                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  February 1, 2012
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

    ELLEN GARMAN, guardian and next
    friend of Apryl Garman,

                Plaintiff-Appellant,
                                                          No. 11-8042
    v.                                          (D.C. No. 1:09-CV-00248-WFD)
                                                           (D. Wyo.)
    CAMPBELL COUNTY SCHOOL
    DISTRICT NO. 1, State of Wyoming,
    and CHRIS MILLIRON,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HOLMES, Circuit Judges.



         Ellen Garman appeals the district court’s dismissal with prejudice of her

complaint against Campbell County School District No. 1 and Chris Milliron

(collectively, the School District). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      Garman’s daughter, Apryl Garman, was injured while participating in a

physical education class at her middle school on November 1, 2004. On October

4, 2006, Garman served the School District with a notice of claim under

§ 1-39-113 of the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann.

§§ 1-39-101 through 1-39-121, in which she contended that Apryl’s injuries

resulted from the School District’s negligence. As next friend and guardian of

Apryl, Garman filed a complaint in district court against the School District on

October 4, 2007 (Garman I). The district court dismissed Garman’s action for

lack of subject matter jurisdiction on November 12, 2008, based on her failure to

allege compliance with certain Wyoming constitutional and statutory

requirements for bringing a WGCA claim. Garman appealed the district court’s

judgment of dismissal.

      On November 2, 2009, while her appeal in Garman I was pending, Garman

filed the complaint in this action (Garman II), reciting essentially the same

allegations as her complaint in Garman I. The parties agreed to stay this action

pending a ruling from this court on Garman’s appeal in Garman I. We affirmed

the dismissal of Garman’s complaint in Garman I on December 23, 2010. See

Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977 (10th Cir. 2010), cert.

denied, 132 S. Ct. 95 (2011).




                                        -2-
      The School District moved to dismiss Garman’s complaint in Garman II on

January 21, 2011. Among other contentions, the School District asserted that the

district court did not have jurisdiction because the complaint was not filed within

one year of Garman’s notice of claim to the School District, as required by Wyo.

Stat. Ann. § 1-39-114. Garman opposed the motion, contending that her

complaint was timely under the Wyoming savings statute, Wyo. Stat. Ann.

§ 1-3-118. While the School District’s motion was pending, the Wyoming

Supreme Court overruled its prior cases in which it had held that a court lacked

jurisdiction over a WGCA claim if the complaint failed to plead compliance with

the statutory and constitutional requirements. See Brown v. City of Casper,

248 P.3d 1136, 1139 (Wyo. 2011). 1

      The district court granted the School District’s motion to dismiss in

Garman II. Applying the Wyoming Supreme Court’s decision in Hall v. Park

County, 238 P.3d 580, 585 (Wyo. 2010), it held that the savings statute does not

apply to WGCA claims. The court further concluded that the ruling in Hall

applied retroactively to Garman’s complaint, which she had filed ten months

before Hall was decided. The court also rejected Garman’s contention that the



1
       The Brown decision did not entirely overturn the precedent supporting
dismissal of Garman’s complaint in Garman I. Although the pleading defects
identified in Garman I would be curable by an amendment of the complaint under
Brown, Garman was precluded from doing so in Garman I because she failed to
seek leave to amend. See Garman, 630 F.3d at 986 & n.8.

                                         -3-
Wyoming Supreme Court’s later holding in Brown undercut the reasoning in Hall.

The district court therefore dismissed Garman’s complaint in Garman II with

prejudice, and she filed a timely appeal. 2

                              II. Standard of Review

      We review de novo the dismissal of a complaint for lack of subject matter

jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008).

Garman invoked the district court’s diversity jurisdiction under 28 U.S.C.

§ 1332(a), and the events at issue occurred in Wyoming. Wyoming law therefore

applies to Garman’s claim. See Mtn. W. Mines, Inc. v. Cleveland-Cliffs Iron Co.,

470 F.3d 947, 950-51 (10th Cir. 2006). Our review of the district court’s

interpretation of Wyoming law is also de novo. See Beardsley v. Farmland Co-

Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008). “[W]e must apply the most

recent statement of state law by the state’s highest court.” Wood v. Eli Lilly &

Co., 38 F.3d 510, (10th Cir. 1994). 3

2
      The order dismissing Garman’s complaint was entered on May 12, 2011,
and she filed her notice of appeal on June 10, 2011. Although the district court
did not enter judgment in a separate document, and the judgment therefore did not
become final until 150 days after entry of the dismissal order, see Fed. R. Civ. P.
58(c)(2)(B), Garman’s notice of appeal was nonetheless valid, see Constien v.
United States, 628 F.3d 1207, 1211 (10th Cir. 2010), cert. denied, 131 S. Ct. 2884
(2011).
3
       The School District asserts that, where the Wyoming Supreme Court has
not ruled on a question, this court must defer to the district court’s interpretation
of Wyoming law unless it is clearly erroneous. The United States Supreme court
rejected that deferential standard of review over twenty years ago in Salve Regina
                                                                         (continued...)

