                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RANDY BORUM,

                Plaintiff-Appellant,

    v.                                                    No. 00-5028
                                                    (D.C. No. 98-CV-431-K)
    COFFEYVILLE STATE BANK;                               (N.D. Okla.)
    CSB BANCORP, INC.,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Randy Borum appeals the district court’s grant of summary

judgment in favor of defendants Coffeyville State Bank and CSB Bancorp, Inc.

(the “Bank”) on his complaint alleging the Bank defrauded him and failed

properly to collect on collateral securing his indebtedness to the Bank. The

district court exercised diversity jurisdiction over the matter pursuant to 28 U.S.C.

§ 1332(a)(1). It ruled that the applicable statutes of limitation barred his claims

for fraud, breach of contract, breach of the duty of good faith and fair dealing,

and intentional infliction of emotional distress. The parties are familiar with the

facts and the procedural history of this case, and we will not repeat them here.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

       We review the grant of summary judgment de novo, applying the same

standard as the district court.   Simms v. Okla. ex rel. Dep't of Mental Health &

Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. ),   cert. denied , 528 U.S.

815 (1999). Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

As required, “we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.”     Simms , 165 F.3d at 1326.




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       To survive summary judgment, “the nonmovant cannot rest upon his or her

pleadings, but must bring forward specific facts showing a genuine issue for trial

as to those dispositive matters for which he or she carries the burden of proof.”

Id. (quotation and alteration omitted). “The mere existence of a scintilla of

evidence in support of the nonmovant’s position is insufficient to create a dispute

of fact that is genuine; an issue of material fact is genuine only if the nonmovant

presents facts such that a reasonable jury could find in favor of the nonmovant.”

Id. (quotations omitted).

       On appeal, Mr. Borum does not dispute that the district court applied the

correct statute of limitations for each of his claims. He contends, instead,

that whether he knew, or with reasonable diligence should have known, of the

existence of his fraud, breach of good faith and fair dealing, and breach of

contract claims is a question for the jury. He does not appeal the dismissal of his

intentional infliction of emotional distress claim.

       The question of a plaintiff’s knowledge or reasonable diligence can be a

question of fact for a jury.   E.g . Wolf v. Preferred Risk Life Ins. Co.   , 728 F.2d

1304, 1306-07 (10th Cir. 1984) (applying Kansas law);         Holmes v. McKey , 383

P.2d 655, 668 (Okla. 1962). However, “[w]here a defending party pleads a statute

of limitation and moves for summary judgment, and it appears that the action is

barred by the appropriate statute of limitations and there is no genuine issue as to


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any material fact in connection with such statute, . . . then the motion for

summary judgment should be granted.”       Goforth v. Franklin Life Ins. Co.   , 449

P.2d 477, 487 (Kan. 1969) (quotation omitted);     accord MBA Commercial Constr.,

Inc. v. Roy J. Hannaford Co. , 818 P.2d 469, 472 (Okla. 1991).

       Our study of the record in this case convinces us that the evidence is clear

and undisputable that plaintiff knew or should have known with the exercise of

reasonable diligence all of the operative facts underlying his fraud and breach of

good faith and fair dealing claims more than two years before he filed his

complaint, and all of the operative facts underlying his breach of contract claim

more than five years before he filed his complaint. The Bank presented evidence

of events occurring between 1987 and 1995, enumerated in its motion for

summary judgment, indicating that Mr. Borum either had actual knowledge of the

facts giving rise to his claims or that these facts were readily ascertainable by

him. Mr. Borum failed to present any specific evidence rebutting the Bank’s

evidence. Moreover, Mr. Borum’s assertion that he did not know about the

Bank’s conduct with respect to his collateral because he did not read the relevant

contracts that he signed in 1986 and 1987--which expressly described most of the

Bank’s actions that give rise to his claims--is insufficient to toll the running of

the applicable statutes of limitation.   See e.g., McCain v. Combined

Communications Corp. of Okla., Inc.,     975 P.2d 865, 867 (Okla. 1998) (holding


                                           -4-
that plaintiffs should have discovered fraud when they possessed documents

containing all the relevant facts underlying claim);   Yoder v. Weston , 250 P. 522,

523 (Okla. 1926) (holding that fraud statute of limitations is not tolled where

plaintiff failed to read document providing notice of the claimed fraud; stating

that “[t]he rule that the statute of limitations does not begin to run until the

discovery of the fraud does not mean that one can shut his eyes to obvious facts”).

       Mr. Borum’s assertions in his affidavit that the Bank concealed

information, preventing him from discovering the alleged fraud, are unsupported,

conclusory allegations, which are insufficient to create a genuine issue of material

fact. See United States v. Simons , 129 F.3d 1386, 1388 (10th Cir. 1997) (holding

that conclusory allegations will not suffice to meet nonmovant’s burden to show

triable issue of fact; “[i]nstead, sufficient evidence (pertinent to the material

issue) must be identified by reference to an affidavit, a deposition transcript, or a

specific exhibit incorporated therein” (quotation omitted)). Mr. Borum failed to

present any specific evidence that the Bank engaged in any affirmative acts or

active deception to conceal facts giving rise to his claims. The district court

properly granted summary judgment on the grounds that Mr. Borum’s claims were

time-barred.

       Mr. Borum next contends the district court erred in refusing to consider his

claim that the Bank breached a fiduciary duty owed him, and his claim that the


                                             -5-
Bank wrongfully impaired his collateral in violation of the Uniform Commercial

Code. Mr. Borum only mentioned these allegations in his response to the Bank’s

motion for summary judgment. He did not plead either of these claims in his

complaint, nor did he ever seek to amend his complaint to do so. Thus, the

district court correctly refused to consider either a breach of fiduciary duty claim

or a Uniform Commercial Code claim.      Cf. Lawmaster v. Ward , 125 F.3d 1341,

1346 n.2 (10th Cir. 1997) (refusing to consider claim not raised in complaint).

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED for substantially the reasons set forth in the district

court’s order dated December 17, 1999.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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