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

                             FOR THE TENTH CIRCUIT                        January 6, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 SARA CAHN,

          Plaintiff - Appellant,

 v.                                                        No. 19-2043
                                               (D.C. No. 1:18-CV-00396-JAP-SCY)
 TERRY M. WORD; TERRY M. WORD,                              (D. N.M.)
 P.C.,

          Defendants - Appellees.
                        _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, KELLY, and MORITZ, Circuit Judges.
                 _________________________________

      Plaintiff-Appellant Sara Cahn brought this action against

Defendants-Appellees Terry M. Word and Terry M. Word, P.C. (collectively

“Defendants”), alleging they committed malpractice in representing her in another

action. She now appeals the district court’s grant of summary judgment on statute-

of-limitations grounds and has also moved that we certify a related question of state




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
law. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

decision and deny her motion to certify.

                                  BACKGROUND

      This diversity action arises from a medical malpractice action brought by

Ms. Cahn in which she was represented by Defendants. Ms. Cahn filed the action in

New Mexico state court against Lovelace Health Systems and several physicians on

April 9, 2009. In her complaint, she sought to hold the defendants liable for failing

to inform her that a pelvic ultrasound performed at a Lovelace facility on May 19,

2006 had revealed a potentially cancerous mass on her ovary. She also alleged that a

doctor who reviewed the ultrasound informed her in an August 8, 2006 follow-up

consultation that she had ovarian cysts that were “nothing to worry about” and

diagnosed her with endometriosis. Jt. App. at 7. Because Ms. Cahn could not recall

the name of this doctor, Defendants identified him as “John Doe” physician in the

April 2009 complaint. Two years after the 2006 ultrasound and follow-up

appointment, Ms. Cahn was diagnosed with ovarian cancer when she sought

treatment for the same pelvic pain that had prompted the 2006 ultrasound.

      On July 1, 2010, through discovery received from Lovelace, Defendants

identified Dr. John Berryman as the physician who had misdiagnosed Ms. Cahn at the

August 8, 2006 consultation. Defendants amended the medical malpractice

complaint on July 9, 2010 to name Dr. Berryman as an individual defendant.

      Dr. Berryman moved for summary judgment, asserting Ms. Cahn’s claims

against him were barred by New Mexico’s three-year statute of repose for medical

                                           2
malpractice claims. See N.M. Stat. Ann. § 41-5-13 (1978). The state district court

denied his motion, ruling that though the statute of repose on Ms. Cahn’s claims

against Dr. Berryman had expired on August 8, 2009, before she amended her

complaint, she could nonetheless proceed against Dr. Berryman because application

of the statutory bar would violate her right to due process under the United States and

New Mexico constitutions.

      The state court certified its decision for interlocutory appeal, and in September

2012 Dr. Berryman filed an application for interlocutory appeal with the New

Mexico Court of Appeals. In the application, which Ms. Cahn reviewed,

Dr. Berryman alleged that she and Defendants could have identified him sooner

through available discovery procedures but failed to do so. The state court of appeals

denied Dr. Berryman’s application.

      Subsequently, in June 2013, Dr. Berryman and Ms. Cahn stipulated to a

conditional directed verdict and final judgment in which Dr. Berryman admitted his

liability to Ms. Cahn in the amount of $700,000, but reserved his right to appeal the

judgment on the ground that her claims against him were time-barred. Ms. Cahn

testified that at about this time she believed Defendants had made a mistake in failing

to identify Dr. Berryman earlier in the litigation.

      Dr. Berryman filed his appeal the following month. Ms. Cahn testified that by

this time she understood that another attorney, Felicia Weingartner, had taken over

her case. Though Defendants remained counsel of record until late 2014, when



                                            3
Defendant Word retired, Ms. Cahn testified that she did not think she had any contact

with him after the stipulated judgment was entered in June 2013.

      On April 30, 2015, the New Mexico Court of Appeals entered its decision in

Dr. Berryman’s appeal. It reversed the state district court, concluding Ms. Cahn’s

claims against the doctor were time-barred because they were filed after expiration of

the three-year statute of repose and were not subject to a due process exception to the

statutory bar.1 The New Mexico Supreme Court affirmed.