                                          -4-
                                  III. Discussion

                                A. Section 1-39-114

      The WGCA defines the limitations period for bringing a claim against a

governmental entity as follows, in relevant part:

      Except as otherwise provided, actions against a governmental entity
      or a public employee acting within the scope of his duties for torts
      occurring after June 30, 1979 which are subject to this act shall be
      forever barred unless commenced within one (1) year after the date
      the claim is filed pursuant to W.S. 1-39-113.

Wyo. Stat. Ann. § 1-39-114 (emphasis added). Garman filed her notice of claim

on October 4, 2006. She filed her complaint in Garman II on November 2, 2009,

more than one year after filing her claim. Therefore, under § 1-39-114 her action

was untimely and “forever barred.” She contended, however, that because her

complaint in Garman I was timely filed, and it was dismissed other than on the

merits, her complaint in Garman II was also timely filed under the Wyoming

“savings statute,” which provides, again in relevant part:

      If in an action commenced in due time a judgment for the plaintiff is
      reversed, or if the plaintiff fails otherwise than upon the merits and
      the time limited for the commencement of the action has expired at
      the date of the reversal or failure, the plaintiff, or his representatives
      if he dies and if the cause of action survives, may commence a new
      action within one (1) year after the date of the failure or reversal.

Wyo. Stat. Ann. § 1-3-118.



3
(...continued)
College v. Russell, 499 U.S. 225, 1221-22 (1991).

                                          -5-
      But after Garman filed her complaint in Garman II, the Wyoming Supreme

Court decided in Hall that the savings statute does not apply to claims under the

WGCA. See 238 P.3d at 585. In Hall, the court began its analysis with the

uncontroverted proposition that, “under the WGCA, immunity is the rule, and

liability the exception.” Id. at 583. The court noted that “other courts have held

that, absent specific statutory provision to the contrary, the doctrine of immunity

precludes application of the savings statute in cases involving governmental

claims.” Id. at 584. The court then concluded:

             The language of Wyo. Stat. Ann. § 1–39–114 could not be
      more clear: actions against governmental entities are “forever
      barred” unless commenced within one year after presentment of the
      claim. . . . Under the specific language of the statute, and in the
      particular circumstance of sovereign immunity being the WGCA’s
      “default position,” the [appellant’s] second suit was time barred. The
      “closed ended” WGCA does not provide for liability beyond its
      specific provisions, and there is no provision within the WGCA for
      application of the savings statute, which is not part of the Act, to
      causes of action thereunder. The provisions of the more specific
      WGCA take precedence over the provisions of the more general
      savings statute.

Id. The court added that

      [h]ad the legislature intended that the period for filing an action
      under Wyo. Stat. Ann. § 1–39–114 be tolled in the circumstances
      covered by the savings statute, it would have said so in the statute, as
      it did for actions involving children seven years of age or younger,
      and actions involving untimely responses by governmental entities to
      presented claims.




                                         -6-
Id. 4

                         B. Retroactive Application of Hall

        Garman argues that the holding in Hall should not be applied retroactively

to her action, which she filed before the decision in Hall. The School District

argues that this is a “non-issue” because Garman’s case was pending at the time

Hall was decided, and it is therefore subject to the holding in that case. The

School District cites no case to support this proposition. If the retroactivity

question in this case involved a decision of the United States Supreme Court on a

rule of federal law, the School District would undoubtedly be correct. That court

has said:

        When this Court applies a rule of federal law to the parties before it,
        that rule is the controlling interpretation of federal law and must be
        given full retroactive effect in all cases still open on direct review



4
      Regarding these exceptions to the one-year limitations period included in
§ 1-39-114, that section provides:

        In the case of a minor seven (7) years of age or younger, actions
        against a governmental entity or public employee acting within the
        scope of his duties for torts occurring after June 30, 1979 which are
        subject to this act are forever barred unless commenced within two
        (2) years after occurrence or until his eighth birthday, whichever
        period is greater. In no case shall the statute of limitations provided
        in this section be longer than any other applicable statute of
        limitations. In the absence of applicable insurance coverage, if the
        claim was properly filed, the statute shall be tolled forty-five (45)
        days after a decision by the entity, if the decision was not made and
        mailed to the claimant within the statutory time limitation otherwise
        provided herein.

