Pipeline Co.,

390 F.3d 1276, 1278 n.1 (10th Cir. 2004) (facts subject to judicial notice, such as

prior court proceedings, may properly be considered in a motion to dismiss);

Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). We will affirm a

dismissal “only when it appears that the plaintiff can prove no set of facts in

support of the claims that would entitle the plaintiff to relief.” Deck v.

Engineered Laminates, 349 F.3d 1253, 1256 (10th Cir. 2003).



      A. State Law Claims of Invasion of Privacy and Misrepresentation

      The district court dismissed Plaintiffs’ invasion of privacy and

misrepresentation claims under Oklahoma’s two-year statute of limitations. The

district court found that the statute of limitations began to run no later than June

28, 2000, the date on which the jury returned a verdict in the state court trial.

Whether a district court properly applied a statute of limitations and the date on

which the statute of limitations accrued under undisputed facts are questions of


                                          -6-
law we review de novo. Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117,

1119 (10th Cir. 2005). Both parties agree that Oklahoma law applies to

Plaintiffs’ state law claims.

      Under Oklahoma law, claims for invasion of privacy and misrepresentation

are subject to a two-year statute of limitations. Okla. Stat. tit. 12, § 95 (two-year

statute of limitations applies to actions for injury to the rights of another, not

arising under contract); Colbert v. World Publ’g Co., 747 P.2d 286, 288-89 (Okla.

1987) (holding that Title 12, Section 95 applies to claims for false light invasion

of privacy). Oklahoma courts apply the so-called “discovery rule” to determine

when the two-year statute of limitations accrues. Smith v. Baptist Found. of

Okla., 50 P.3d 1132, 1137 (Okla. 2002). The discovery rule provides that “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, 840

P.2d 619, 624 (Okla. 1992). Even under the discovery rule, a plaintiff is required

to pursue claims with diligence. Daugherty v. Farmers Coop. Ass’n, 689 P.2d

947, 951 (Okla. 1984). The statute of limitations is not tolled simply because a

plaintiff “negligently refrain[s] from prosecuting inquiries plainly suggested by

the facts.” Id. Accordingly, a plaintiff is charged with having knowledge of

those facts which ought to have been discoverable in the exercise of reasonable

diligence. Id.


                                           -7-
      The central question in deciding whether the statute of limitations has

expired for Plaintiffs’ claims is when the Plaintiffs knew or should have known

that they suffered injury. Plaintiffs’ invasion of privacy and misrepresentation

claims all focus upon the injury Plaintiffs suffered when Farmers obtained and

disclosed private medical information to the court, jurors, and members of the

general public at trial on June 26 and 27, 2000. However, Plaintiffs contend their

claims are not barred by the statute of limitations because they did not become

aware of Farmers’ alleged misrepresentations until August 14, 2000.

      The discovery rule, as interpreted by the Oklahoma Supreme Court and this

Court, tolls the limitation period only until a plaintiff learns of an injury and,

through prudent investigation, can obtain sufficient facts to state a cause of

action. In Samuel R. Noble Foundation, for example, the Oklahoma Supreme

Court held that the plaintiff’s awareness that doors were sticking and tiles were

popping off a newly constructed building was sufficient information to start the

limitations period even though the exact source of the problem was unknown until

the completion of a later, independent report. Samuel R. Noble Found., 840 P.2d

at 626; see also Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1217 (10th Cir.

2000) (stating that it was irrelevant whether the plaintiff understood that the

defendant’s actions constituted a misappropriation of trade secrets as long as the

plaintiff knew of the facts which could give rise to such a claim).


                                           -8-
      The situation presented here is analogous to that in Samuel R. Noble

Foundation. Just as in that case the plaintiff was aware of their injuries when the

doors were sticking and tiles were falling off, Plaintiffs here were aware that their

privacy rights were invaded on June 26 and 27, 2000 when Farmers introduced

confidential medical information allegedly outside the scope of the state court’s

partial medical privilege waiver. Plaintiffs’ complaint alleges that the Plaintiffs

were “unduly embarrassed, surprised and taken aback” at trial by the introduction

of this confidential medical information. Once the injury occurred at trial, the

only information Plaintiffs lacked was how Farmers obtained the medical records.

The mere fact that Plaintiffs did not know how Farmers obtained the confidential

medical information is insufficient to toll the limitations period, just as the

Samuel R. Noble Foundation plaintiff’s ignorance about the exact nature or cause

of the building defects was insufficient to toll the limitation period in that case.

See Samuel R. Noble Found., 840 P.2d at 625-26 (“It was not necessary that the

plaintiff have knowledge of the exact nature or source of the defects, but only the

knowledge that a problem existed.”). Plaintiffs’ awareness at trial that they had

suffered an injury was sufficient to permit them to investigate Farmers’ source of

information, an investigation that, once pursued, led to information useful to their

state law claims. Under Oklahoma’s interpretation of the discovery rule,




                                          -9-
Plaintiffs possessed sufficient information to permit them to pursue their claims

such that the limitations period started to run no later than June 28, 2000.

