                                                                                FILED
                                                                    United States Court of Appeals
                                        PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      March 12, 2019

                                                                       Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

 KESHIA PORTER, as the wrongful death
 representative for the claimants entitled to
 recover for the wrongful death of Delandis
 Richardson, deceased,

       Plaintiff - Appellant,

 v.                                                        No. 18-8028

 FORD MOTOR COMPANY,

       Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                           (D.C. No. 1:17-CV-00133-ABJ)
                       _________________________________

Vincent L. Marable III, Paul Webb, P.C., Wharton, Texas (Vance Countryman, Vance T.
Countryman, P.C., Lander, Wyoming, J. Hunter Craft and Laura A. Cockrell, Craft Law
Firm, P.C., Houston, Texas, with him on the briefs), for Plaintiff-Appellant.

Katherine B. Wellington, Hogan Lovells US LLP, Washington, D.C. (Jessica L.
Ellsworth, Hogan Lovells US LLP, Washington, D.C., and Richard A. Mincer, Hirst
Applegate, LLP, Cheyenne, Wyoming, with her on the brief), for Defendant-Appellee.
                       _________________________________

Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

LUCERO, Circuit Judge.
                    _________________________________
      Keshia Porter appeals the district court’s dismissal of her complaint as time

barred. The district court concluded that this action is untimely under Wyo. Stat.

§ 1-38-102 because Porter did not file a petition for appointment as a wrongful death

representative (“WDR”) within two years of her husband’s death. However, such a

petition was filed by another putative representative within two years and Porter was

appointed WDR in that state court action. She then filed the present suit within thirty

days of her appointment. On these facts, we conclude that Porter’s complaint is

timely under Wyo. Stat. § 1-38-103(b)(ii). Exercising jurisdiction under 28 U.S.C.

§ 1291, we reverse and remand.

                                           I

      Porter’s husband, Delandis Richardson, was killed in an auto accident in

Campbell County, Wyoming, on November 25, 2014.1 Within two years, on

November 21, 2016, Vance Countryman filed a “Petition/Action for the Appointment

of Wrongful Death Representative” in the District Court of Campbell County,

Wyoming.2 Countryman requested appointment as Richardson’s WDR under Wyo.

Stat. §§ 1-38-101 to 105.


      1
         Because this case was decided on a motion to dismiss, we take the following
facts from the complaint. See Acosta v. Jani-King of Okla., Inc., 905 F.3d 1156,
1158 (10th Cir. 2018).
      2
        Although the records from the state court action were not included in the
complaint, they are nevertheless properly considered. A court may look to
documents subject to judicial notice in deciding a motion to dismiss. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). And records from a related case may
be judicially noticed. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605
F.2d 1169, 1172 (10th Cir. 1979).
                                           2
      The state court judge expressed concern that appointing Countryman, who

would be acting as an attorney in the wrongful death suit, could pose ethical

problems. On April 27, 2017, Porter filed an “Amended Petition/Action for the

Appointment of Wrongful Death Representative” asking the court to appoint her as

Richardson’s WDR. It stated that “[t]his petition is ‘made in a separate action

brought solely for appointing the wrongful death representative’ pursuant to Wyo.

Stat. Ann. § 1-38-103(b).” The document was filed in the existing state court action.

On July 10, 2017, the court appointed Porter the WDR for Richardson.

      Porter then filed this action against Ford Motor Company on August 7, 2017,

as Richardson’s WDR. Ford moved to dismiss, arguing that Porter’s claims were

barred by Wyoming’s two-year limitations period for wrongful death actions. See

Wyo. Stat. § 1-38-102(d). The district court agreed and dismissed the complaint with

prejudice. Porter timely appealed.

                                           II

      We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Acosta, 905

F.3d at 1158. In so doing, we accept as true all well-pled factual allegations and

construe them in the light most favorable to the plaintiff. Id. “A federal court sitting

in diversity applies state law for statute of limitations purposes.” Burnham v.