      Ms. Cahn filed the present action on April 27, 2018, asserting that Defendants

committed professional negligence and breached their contractual duty to provide

quality legal services by failing to identify Dr. Berryman within the statute of repose

for medical malpractice claims and timely name him as a defendant. Defendants

moved for summary judgment, arguing that Ms. Cahn’s claims against them were

barred by the applicable statute of limitations, which requires that legal malpractice

claims be brought within four years of accrual. The district court agreed that

Ms. Cahn’s claims accrued more than four years before she brought this suit, and

therefore granted Defendants’ motion and dismissed her claims with prejudice.




      1
         The New Mexico Court of Appeals held the ten-and-one-half-month period
between Ms. Cahn’s discovery that she had a medical malpractice claim against
Dr. Berryman (when she was diagnosed with ovarian cancer in September 2008) and
expiration of the three-year statute of repose on August 8, 2009, was a
constitutionally reasonable amount of time for her to learn Dr. Berryman’s name and
timely add him to her medical malpractice suit. See Cahn v. Berryman, 355 P.3d 58,
64 (N.M. Ct. App. 2015), aff’d, 408 P.3d 1012 (N.M. 2017).
                                           4
      Ms. Cahn timely appealed the district court’s ruling. She has also asked us to

certify a question of state law to the New Mexico Supreme Court that relates to one

of the arguments the district court rejected in its decision. We address her

certification motion, which concerns the continuous representation doctrine, in our

discussion below.

                                    DISCUSSION

      We review de novo the grant of summary judgment, viewing the factual record

and making reasonable inferences from it in the light most favorable to the

non-movant. Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019). Summary

judgment is warranted when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is material only if it might affect the outcome of the

suit under the governing law. And a dispute over a material fact is genuine only if

the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1265-66 (10th Cir.

2015) (internal quotation marks and citations omitted). Because this is a diversity

action, we apply the substantive law of the forum state, New Mexico, to the legal

questions before us. See Patterson v. PowderMonarch, LLC, 926 F.3d 633, 637

(10th Cir. 2019).

      Ms. Cahn raises three issues on appeal: (1) whether the district court erred in

ruling as a matter of law that her legal malpractice claim was untimely because it

accrued more than four years before she filed this action; (2) whether the district

                                           5
court erred in refusing to toll the statute of limitations pursuant to the continuous

representation doctrine; and (3) whether the district court erred in granting summary

judgment on her breach of contract claim. We address each issue in turn.

      A. Legal malpractice claims

      Under New Mexico law, a legal malpractice claim must be filed within four

years of the date of accrual. See Jaramillo v. Hood, 601 P.2d 66, 67 (N.M. 1979)

(applying N.M. Stat. Ann. § 37-1-4 (1978)). Accordingly, Ms. Cahn’s legal

malpractice claims against Defendants are untimely if they accrued before April 27,

2014, that is, four years before she filed this action. The district court held her

claims accrued no later than June 2013 and were therefore time-barred.

      A claim for legal malpractice in New Mexico accrues “when (1) the client

sustains actual injury and (2) the client discovers, or through reasonable diligence

should discover, the facts essential to the cause of action.” Sharts v. Natelson,

885 P.2d 642, 645 (N.M. 1994) (footnote and internal quotation marks omitted). The

essential facts the client must or should have discovered for the statute of limitations

to begin to run are that “he or she has suffered a loss and that the loss may have been

caused by the attorney’s wrongful act or omission.” Id. “The question [of] when a

client is deemed to have discovered an attorney’s malpractice and the resulting injury

is generally a question of fact, but where the undisputed facts show that the client

knew, or should have been aware of the negligent conduct on or before a specific

date, the issue may be decided as a matter of law.” Id. at 647 (internal quotation

marks and brackets omitted).

                                            6
       Ms. Cahn concedes that she suffered actual injury “at the time that Defendants

failed to timely name Dr. Berryman in the medical malpractice lawsuit,” Aplt.

Opening Br. at 10 n.2, because this alleged negligence ultimately led her to lose her

claim against Dr. Berryman. This concession is in accord with New Mexico law,

which holds that a party sustains actual injury “when malpractice results in the loss

of a right, remedy, or interest, or in the imposition of a liability . . . regardless of

whether future events may affect the permanency of the injury or the amount of

monetary damages eventually incurred.” Sharts, 885 P.2d at 646 (internal quotation

marks omitted)). But Ms. Cahn argues here, as she did to the district court, that she

did not discover this injury until April 30, 2015, when the New Mexico Court of

Appeals overturned the lower court decision that had relied on due process principles

to allow her to proceed with her untimely filed claims. Up until this decision,

Ms. Cahn asserts, “a reasonable layperson in [her] position would not have reason to

believe that her attorney had caused her harm.” Aplt. Opening Br. at 12.

