                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         January 7, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 JIYING WEI,

       Plaintiff - Appellant,

 v.                                                         No. 18-8011
                                                   (D.C. No. 2:17-CV-00150-NDF)
 UNIVERSITY OF WYOMING                                        (D. Wyo.)
 COLLEGE OF HEALTH SCHOOL
 PHARMACY; JANELLE KRUEGER,
 University of Wyoming Clinical Professor;
 TONJA WOODS, University of Wyoming
 Associate Dean of Students; LINDA
 MARTIN, University of Wyoming former
 Dean of School of Pharmacy, individually
 and in their official capacity,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Jiying Wei appeals the district court’s judgment dismissing her complaint with

prejudice based on claim preclusion and the statute of limitations, and its order



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
denying her post-judgment motion. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

                                   BACKGROUND

      Wei was a doctoral candidate in the School of Pharmacy (School) at the

University of Wyoming (University). In early July 2015, after she had been

dismissed from the pharmacy program, Wei filed a pro se complaint and, soon

thereafter, an amended pro se complaint (together, the 2015 Complaint). She alleged

that in 2012, she experienced a bout of depression after being wrongly accused of

plagiarism during a clinical rotation in South Dakota by a person at the rotation who

disliked her, and she attempted suicide in an effort to prove her innocence. She also

claimed that she failed to receive a passing grade in the rotation due to lack of

professionalism, that she had lost her intern license and was unable to work, and that

actions taken by the School constituted a “civil rights violation under disability due

to depression.” Aplt. App. at 12. She alleged that she was dismissed from the

School on July 29, 2013, and from the University on February 16, 2014. Id. at 13.

She asked the court to allow her to graduate from the program, to sit for a board

exam, and for damages for the wrongful plagiarism accusation, the delay in

graduation, and her suffering.

      The School filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). The district court granted the motion and dismissed the 2015 Complaint

with prejudice because the court was unable to draw a reasonable inference from the

facts alleged that the School was liable for the alleged misconduct. Wei did not

                                           2
appeal that judgment or the denial of her post-judgment motion asking the court to

change the dismissal to one without prejudice.

      On September 9, 2017, Wei filed a pro se complaint against the School, the

University,1 and three of its employees, asserting a due process claim under

42 U.S.C. § 1983 and claims of disability discrimination under the Americans with

Disabilities Act (ADA) and the Rehabilitation Act. She alleged that during her South

Dakota rotation in August 2012, she experienced a suicidal crisis and was diagnosed

with depression. The School placed her on a medical leave of absence and

conditioned her return on completion of counseling in Cheyenne, Wyoming. In

October 2012, after two months of counseling, she returned to the program and was

provided with new rotation assignments in South Dakota and Casper, Wyoming, for

four months. She alleged that the School ignored her request for an assignment

closer to her counselor and, while on rotation in South Dakota, she experienced

depression with withdrawal, crying, and communication issues. She claimed that

because of her communication issues, she did not receive a passing grade due to lack

of professionalism. She appealed the grade to both the School and the University and

asked for permission to repeat the rotation at a different site, but both appeals were

denied. For relief in this action, Wei sought reinstatement to and graduation from the

program, the ability to sit for the board exam, and damages.



      1
        Although the parties debate whether Wei named the School, the University,
or both, and whether only the University is the proper institutional defendant, our
disposition does not require us to resolve the issue.
                                           3
      Because Wei sought to proceed in forma pauperis, the district court screened

her complaint pursuant to 28 U.S.C. § 1915A. The court dismissed some claims but

concluded that she had alleged sufficient facts regarding the decision to place her on

medical leave in August 2012 to state a due process claim under § 1983. The court

also determined she had adequately stated failure-to-accommodate claims under the

ADA and the Rehabilitation Act concerning the decision to place her on medical

leave and the disregard of her request to be assigned to a rotation closer to her

counselor in October 2012.

      Defendants filed a Rule 12(b)(6) motion to dismiss based in relevant part on

res judicata, also known as claim preclusion, and the statute of limitations. By then

Wei had obtained counsel, who filed a response that was two pages long and

contained two arguments that read, in full:

      (1) “Res Judicata is more properly raised [as] a defense in an Answer pursuant

to [Fed. R. Civ. P.] 8 than in a Rule 12(b)(6) Motion to Dismiss for failure to state a

cause of action.” Aplt. App. at 108.

      (2) “The court has found that the complaint states a cause of action and has

ordered the defendant to answer the complaint. At this time the defendant may raise

the issue of Res Judicata and provide evidence of such.” Id. at 108–09.

      Defendants responded that under Miller v. Shell Oil Co., 345 F.2d 891, 893

(10th Cir. 1965), they could raise claim preclusion and statute of limitations in a

Rule 12(b)(6) motion. Aplt. App. at 111.



                                           4
      The district court granted the motion to dismiss. The court concluded that the

elements of claim preclusion were met and therefore dismissed with prejudice the

claims against the School and the individual defendants in their official capacities. It

also concluded that Wei’s due process claim accrued in August 2012, when the

School placed her on a medical leave of absence, more than five years before she

filed her complaint in this action in September 2017 and thus beyond the four-year

limitations period. The court further determined that her ADA/Rehabilitation Act

claims accrued no later than August 25, 2013, when she was terminated from the

pharmacy program after receiving the failing rotation grade. The court derived that

date by taking judicial notice of a copy of a termination letter filed in Wei’s previous

action bearing that date. Those claims, the court concluded, were therefore also

outside the four-year statute of limitations as to all defendants, including the

individual defendants in their individual capacities.

