                Filed 4/25/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 114


Robin E. Ayling, individually and as parent of
Blake Christopher Ayling, deceased,                      Plaintiff and Appellant

      v.

Mary Ann Sens, M.D., Ph.D., individually, as
Grand Forks County Coroner (public official);
as North Dakota State Forensic Examiner
Pathologist Designee (public official); and as
Co-Director of the University of North Dakota
School of Medicine and Health Sciences
Forensic Pathology Practice Facility,                  Defendant and Appellee

      and

University of North Dakota, a public University
of the North Dakota University System, Dr.
Mark Koponen, individually and as Co-Director
of the University of North Dakota School of
Medicine and Health Sciences Forensic
Pathology Practice Facility, and Dr. Joshua
Wynn individually and in his official capacity as
Dean of the University of North Dakota School
of Medicine and Health Sciences including the
Forensic Pathology Practice Facility,                 Defendants and Appellees

      and

Grand Forks County, as a political subdivision
and its States Attorney David Jones in his official
capacity and individually, and its Commissioners
in their official capacity as a Board and
individually, specifically Gary Malm, David Engen,
Tom Falck, Diane Knauf, and Cynthia Pic,              Defendants and Appellees
      and

Dr. William Massella, individually and in his
official capacity as North Dakota State Forensic
Examiner,                                                 Defendant and Appellee


                                  No. 20180231


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Steven E. McCullough, Judge.

      AFFIRMED.

      Opinion of the Court by Tufte, Justice.

       Robin E. Ayling, self-represented, Champlin, Minnesota, plaintiff and
appellant.

      Matt A. Paulson (argued) and Randall S. Hanson (on brief), Special Assistant
Attorneys General, Grand Forks, North Dakota, for defendants and appellees Mary
Ann Sens, M.D., Ph.D., Dr. Mark Koponen, Dr. Joshua Wynn, and Dr. William
Massella.

      Joseph E. Quinn (argued) and Daniel L. Gaustad (on brief), Grand Forks,
North Dakota, for defendants and appellees Grand Forks County, State’s Attorney
David Jones, and County Commissioners Gary Malm, David Engen, Tom Falck,
Diane Knauf, and Cynthia Pic.




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                                   Ayling v. Sens
                                   No. 20180231


       Tufte, Justice.
[¶1]   Robin Ayling appeals from a judgment dismissing her claims against Mary
Ann Sens, M.D., UND School of Medicine employees, and the Grand Forks County
State’s Attorney and Board of Commissioners relating to her son’s death. Ayling also
appeals from an order denying her motion to reconsider. The district court concluded
Ayling’s claims against the Defendants were untimely. We affirm.


                                          I
[¶2]   Ayling’s son, Blake Ayling, was a student at UND. He was last seen alive at
an on-campus party at approximately 1:30 a.m. on March 24, 2012. He was found
dead in the rail yard south of UND’s campus at approximately 6:30 a.m. to 7:00 a.m.
on March 24, 2012. Dr. Sens performed the autopsy on the same day. She determined
Blake Ayling was intoxicated, he had a 0.278 blood-alcohol concentration at the time
of death, he died from blood loss, and his death was accidental.
[¶3]   After learning of the autopsy results, Ayling questioned the blood-alcohol
concentration because Blake Ayling reportedly did not show signs of intoxication at
the party or before the party. Ayling met with Dr. Sens in April 2013, and Sens
explained the autopsy report and defended her conclusions.
[¶4]   On December 27, 2013, Ayling spoke with a forensic toxicologist who
questioned Dr. Sens’ methods in performing the autopsy. The toxicologist believed
Blake Ayling’s urine and vitreous humor should have been tested for alcohol to
corroborate the blood test.
[¶5]   Ayling sued Dr. Sens, UND School of Medicine employees, and Grand Forks
County employees in February 2017, alleging Sens failed to competently perform a
medical autopsy as a part of the investigation of Blake Ayling’s death. Ayling alleged
the other Defendants failed to properly supervise Dr. Sens. After serving and filing

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her complaint, Ayling requested numerous documents from the Defendants through
discovery. The Defendants moved to quash or stay the discovery, arguing that
dispositive motions would be filed. The district court stayed discovery, recognizing
“that judicial economy will be best served by staying all discovery pending the
outcome of the Defendants’ dispositive Motions.”
[¶6]   The Defendants brought motions to dismiss and for summary judgment,
requesting dismissal of Ayling’s complaint under several legal theories, including
failure to bring her lawsuit within the three-year statute of limitations. In January
2018 the district court issued an order granting the Defendants’ motions for summary
judgment because Ayling sued more than three years after she discovered she had a
possible claim against the Defendants. The court concluded Ayling discovered she
had a possible claim no later than December 2013 when she spoke with the
toxicologist who indicated Dr. Sens’ autopsy of Blake Ayling may have been below
the standard of care. The court entered a judgment dismissing Ayling’s complaint.
[¶7]   Following entry of the judgment, Ayling filed a “motion to reconsider and/or
vacate pursuant to N.D.R.Civ.P. 59(j) and Rule 60(b)” relating to the district court’s
January 2018 order granting the Defendants’ motions for summary judgment. The
district court denied the motion.