       We disagree. We begin our analysis by noting that the New Mexico Supreme

Court has rejected the proposition that a client is not injured until the final judicial

determination that a right has been lost due to alleged malpractice. See Sharts,

885 P.2d at 646. In Sharts, the plaintiff-client alleged his former attorney had

committed legal malpractice in drafting covenants that erroneously restricted

development of a tract of plaintiff’s land. The defendant-attorney moved for

summary judgment on the ground that the action was barred by the four-year statute

of limitations. The district court denied the motion and the court of appeals affirmed,

                                              7
holding that the plaintiff had not been harmed by the alleged malpractice until a court

fixed the plaintiff’s rights by entering a declaratory judgment that the restrictive

covenants applied to the land in question. See id. at 645, 646. But the New Mexico

Supreme Court expressly rejected the court’s reliance on this judicial determination,

declaring instead that the client was injured by his attorney’s malpractice much

earlier, when the mistaken covenants caused him to lose the right to develop the

property as he had planned. See id. at 646. This was so, the court explained, because

“a right, remedy or interest is usually lost . . . at the time of a lawyer’s error, even

though a court does not so declare until a later date” Id. (quoting 2 Ronald E. Mallen

& Jeffrey M. Smith, Legal Malpractice § 18.15, at 137 (3d ed. 1989 & Supp. 1993)

[hereinafter Legal Malpractice]). Thus, when the attorney’s “malpractice results in

the loss of a right,” as Ms. Cahn alleges, the client is injured “regardless of whether

future events,” such as the Court of Appeals decision here, “may affect the

permanency of the injury or the amount of monetary damages eventually incurred.”

Id.

       Ms. Cahn acknowledges this language in Sharts, but asserts it is not relevant to

determining when she discovered or should have discovered Defendants’ malpractice

and the resulting injury. In support of this position, she points to the New Mexico

Supreme Court’s observation in Sharts that “the unpredictability in resolution

through the judicial process may excuse discovery of the injury.” Id. at 646 (quoting

Legal Malpractice § 18.11, at 42-43). But Ms. Cahn reads too much into this

statement, especially in light of the New Mexico court’s further discussion of the

                                             8
discovery issue in Sharts. Nowhere in Sharts, for example, does the New Mexico

court suggest a general rule that a client neither knows nor should know of his or her

attorney’s malpractice and resulting harm until the harm is fixed by a court decision.

To the contrary, in Sharts the New Mexico Supreme Court did not look at all to the

judicial decision that confirmed the plaintiff-client’s loss in determining when he

discovered or should have discovered his attorney’s malpractice and the resulting

loss. Instead, it held the plaintiff-client “either knew or should have known, as a

matter of law, that [his attorney] may have been negligent in drafting the covenants

and that he [the client] had suffered loss or harm as a result” when the client brought

a declaratory judgment action in an attempt to avoid the potential harm (enforcement

of the restrictive covenants) caused by his attorney’s negligence. Id. at 647.

Obviously, this discovery date preceded the judicial determination confirming the

harm that was later entered in that action.2




      2
         Ms. Cahn argues this result is distinguishable because the plaintiff-client in
Sharts knew of his attorney’s error as a result of receiving letters from two attorneys
representing adverse parties and a title company that asserted the restrictive
covenants applied to the property in question. But we see no material distinction
between the notice these assertions provided and that provided by Dr. Berryman’s
assertion in his September 2012 interlocutory appeal application that Ms. Cahn and
her attorneys had erred by failing to timely identify and name him in the medical
malpractice action. Nor are we persuaded that Sharts is distinguishable because “in
addition” the court there noted the plaintiff-client demonstrated actual knowledge of
the attorney’s error a few months after he filed the declaratory judgment action when
he threatened to sue his attorney for malpractice. 885 P.2d at 647; see id. at 644.
Not only was this an alternative basis for the court’s discovery holding, but in this
case, Ms. Cahn testified that by June 2013 she too believed Defendants had made a
mistake in failing to identify Dr. Berryman earlier in the litigation.
                                               9
      This discussion in Sharts suggests that under New Mexico law a client knows

or should know of her attorney’s negligence and the resulting harm, as a matter of

law, when she has notice of the negligent conduct and resulting potential harm and is

forced to take action to avoid or mitigate that harm. Here, as discussed in more detail

below, there is no dispute that Ms. Cahn knew of Defendants’ alleged negligence in

failing to timely identify and name Dr. Berryman no later than June 2013, knew this

negligent failure put her claims against him at risk of dismissal, and was forced to

take action, i.e., defending against Dr. Berryman’s timeliness challenge, in an effort

to avoid this harm. Accordingly, under New Mexico law she cannot claim that she

neither knew nor should have known of Defendants’ alleged negligence and the

resulting harm until the New Mexico Court of Appeals determined the extent and

permanence of that harm in its April 30, 2015 decision.