      Applying Oklahoma’s two-year statute of limitations for invasion of

privacy and misrepresentation, the statute of limitations expired no later than June

28, 2002. Plaintiffs did not file this lawsuit until August 14, 2002. Therefore,

the district court properly held that Plaintiffs’ misrepresentation and invasion of

privacy claims are barred by the statute of limitations. Because Plaintiffs’ state

law claims are barred by the statute of limitations, we do not consider Farmers’

other defenses.



      B. RICO Claim

      Aside from their state law claims, Plaintiffs also allege that Farmers

operated an enterprise that conducted its affairs by using wire and mail fraud to

obtain Plaintiffs’ medical records in violation of 18 U.S.C. § 1962(c). To

successfully state a RICO claim, a plaintiff must allege four elements: "(1)

conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (footnote omitted);

Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002). The district court

dismissed Plaintiffs’ RICO claim, finding that Plaintiffs failed to allege the third

element: a pattern of racketeering activity.


                                         -10-
      Section 1962(c) prohibits any person employed by or associated with any

enterprise engaged in activities affecting interstate commerce to “conduct or

participate, directly or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity . . . .” 18 U.S.C. § 1962(c). A “pattern

of racketeering activity” must include “at least two acts of racketeering activity”

in a ten-year period. Id. § 1961(5). Furthermore, to show a pattern of

racketeering activity, a RICO plaintiff must also satisfy two additional elements:

“a relationship between the predicates” and “the threat of continuing activity.”

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). A plaintiff

may demonstrate continuity by establishing either closed-ended or open-ended

continuity. Id. at 241.

      [C]losed-ended continuity requires “a series of related predicates extending
      over a substantial period of time. Predicate acts extending over a few
      weeks or months”are insufficient. H.J. Inc., 492 U.S. at 242. Open-ended
      continuity requires a clear threat of future criminal conduct related to past
      criminal conduct.

Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1273 (10th Cir. 1989). A single

scheme to accomplish one discrete goal, directed at a finite group of individuals,

with no potential to extend to other persons or entities, rarely will suffice to

establish a threat of continuing activity. See Boone v. Carlsbad Bancorporation,

Inc., 972 F.2d 1545, 1556 (10th Cir. 1992); Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d

1507, 1516 (10th Cir. 1990); Phelps, 886 F.2d at 1273-74.


                                          -11-
      Plaintiffs have alleged that Farmers committed 46 acts of mail or wire fraud

by sending letters to Plaintiffs’ healthcare providers that misrepresented the scope

of the partial medical privilege waiver. Even if each letter were to constitute a

separate act of racketeering activity, Plaintiffs have failed to establish a threat of

continuing criminal activity. Plaintiffs’ allegation amounts to no more than a

claim that Farmers engaged in a single scheme to obtain medical information

about them before the Oklahoma trial from a large number of sources. Plaintiffs

cannot demonstrate closed-ended continuity because the predicate acts of mailing

the letters occurred exclusively during discovery—a period not exceeding a few

months. See Boone, 972 F.2d at 1555-1556 (schemes and episodes occurring over

23 months did not satisfy the RICO continuity requirement). Likewise, there is

no threat of future criminal conduct that will establish open-ended continuity.

The trial having concluded, there is no possibility that Farmers will continue this

scheme with regard to these Plaintiffs. Nor have Plaintiffs alleged that Farmers

consistently engages in this pattern of misrepresentation and mail fraud in its

regular course of business, such that future claimants in Plaintiffs’ situation will

suffer the same injury. Plaintiffs have not alleged the type of long-term criminal




                                          -12-
activity against which the RICO statute is aimed. See H.J. Inc., 492 U.S. at 242.

Accordingly, the district court’s dismissal of the RICO claim was not in error. 2



                                         III.

      For the foregoing reasons, we AFFIRM the judgment of the district court

granting Farmers’ motion to dismiss.


                                                    Entered for the Court


                                                    Michael W. McConnell
                                                    Circuit Judge




      2
       Plaintiffs also contend that the district court abused its discretion by not
allowing them to amend the RICO allegations in their Second Amended
Complaint and by dismissing the case before Plaintiffs conducted additional
discovery. However, Plaintiffs failed to request leave to amend their complaint or
conduct additional discovery. Accordingly, the district court did not err in failing
to grant relief not sought. See, e.g., Glenn v. First Nat’l Bank in Grand Junction,
868 F.2d 368, 371 (10th Cir. 1989) (holding there was no error in the district
court’s failure to rule on a request to amend a complaint contained in a response
to a motion to dismiss, where the plaintiffs never filed a motion for leave to
amend the complaint after the district court dismissed the complaint).

                                         -13-