                                          -7-
      and as to all events, regardless of whether such events predate or
      postdate our announcement of the rule.

Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). But the Wyoming

Supreme Court has not applied this blanket rule to its decisions on state-law

issues. See Farbotnik v. Wyoming, 850 P.2d 594, 601-02 (Wyo. 1993) (refusing

to apply new rule announced by Wyoming Supreme Court in case still open on

direct review at the time of the decision).

      The Wyoming Supreme Court has “acknowledged [its] authority to

determine the manner in which decisions will be given retroactive application.”

Id. at 602. Nonetheless, it remains the general rule in Wyoming

      that the ruling of a court is deemed to state the true nature of the law
      both retrospectively and prospectively. In civil cases, at least,
      constitutional law neither requires nor prohibits retroactive operation
      of an overruling decision, but in the vast majority of cases a decision
      is effective both prospectively and retrospectively, even an
      overruling decision. Whether the general rule should be departed
      from depends on whether a substantial injustice would otherwise
      occur.

Goshen Irrigation Dist. v. Wyo. State Bd. of Control, 926 P.2d 943, 949 (Wyo.

1996) (quotation omitted); see also Bd. of Cnty. Comm’rs v. Laramie Cnty. Sch.

Dist. No. 1, 884 P.2d 946, 957 (Wyo. 1994) (“We must consider equitable and

other principles with regard to whether our decision will be prospective or

otherwise.”). The Wyoming Supreme Court has not opined on whether its

decision in Hall is, or should be, limited to prospective application. Our task,




                                          -8-
then, is to determine whether that court would apply its decision in Hall to

Garman’s WGCA claim.

      The Wyoming Supreme Court has, on occasion, stated explicitly that a

decision will be applied prospectively. See, e.g., Clarke v. Beckwith, 858 P.2d

293, 296 (Wyo. 1993). Certain language in a decision can also be indicative of an

intent to apply a decision only prospectively. See Adkins v. Sky Blue, Inc.,

701 P.2d 549, 553-54 (Wyo. 1985) (noting terms such as “hereafter,” “thereafter,”

“shall be,” and “henceforth” used in a decision “speak to prospective operation”);

see also Harvey v. Gen. Mtrs. Corp., 739 P.2d 763, 765 (Wyo. 1987) (finding that

if court had intended only prospective application it would have stated its intent

in clear terms).

      The decision in Hall contains no language indicating that the court intended

it to be applied only prospectively. But that does not end the analysis. The

Wyoming Supreme Court considers the following three factors in determining the

retroactivity question: (1) “the decision to be applied nonretroactively must

establish a new principle of law, either by overruling clear past precedent on

which litigants may have relied, or by deciding an issue of first impression whose

resolution was not clearly foreshadowed”; (2) the court must “weigh the merits

and demerits in each case by looking to the prior history of the rule in question,

its purpose and effect, and whether retrospective operation will further or retard

its operation”; and (3) the court will “weigh[] the inequity imposed by retroactive

                                         -9-
application, for where a decision of this Court could produce substantial

inequitable results if applied retroactively, there is ample basis in our cases for

avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Wyo. State

Tax Comm’n v. BHP Petroleum Co., 856 P.2d 428, 438 (Wyo. 1993) (quotations

and brackets omitted). 5

      Regarding the first element of the retroactivity analysis, Garman argues

that Hall decided an issue of first impression that was not clearly foreshadowed.