      Ms. Cahn further asserts that she did not discover that Defendants had

committed an error until the New Mexico Court of Appeals’s decision because it was

only then that she learned that Defendants had been mistaken in advising her that

New Mexico law allowed her to assert her claim against Dr. Berryman even though

she and Defendants knew it was filed outside the statutory period. But the

malpractice Ms. Cahn alleged in this action is not this mistaken advice, it is that

Defendants “fail[ed] to timely discover the identity of Dr. Berryman within the

Medical Malpractice Act’s statute of repose and fail[ed] to timely amend [her]




                                           10
complaint . . . to name Dr. Berryman as an individual defendant.”3 Jt. App. at 10.

Ms. Cahn does not and cannot contend that she was unaware of this alleged error

until the New Mexico Court of Appeals issued its decision.

      Similarly, Ms. Cahn also asserts that Defendants’ mistaken advice prevented

her from discovering that she suffered any harm as a result of Defendants’ negligence

until the New Mexico Court of Appeals proved that advice wrong by ruling that her

claims were time-barred. But the undisputed facts show that Ms. Cahn knew or

should have known during the district court proceedings that her ability to pursue

Dr. Berryman for malpractice was at risk as a result of Defendants’ alleged

negligence in failing to timely name him. Ms. Cahn also testified that she believed

Defendants had made a mistake in not naming Dr. Berryman earlier by the time of

the June 2013 conditional settlement. Further, Ms. Cahn was aware at the time of the

settlement that she would not receive the stipulated damages, if at all, until

Dr. Berryman’s timeliness appeal was decided. This delay and any expenses

Ms. Cahn incurred in litigating the timeliness issue are also injuries attributable to

Defendants’ alleged negligence that Ms. Cahn knew or should have known of no later

than June 2013. See Sharts, 885 P.2d at 646 (holding actual injury “may take the

form of consequential or incidental damages, such as attorney’s fees or costs incurred




      3
         Similarly, in identifying when she suffered actual injury as a result of
Defendants’ alleged malpractice, Ms. Cahn points to “the time Defendants failed to
timely name Dr. Berryman in the medical malpractice lawsuit.” Aplt. Opening Br.
at 10 n.2.
                                           11
as a result of the alleged malpractice, even though these sums may be relatively

minor compared with the main damage claim”).

      Finally, Ms. Cahn asserts the district court’s summary judgment decision must

be reversed because the court improperly weighed the evidence against her in

deciding that her claims accrued no later than June 2013 and were therefore

time-barred. Based on our review of the record, we discern no such error. Ms. Cahn

testified that she knew at the time Defendants discovered Dr. Berryman’s identity and

added him to the medical malpractice complaint that these actions occurred after the

statutory period to sue had expired and that the statutory time bar would therefore be

an issue in maintaining her claim against him. Her testimony also established that

she knew of Dr. Berryman’s motion to dismiss her claims based on Defendants’

failure to timely add him to her suit. She further testified that she reviewed

Dr. Berryman’s application for interlocutory appeal in September 2012, in which he

identified actions Defendants had failed to take that would have allowed them to

identify and name the doctor before the statute of repose expired. As a result, she

knew or should have known by then of Defendants’ alleged errors and omissions in

failing to timely identify Dr. Berryman. Finally, Ms. Cahn testified that by

June 2013, when the conditional stipulated judgment was entered, she believed that

Defendants had made a mistake in not identifying Dr. Berryman earlier in the

litigation and knew that Dr. Berryman was appealing the judgment as a result of the

mistake and that she would not receive the stipulated damages if he prevailed.