                                           II
[¶8]   Ayling argues the district court erred in granting the Defendants’ motions for
summary judgment dismissing her complaint.
[¶9]   “An action barred by a statute of limitations generally is dismissed under the
summary judgment standards of N.D.R.Civ.P. 56.” Estate of Nelson, 2015 ND 122,
¶ 6, 863 N.W.2d 521 (citing Riemers v. Omdahl, 2004 ND 188, 687 N.W.2d 445;
Dimond v. State Bd. of Higher Ed., 2001 ND 208, 637 N.W.2d 692). Summary
judgment is a procedural device for the prompt resolution of a controversy on the
merits without a trial if there are no genuine issues of material fact or inferences that
can reasonably be drawn from the facts, or if the only issues to be resolved are
questions of law. Sorenson v. Bakken Invs., LLC, 2017 ND 127, ¶ 6, 895 N.W.2d
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302. In deciding whether the district court properly granted summary judgment, we
view the evidence in the light most favorable to the party opposing the motion, and
that party will be given the benefit of all favorable inferences that can reasonably be
drawn from the record. Id. Summary judgment is a question of law which we review
de novo on the entire record. Id.
[¶10] The district court concluded three statutes of limitation governed Ayling’s
claims against Sens and the other Defendants. See N.D.C.C. § 28-01-17(1) (three-
year statute of limitations for actions against coroners acting in their official capacity);
N.D.C.C. § 28-01-22.1 (three-year statute of limitations for actions against state
employees acting within the scope of their employment); N.D.C.C. § 32-12.1-10
(three-year statute of limitations for actions against political subdivisions and their
employees). The court concluded Ayling failed to bring her claims against Sens and
the other Defendants within three years of discovering she may have a claim.
[¶11] Ayling argues the district court erred in concluding her claims arose no later
than December 2013 when she consulted with a forensic toxicologist.
       Determining when a cause of action accrues is normally a question of
       fact, but it becomes a question of law when the material facts are
       undisputed. The statute of limitations generally begins to run from the
       commission of the wrongful act giving rise to the cause of action,
       unless an exception applies. The discovery rule is one exception, and
       under the discovery rule the accrual of a claim is postponed until the
       plaintiff knew, or with the exercise of reasonable diligence should have
       known, of the wrongful act and its resulting injury. We have said, after
       acquiring knowledge of facts sufficient to put a person of ordinary
       intelligence on inquiry, a party has a responsibility to promptly find out
       what legal rights result from those facts, and failure to do so will be
       construed against the party. The discovery rule does not require full
       knowledge of the extent of an injury; rather, it only requires the party
       be aware of an injury.
Frith v. The Park Dist. of the City of Fargo, 2016 ND 213, ¶ 11, 886 N.W.2d 836
(citations and quotations omitted).
[¶12] Ayling sued the Defendants in February 2017. The district court discussed
Ayling’s knowledge of facts related to her son’s autopsy:


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       In this case, the underlying event was the medical autopsy of Blake,
       occurring March 24, 2012. Plaintiff was made aware of the autopsy
       result on June 28, 2012. By December of 2013, she had hired an
       independent toxicologist in order to review Dr. [Sens’] autopsy. By
       this time, she had discovered, according to the allegations of her
       Complaint, various actions done or not done by Dr. Sens that raised
       questions: “[Ayling] had many questions about the coroner file
       documents and sent a letter to Dr. Sens dated March 24, 2013.” (See
       Complaint, ¶ 32). Ayling “drafted a confirming letter to Dr. Sens dated
       April 24, 2013 based on the notes she took . . . also had a few more
       questions as 2 hrs. was not enough . . . .” (See Complaint, ¶ 34). Then
       Ayling investigated the Pi Kappa Alpha fraternity as to the fraternity’s
       culpability. (See Complaint, ¶ 36). Ayling attempted to discern raw
       toxicology data, and when she could not, she hired an independent
       toxicologist to do so, speaking with the expert by telephone on
       December 27, 2013. (See Complaint, ¶ 39).
               These were facts that would put a reasonable person on notice
       of a potential claim. There is no dispute of material fact precluding
       summary judgment here, as there is only one reasonable interpretation:
       any plaintiff in Ayling’s position had sufficient facts to be put on notice
       of a claim by December [27,] 2013 because of the multitude and variety
       of facts Ayling relies on in her Complaint she discovered as part of her
       investigation.
[¶13] The record establishes Ayling began questioning the autopsy report after she
became aware of it in June 2012. She sent letters and emails to Dr. Sens about her
performance of the autopsy. She met with Dr. Sens in April 2013 to discuss the
autopsy. After speaking with the independent toxicologist on December 27, 2013,
Ayling was aware of facts sufficient to put her on notice of a potential claim, and she
failed to sue the Defendants within three years of that date. The district court did not
err in concluding that by December 27, 2013, Ayling knew or should have known she
had a possible claim against the Defendants. The court did not err in granting the
Defendants’ motions for summary judgment dismissing Ayling’s complaint.