She points to Haney v. Cribbs, 148 P.3d 1118 (Wyo. 2006), as the Wyoming

Supreme Court’s most recent interpretation of the savings statute. In Haney the

court ruled that the savings statute was applicable, but Haney is inapposite

because it did not involve a claim under the WGCA against a governmental

entity. See id. at 1119-20, 1125. Garman next argues that the holding in Hall

was not clearly foreshadowed, based upon other courts’ conflicting decisions on

the same issue and the Wyoming Supreme Court’s statement in Hall that the

dissent’s interpretation of the statute was plausible. We disagree. The court in



5
       This test is derived from Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07
(1971), a case which the United States Supreme Court overruled in Harper with
respect to the Court’s federal-law decisions that it has applied to the parties
before the Court, see 509 U.S. at 97-98 (“[T]he legal imperative to apply a rule of
federal law retroactively after the case announcing the rule has already done so
must prevail over any claim based on a Chevron Oil analysis.” (quotations and
brackets omitted)). But as explained above, the Wyoming Supreme Court
continues to consider equitable principles in determining whether a decision on
state law will be applied only prospectively.

                                         -10-
Hall acknowledged that courts in other states had reached a contrary conclusion,

but distinguished those cases from the law in Wyoming because their reasoning

was applicable “[w]here sovereign immunity is not the rule, or where a statute

allows application of the savings statute to governmental claims.” 238 P.3d at

584. And while the court did not dismiss the dissent’s interpretation as

implausible, it explained why the majority’s construction of § 1-39-114 followed

from prior precedent:

      This Court has for years construed the WGCA as “closed-ended,”
      with governmental liability specifically delimited by the mandates of
      the Act. One of those mandates is the “forever barred” language of
      Wyo. Stat. Ann. § 1–39–114. In the instant case, the majority
      opinion conforms to that precedent by concluding that, had the
      legislature intended for the savings statute to apply to WGCA
      actions, it would have added that exception to those set forth in Wyo.
      Stat. Ann. § 1–39–114.

Id. at 585 n.4.

      The second step of the retroactivity analysis requires an examination of the

purposes of the rule established in Hall and whether they would be furthered by

retroactive application. See BHP Petroleum Co., 856 P.2d at 438; Hanesworth v.

Johnke, 783 P.2d 173, 177 (Wyo. 1989). Garman misconstrues the focus of this

analysis when she asserts that the question is instead the purpose of the savings

statute, its prior history, and whether retroactive operation of Hall will retard its

operation. The intent of the rule announced in Hall—that the savings statute does

not apply to WGCA claims—was to preserve the limited extent to which


                                         -11-
sovereign immunity had been abrogated in Wyoming, as strictly outlined by the

legislature in the WGCA. See 238 P.3d at 584-85. That purpose is furthered by

application of the rule to Garman’s claim in Garman II, which was “forever

barred” under § 1-39-114 when she failed to file her complaint within one year of

her notice of claim.

      Regarding the third factor, Garman argues that, because she relied on the

savings statute in filing her complaint in Garman II, it would be inequitable to

apply the subsequent ruling in Hall to bar her claim. She maintains that, due to a

jurisdictional pleading requirement that resulted in dismissal of her complaint in

Garman I—a requirement that has since been overruled by the Wyoming Supreme

Court—she would be denied all relief.

      We are not persuaded that application of Hall in this case will result in

substantial injustice. The Wyoming Supreme Court has, for example, found that

the equities balanced in favor of prospective application of a decision in

circumstances where retroactive application would result in accounting and

auditing problems, and a multitude of claims and litigation, see Laramie Cnty.

Sch. Dist. No. 1, 884 P.2d at 960; where retroactive application would disturb

established property rights that “were defined according to law unexpectedly

declared invalid,” Hanesworth, 783 P.2d at 177; and where a decision creating a

new cause of action would subject a party to liability who would not have been

liable under the previously existing law, see Adkins, 701 P.2d at 553; see also

                                        -12-
Clarke, 858 P.2d at 296 (stating that new rule redefining landowner liability

would be applied prospectively except as to the parties in the current action).

      None of these or any similar consequences would occur as a result of

retroactive application of Hall to Garman’s claim. The Wyoming Supreme Court

did not withhold application of its decision in Hall to the appellant’s claim in that

case, which involved a procedural history similar to Garman’s claim. See

238 P.3d at 585 (affirming dismissal of complaint as time barred). Moreover, any

hardship to Garman is outweighed by the purpose of the ruling in Hall: to

preserve the rule of sovereign immunity except as strictly defined in the WGCA.

See BHP Petroleum Co., 856 P.2d at 439 (rejecting appellants’ plea for

prospective application of a decision, where hardship to appellants was

outweighed by benefit of the rule established in that decision, which provided for

equal and uniform taxation).