                                           12
       In light of this record and New Mexico law as described above, the undisputed

facts show that by no later than June 2013, Ms. Cahn had suffered actual injury as a

result of Defendants’ failure to timely identify and name Dr. Berryman in the medical

malpractice complaint, and knew or should have known of Defendants’ negligent

conduct and that she had been injured as a result. Accordingly, we agree with the

district court that Ms. Cahn’s legal malpractice claims accrued no later than June

2013, more than four years before she filed this action.

       B. Continuous representation doctrine

          1. The district court’s decision

       “Under the continuous representation doctrine, running of the statute of

limitations is tolled until the representation terminates with respect to the matters that

underlie the malpractice action.” Sharts, 885 P.2d at 647. “The purpose of the

doctrine is to avoid unnecessarily disrupting the attorney-client relationship.” Id.

(internal quotation marks omitted).

       Ms. Cahn argued to the district court that her claims were timely based on the

doctrine, but the district court did not apply it because the New Mexico courts have

not adopted the doctrine to date and because the court was not convinced that the

doctrine applied in light of the undisputed facts. Ms. Cahn now urges us to reverse

the district court and apply the doctrine to toll the statute of limitations on her claims.

       As the district court properly found, the initial problem with Ms. Cahn’s

request is that New Mexico’s appellate courts have not adopted the doctrine, even

though they have had several opportunities to do so. Most notably, in Sharts, the

                                            13
New Mexico Supreme Court expressly declined the plaintiff’s request that it adopt

the doctrine, stating it was “not inclined to adopt the doctrine at this time (and in this

case).” 885 P.2d at 647. The New Mexico Court of Appeals noted this decision in

declining to adopt the doctrine in a subsequent malpractice action. See LaMure v.

Peters, 924 P.2d 1379, 1385 (N.M. Ct. App. 1996) (declining plaintiffs’ request to

adopt the doctrine in an accounting malpractice action and noting the New Mexico

Supreme Court’s “recent, express disinclination to adopt” the doctrine); see also

Delta Automatic Sys., Inc. v. Bingham, 974 P.2d 1174, 1181 (N.M. Ct. App. 1998)

(noting that the New Mexico Supreme Court “express[ed] reservations” about the

doctrine in Sharts). Indeed, we recognize that, in light of these decisions, a panel of

this court has previously expressed reluctance to adopt the continuous representation

doctrine “on behalf of New Mexico courts.” Spencer v. Sommer, 91 F. App’x 48, 52

(10th Cir. 2004) (unpublished).

       Ms. Cahn argues the cited New Mexico decisions are distinguishable because

in each case the New Mexico court found that even if it adopted the doctrine, it was

not applicable to the case before it. Here, Ms. Cahn asserts, the doctrine would apply

and toll the statute of limitations on her legal malpractice claim until the end of 2014,

when Defendant Wood retired, thereby bringing her legal malpractice claims within

the four-year statute of limitations.

       We do not share Ms. Cahn’s confidence that the continuous representation

doctrine, if adopted, would apply and toll the statute of limitations in this case. The

doctrine only applies “until the representation terminates with respect to the matters

                                            14
that underlie the malpractice action.” Sharts, 885 P.2d at 647. Ms. Cahn testified

that she understood that Defendants had handed her case over to another attorney,

Ms. Weingartner, when the stipulated judgment entered in June 2013 and that she did

not think that she had any contact with Defendants after this date. Ms. Cahn counters

by noting that Defendants remained counsel of record in her case against

Dr. Berryman at least until Defendant Wood retired and closed his firm late in 2014.

But the relevant inquiry here is not “whether an attorney-client relationship still

exist[ed] but when the representation of the specific matter terminated.” Id. at 648

(internal quotation marks omitted). Ms. Cahn did not produce evidence disputing

that Defendants’ representation of her in the medical malpractice action effectively

ended when they handed her case over to Ms. Weingartner. And as a result of this

hand-off, it is also not clear to us that the purpose of the doctrine, avoiding

unnecessary disruption to the attorney-client relationship, see id. at 647, would be

served by applying the doctrine to toll Ms. Cahn’s claims against the Defendants.

Given these uncertainties and the New Mexico courts’ failure to adopt the continuous

representation doctrine as described above, we see no error in the district court’s

decision not to adopt and apply the doctrine in deciding Defendants’ motion for

summary judgment.