Humphrey Hosp. REIT Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005).

      Under Wyoming law, “[t]he right to sue for wrongful death is created purely

by statute.” Corkhill v. Knowles, 955 P.2d 438, 442 (Wyo. 1998). Any wrongful

death claim must be brought in the name of the decedent’s WDR. Wyo. Stat.

                                           3
§ 1-38-102(a). “An action for wrongful death shall be commenced within two (2)

years after the death of the decedent.” § 1-38-102(d). However, “[i]f an action to

appoint the [WDR] is properly filed, the limitation period under [§] 1-38-102(d) and

any other applicable limitation periods shall be tolled from the time the action is filed

until thirty (30) days after an order appointing the [WDR] is entered.”

§ 1-38-103(b)(ii). The Wyoming Supreme Court has explained that this limitations

period is a condition precedent to filing suit. Corkhill, 955 P.2d at 442.

       The district court stated that the dispositive question is whether Porter’s

Amended Petition relates back to the Petition filed by Countryman. We conclude

that a relation back inquiry is unnecessary. The Wyoming statute sets forth a

straightforward conditional statement: “If an action to appoint the [WDR] is properly

filed,” then “the limitation period . . . shall be tolled from the time the action is filed

until thirty (30) days after an order appointing the [WDR] is entered.”

§ 1-38-103(b)(ii). The antecedent was satisfied when the Petition to appoint a WDR

was filed within two years of Richardson’s death, on November 21, 2016.

Accordingly, the limitations period was tolled. There is no dispute that Porter filed

this case within thirty days of her appointment as WDR. Her claim is thus timely.

       In arguing to the contrary, Ford notes that Porter filed her Amended Petition

after two years had passed and contends the date of the Amended Petition is

determinative. But the statute does not require the individual who is ultimately

appointed WDR to initiate the action; it applies whenever “an action to appoint the

[WDR] is properly filed.” Id. Ford similarly treats the Amended Petition as if it

                                             4
were filed as an independent action, and thus outside the two-year period. But the

state court did not open a new case file upon the filing of the Amended Petition,

instead filing it in the existing action. That decision was consistent with the statute,

which indicates that “[a]fter an action to appoint [WDR] is filed . . . [n]o subsequent

action for appointment may be maintained.” § 1-38-103(b)(i).

      Ford points out that Porter’s Amended Petition states it was “made in a

separate action brought solely for appointing the wrongful death representative,”

quoting § 1-38-103(b). And the company criticizes Porter for failing to caption her

Amended Petition as a motion to intervene. See § 1-38-103(b) (stating that “[i]n any

action in which appointment of the [WDR] is sought,” a person claiming to qualify

“may intervene as a matter of right”). Ford thus contends that Porter failed to

“strictly comply[]” with a condition precedent. Harmon v. Star Valley Med. Ctr.,

331 P.3d 1174, 1188 (Wyo. 2014). But these arguments are, in essence, improper

collateral attacks on the state court decision. See Halliburton Energy Servs., Inc. v.

Gunter, 167 P.3d 645, 650 (Wyo. 2007) (holding a defendant lacks standing to

collaterally attack the appointment of a WDR, absent facial invalidity of the ruling).

The state court appointed Porter as WDR in the same action that was filed within the

limitations period, and Porter filed suit within thirty days of that appointment. She

thus complied strictly with the statute’s requirements.

      Ford also argues Countryman’s Petition was not “properly filed” within the

meaning of § 1-38-103(b)(ii) because the state court expressed concerns about the

ethical problems his appointment would pose. But as we have held in a different

                                            5
context, the phrase “properly filed” refers to “filing requirements” such as “the place

and time of filing” or “the payment or waiver of any required filing fees.”

Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted).

The phrase does not refer to issues that “require analysis in some manner of the

substance of the claims.” Id. at 1211.

                                            III

      For the foregoing reasons, we REVERSE and REMAND for further

proceedings consistent with this opinion.




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