                        C. Application of Hall after Brown

      Garman’s final contention is that the Wyoming Supreme Court’s later

decision in Brown v. City of Casper calls into question that court’s reasoning in

Hall. In Brown, the court overruled its prior decisions holding that a trial court

lacks subject matter jurisdiction over a WGCA claim if the complaint fails to

allege compliance with applicable statutory and constitutional requirements. See

248 P.3d at 1139. Under the holding in Brown, a complaint against a

governmental entity must still allege compliance with statutory and constitutional

                                         -13-
requirements, but a failure to do so is no longer a jurisdictional defect and can be

cured by amendment, so long as a notice of claim was properly presented. See id.

      Garman maintains that Brown “undercuts the basic jurisdictional premise”

relied upon in Hall “when it held that ‘[t]he appellant’s second complaint was not

filed within the specified period of limitations set forth in Wyo. Stat. Ann.

§ 1-39-114, and therefore, the district court never obtained jurisdiction over the

action.’” Aplt. Br. at 12-13 (quoting Hall, 238 P.3d at 585). She claims that “[i]t

is therefore highly unlikely that the Wyoming Supreme Court would have decided

Hall in the same way if Brown had preceded it.” Id. at 13. Garman does not

further develop this argument.

      We disagree with Garman’s contention. The court held in Brown:

      [A] litigant’s failure to allege compliance with the constitutional and
      statutory requirements does not and cannot affect a court’s subject
      matter jurisdiction to act. Pursuant to the constitution and the
      statute, the district courts have jurisdiction to hear and decide actions
      brought against governmental entities, whether or not compliance is
      alleged, if a notice of claim complying with the constitutional and
      statutory requirements has been presented. District courts also have
      jurisdiction to allow the amendment of a complaint to allege
      presentation of a notice of claim complying with the statute and
      constitution when such a notice was in fact timely presented.

248 P.3d at 1146-47 (citation omitted and second emphasis added). Thus, Brown

made clear that a complaint’s failure to satisfy the special, judicially created

pleading requirements does not deprive a court of jurisdiction to hear a WGCA

claim. But the decision also reaffirmed that Wyo. Stat. Ann. § 1-39-113, which


                                         -14-
defines the manner for filing a notice of claim under the WGCA and sets a

two-year deadline for doing so, is a jurisdictional non-claim statute. See 248 P.3d

at 1146 (citing Bell v. Schell, 101 P.3d 465 (Wyo. 2004), which held that “the

timely presentment of a notice of claim is a condition precedent to suit, is

jurisdictional, and cannot be waived,” id. at 475).

      In its conclusion in Hall that the savings statute was not intended to extend

the time period for filing a claim under the WGCA, the court focused on the

legislature’s clear statement in § 1-39-114 that a claim not filed within one year

of the notice of claim is “forever barred.” Hall, 238 P.3d at 584 (quotation

omitted). The court determined that, “[u]nder the specific language of the statute,

and in the particular circumstances of sovereign immunity being the WGCA’s

‘default position,’ the [appellant’s] second suit was time barred.” Id. The court

then stated its holding in jurisdictional terms:

      [W]e have noted many times that sovereign immunity was abrogated
      by the Wyoming legislature only as strictly outlined in the WGCA.
      The courts of Wyoming do not have jurisdiction over governmental
      claims that do not meet the conditions of the Act. The appellant’s
      second complaint was not filed within the specified period of
      limitations set forth in Wyo. Stat. Ann. § 1-39-114, and therefore, the
      district court never obtained jurisdiction over the action.

Id. at 584-85 (footnote omitted). In so holding, the court appears to have

implicitly decided the question left open in Bell v. Schell—whether § 1-39-114 is

a special substantive statute of limitations, see 101 P.3d at 474 n.9—by according

that section a “jurisdictional effect,” id. at 472 (quotation omitted). We see no

                                         -15-
conflict between the holdings in Brown and Hall. As the district court aptly

stated,

      [T]he two cases are consistent. Under Brown, the WGCA’s grant of
      jurisdiction cannot be undone by a judicially-created pleading rule.
      Under Hall, the WGCA’s limit on jurisdiction cannot be undone by
      application of the savings statute. Together they stand for the
      unremarkable proposition that the plain language of the WGCA
      strictly defines the State of Wyoming’s limited abrogation of
      sovereign immunity.

Aplt. App. at 179.

                                 IV. Conclusion

      The judgment of the district court is AFFIRMED. Garman’s Motion for

Certification of Questions of State Law is DENIED.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




                                       -16-