             2.     Motion to certify

      Perhaps anticipating this outcome, Ms. Cahn has also filed a motion to certify

this issue to the New Mexico Supreme Court. More specifically, she requests that we

ask the New Mexico Supreme Court “[w]hether New Mexico law recognizes the

                                            15
continuous representation doctrine which tolls the limitation period for a legal

malpractice claim while an attorney represents his or her client on the same subject

matter giving rise to the legal malpractice claim[.]” Pl.-Aplt.’s Mot. to Certify

Question of State Law at 1. Implicitly, she also asks that we defer our decision on

her appeal until the New Mexico Supreme Court responds to this question.

       “When state law permits, this court may: (1) certify a question arising under

state law to that state’s highest court according to that court’s rules; and (2) abate the

case in this court to await the state court’s decision of the certified question.”

10th Cir. R. 27.4(A). New Mexico permits its highest state tribunal to “answer a

question of law certified to it by a court of the United States . . . if the answer may be

determinative of an issue in pending litigation in the certifying court and there is no

controlling appellate decision, constitutional provision or statute of this state.”

N.M. Stat. Ann. § 39-7-4 (1978). In deciding whether to grant a certification request,

we also look to federal law, which counsels that “we apply judgment and restraint

before certifying,” and limit certification to “circumstances where the question before

us (1) may be determinative of the case at hand and (2) is sufficiently novel that we

feel uncomfortable attempting to decide it without further guidance.” Pino v. United

States, 507 F.3d 1233, 1236 (10th Cir. 2007). The decision on whether to certify a

state-law question ultimately “rests in the sound discretion of the federal court.”

Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).

       Upon consideration of these state and federal standards, we deny Ms. Cahn’s

motion. As described above, her question is not novel, because the New Mexico

                                            16
appellate courts have considered it on several occasions. That the New Mexico

Supreme Court has thus far expressly declined to adopt the doctrine also weighs

against certification. In addition, we are not persuaded that Ms. Cahn’s question,

even if answered in the affirmative, may be determinative in this case because, for

the reasons we have explained, it is far from certain that the continuous

representation doctrine, if adopted by the New Mexico Supreme Court, would apply

here. We also note that Ms. Cahn did not ask the district court to certify this question

before it ruled, which is another factor that weighs against her request. See, e.g.,

Massengale v. Okla. Bd. of Exam’rs in Optometry, 30 F.3d 1325, 1331 (10th Cir.

1994) (“We generally will not certify questions to a state supreme court when the

requesting party seeks certification only after having received an adverse decision

from the district court.”) Accordingly, we decline to certify Ms. Cahn’s question and

deny her motion.

      C. Breach of contract claim

      Finally, Ms. Cahn argues the district court erred in granting summary

judgment on her breach of contract claim, without giving her notice and an

opportunity to argue that it was subject to the longer statute of limitations applicable

to actions founded on a written contract. But this argument rests on a false premise,

which is that Defendants only moved for summary judgment on her professional

negligence claim. In fact, as the district court recognized, Defendants’ motion

consistently sought dismissal of Ms. Cahn’s “claims” on the ground that they were

time-barred. E.g., Jt. App. at 17, 18, 24, 89, 103. If Ms. Cahn believed that her

                                           17
breach of contract claim was not subject to the four-year statute of limitations for

legal malpractice claims that Defendants argued, then she should have presented this

argument to the district court. She did not do so.4

       “As a general matter, arguments not raised before the district court are

forfeited on appeal.” United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2019);

see Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). We only

consider such forfeited arguments under the plain error standard of review.5 See

Garcia, 936 F.3d at 1131. Ordinarily, “if a defendant does not argue for plain error

in his opening brief on appeal, he waives any plain error argument.” Id. Here,

Ms. Cahn did not argue plain error in her opening brief or even in her reply brief

after Defendants raised the forfeiture issue in response to her opening brief.

Accordingly, she has waived this argument in this court, and we do not consider it.

See Richison, 634 F.3d at 1130–31 (explaining that the failure to argue plain error

“marks the end of the road for an argument for reversal not first presented to the

district court”).




       4
         We also note that Ms. Cahn does not challenge the district court’s finding
that both her professional negligence and breach of contract claims “are based on
allegations of legal malpractice.” Jt. App. at 103.
       5
          “To show plain error, a party must establish the presence of (1) error,
(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Richison,
634 F.3d at 1128.
                                            18
                                  CONCLUSION

      For the reasons stated above, we affirm the district court’s dismissal of

Ms. Cahn’s claims and deny her motion to certify a question of state law.


                                           Entered for the Court


                                           Jerome A. Holmes
                                           Circuit Judge




                                          19