                                           III
[¶14] Ayling argues the district court erred in its decisions relating to her discovery
requests. A district court has broad discretion over the scope of discovery, and its
discovery decisions will not be reversed on appeal unless the court abused its
                                           4
discretion. Johnson v. Mark, 2013 ND 128, ¶ 8, 834 N.W.2d 291. A court abuses its
discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it
misinterprets or misapplies the law, or its decision is not the product of a rational
mental process leading to a reasoned determination. Key Energy Servs., LLC v. Ewing
Constr. Co., Inc., 2018 ND 121, ¶ 8, 911 N.W.2d 319.
[¶15] After filing her lawsuit, Ayling requested a large amount of discovery from the
Defendants. In response, the Defendants filed motions to quash, for a protective
order, and for a stay of discovery. The Defendants argued the district court should
stay discovery because they would be filing dispositive motions, including motions
to dismiss and for summary judgment. The court stayed discovery, recognizing “that
judicial economy will be best served by staying all discovery pending the outcome of
the Defendants’ dispositive Motions.”
[¶16] After the Defendants filed their dispositive motions, Ayling requested the
district court to delay ruling on the motions to allow her to conduct additional
discovery under N.D.R.Civ.P. 56(f). In granting Grand Forks County’s summary
judgment motions on statute of limitations grounds, the court stated, “[Ayling] fails
to specifically identify any discovery that would defeat the motion based on the
statute of limitations.”
[¶17] Under N.D.R.Civ.P. 56(f), a district court may delay its ruling on a motion for
summary judgment to allow additional discovery “[i]f a party opposing the motion
shows by affidavit that, for specified reasons, it cannot present facts essential to
justify its opposition.” However, “when further discovery would not involve an issue
which is the subject matter of the summary judgment motion, a trial court does not
abuse its discretion in deciding the motion without granting the Rule 56(f) request.”
Perry Ctr., Inc. v. Heitkamp, 1998 ND 78, ¶ 10, 576 N.W.2d 505.
[¶18] After reviewing the record, we agree with the district court that Ayling’s
voluminous discovery requests did not relate to the statute of limitations issue and
would not have created an issue of material fact supporting denial of the summary
judgment motion. The court’s discovery decisions were not an abuse of discretion.

                                         5
                                         IV
[¶19] Ayling argues the district court erred in denying her motion to reconsider
and/or vacate.
[¶20] “North Dakota law does not formally recognize motions to reconsider.”
Kautzman v. Doll, 2018 ND 23, ¶ 9, 905 N.W.2d 744. A motion to reconsider is
generally treated as either a motion to alter or amend a judgment under N.D.R.Civ.P.
59(j), or as a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b).
Kautzman, at ¶ 9. We review a court’s denial of a motion for reconsideration under
the abuse of discretion standard. Kautzman, at ¶ 13.
[¶21] Ayling brought her “motion to reconsider and/or vacate pursuant to
N.D.R.Civ.P. 59(j) and Rule 60(b)” relating to the district court’s January 2018 order
granting the Defendants’ motions for summary judgment. Her motion or brief in
support did not identify a specific ground for relief under N.D.R.Civ.P. 60(b). Rule
60(b)(6), N.D.R.Civ.P., allows a district court to grant relief from an order or
judgment for “any other reason that justifies relief.” Rule 60(b)(6), N.D.R.Civ.P.,
“should be invoked only when extraordinary circumstances are present.” Kautzman,
2018 ND 23, ¶ 14, 905 N.W.2d 744 (quoting Hildebrand v. Stolz, 2016 ND 225, ¶ 16,
888 N.W.2d 197).
[¶22] The district court considered Ayling’s motion and found she was rearguing
issues raised earlier. The court stated, “The threshold for amending or vacating a
standing order is high, and it does not appear to the Court that there is anything
‘extraordinary’ or more to justify reconsideration of the order. The motion will be
denied.” We conclude the court did not abuse its discretion in denying Ayling’s
motion to reconsider.




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                                           V
[¶23] We have considered Ayling’s remaining arguments and conclude they are
either unnecessary to our decision or without merit. The judgment and order denying
Ayling’s motion to reconsider or vacate is affirmed.
[¶24] Jerod E. Tufte
      Daniel J. Crothers
      Robin A. Schmidt, D.J.
      Gerald W. VandeWalle, C.J.
      Cherie L. Clark, D.J.
[¶25] The Honorable Robin A. Schmidt, D.J., and the Honorable Cherie L. Clark,
D.J., sitting in place of McEvers, J., and Jensen, J., disqualified.




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