      Wei filed a motion under Federal Rules of Civil Procedure 59 and 60, arguing

that because the affirmative defenses were not set out in an answer, she was deprived

of an opportunity to argue that the previous dismissal with prejudice “was mistakenly

entered because the dismissal was not based upon the merits, but upon the pro

se complaint of the plaintiff without being granted leave to amend.” Id. at 128. She

also argued that the district court was wrong to apply the statute of limitations

because she alleged in the prior action that her cause of action accrued on

February 16, 2014, when the University denied her appeal of the grade that led to her



                                            5
termination from the program, and thus her complaint in this action was filed within

the four-year limitations period.

       The district court denied the motion. It concluded that defendants properly

raised the two affirmative defenses in a Rule 12(b)(6) motion. The district court also

noted that it could take judicial notice of its own files (i.e., Wei’s prior case) when

considering a Rule 12(b)(6) motion. The court further concluded that any new

arguments in the Rule 59/60 motion did not justify relief because such a motion is

not the proper vehicle to advance new arguments that were available at the time of

the original motion.

       Wei filed a notice of appeal from the judgment and an amended notice of

appeal from the denial of the Rule 59/60 motion.

                                     DISCUSSION

       We review a district court’s disposition of a Rule 12(b)(6) motion de novo.

Warnick v. Cooley, 895 F.3d 746, 750 (10th Cir. 2018). And our review of a district

court’s denial of motions under Rule 59 and 60 is for abuse of discretion. Walters v.

Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013).

       On appeal, Wei contends that (1) claim preclusion does not apply because she

did not have a full and fair opportunity to litigate the prior matter, and (2) there is

insufficient evidence regarding accrual of the claims to dismiss based on the statute

of limitations. Neither of these arguments is preserved for appellate review because

Wei did not raise them in her response to defendants’ Rule 12(b)(6) motion.

Accordingly, these arguments are waived on appeal. See Impact Energy Res., LLC v.

                                             6
Salazar, 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (explaining that failure to raise

issue at appropriate time in the district court waives appellate review). To the extent

she raised these arguments in her Rule 59/60 motion, we conclude that the district

court did not abuse its discretion in declining to consider them because motions

under Rule 59 and Rule 60 are inappropriate for advancing new arguments or

supporting facts that could have been raised in prior briefing. See Servants of the

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

       Wei has preserved for appellate review portions of one threshold procedural

argument—that it was improper for defendants to raise the affirmative defenses of

claim preclusion and the statute of limitations in a Rule 12(b)(6) motion without

having first raised them in an answer. We disagree. In Miller v. Shell Oil Co., we

held that “a defendant may raise an affirmative defense by a motion to dismiss for the

failure to state a claim.” 345 F.2d 891, 893 (10th Cir. 1965). More specifically, we

have explained that it is appropriate to resolve a statute of limitations defense on a

Rule 12(b)(6) 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) (internal quotation marks omitted). Although

here the district court gleaned the date it found relevant for the limitations calculation

by taking judicial notice of a filing in Wei’s first case, it was entitled to do so. See

Warnick, 895 F.3d at 754 n.6 (observing that in reviewing a Rule 12(b)(6) motion, a




                                            7
court can consider “matters of which a court may take judicial notice”).2 And in

Tri-State Truck Ins., Ltd. v. First National Bank of Wamego, 564 F. App’x 345

(10th Cir. 2014), we reasoned that “‘when all relevant facts are shown by the court’s

own records, of which the court takes notice,’” the affirmative defense of claim

preclusion “‘may be upheld on a Rule 12(b)(6) motion without requiring an answer.’”

Id. at 347 (quoting Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992)).3

       The two Supreme Court cases Wei relies on are not to the contrary because

they do not state that affirmative defenses must be raised in an answer or cannot be

raised in a Rule 12(b)(6) motion, but only that claim preclusion is an affirmative

defense “that must be pleaded,” Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,

402 U.S. 313, 350 (1971), and “[o]rdinarily, it is incumbent on the defendant to plead

and prove such a defense,” Taylor v. Sturgell, 553 U.S. 880, 907 (2008). And the

four cases from other circuits she cites are either not on point or are contrary to Tenth

Circuit precedent.4 In sum, we see no error in the district court’s conclusion that


       2
        In her reply brief, Wei argues for the first time that this was improper, but we
do not ordinarily consider arguments not properly presented to the district court,
Impact Energy Res., LLC, 693 F.3d at 1246 n.3, or those raised for the first time on
appeal in a reply brief, Sierra Club, 816 F.3d at 676 n.9. We decline to do so here.
       3
        We cite to this unpublished case for its persuasive value consistent with
10th Cir. R. 32.1.
       4
        Those cases are: O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir.
2015) (“[A]lthough a plaintiff need not anticipate or overcome affirmative defenses
such as those based on the statute of limitations, if a plaintiff alleges facts sufficient
to establish a statute of limitations defense, the district court may dismiss the
complaint on that ground”); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023
                                                                                (continued)
                                            8
defendants could properly raise their affirmative defenses in the first instance in a

Rule 12(b)(6) motion.

                                    CONCLUSION

      The district court’s judgment and its order denying Wei’s post-judgment

motion are affirmed.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




(9th Cir. 2010) (“Although Rule 8 requires affirmative defenses to be included in
responsive pleadings, absent prejudice to the plaintiff, the district court has discretion
to allow a defendant to plead an affirmative defense in a subsequent motion.”);
United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (“Dismissal under
Rule 12(b)(6) was irregular, for the statute of limitations is an affirmative defense. A
complaint states a claim on which relief may be granted whether or not some defense
is potentially available.” (citation omitted)); and Xechem, Inc. v. Bristol-Myers
Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Orders under Rule 12(b)(6) are not
appropriate responses to the invocation of defenses, for plaintiffs need not anticipate
and attempt to plead around all potential defenses. Complaints need not contain any
information about defenses and may not be dismissed for that omission.”).
                                            9
