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

                                                                  November 6, 2009
                             FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    RUDY E. DAVIS, JR.,

               Plaintiff-Appellant,

    v.                                                  No. 08-3326
                                              (D.C. No. 2:07-CV-02323-EFM)
    ZIANA LIESE, M.D.,                                   (D. Kan.)

               Defendant-Appellee,

         and

    SHAWNEE MISSION MEDICAL
    CENTER, INC.; EM SPECIALISTS
    P.A.; ROBERT L. PROSSER, JR.,
    M.D.,

               Defendants.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Rudy E. Davis, Jr. appeals the district court’s determination that his

medical malpractice claims against Ziana Liese, M.D., are barred by the statute of

limitations because Dr. Liese was not timely served with process. Because

Mr. Davis never received or filed an executed waiver of service and did not

formally serve Dr. Liese before the statutory deadline, we affirm. 1

                                    Background

      The district court correctly chose to apply Kansas limitations provisions

because the case was brought under diversity jurisdiction. See Walker v. Armco

Steel Corp., 446 U.S. 740, 752-53 (1980) (concluding that “state service

requirements which are an integral part of the state statute of limitations should

control in an action based on state law which is filed in federal court under

diversity jurisdiction.”); Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945)

(holding that state limitations periods govern state-law claims in a diversity case).

      Mr. Davis’s claims arise from the deaths of his wife and unborn child on

January 25, 2006. Under Kan. Stat. Ann. § 60-513, he had two years from that

date to commence his suit. Kansas deems a suit to have commenced as of the


1
       On December 11, 2008, this court identified a potential issue of appellate
jurisdiction because Mr. Davis’s claims against defendant Shawnee Mission
Medical Center, Inc. had been dismissed without prejudice and thus remained
viable in district court. The district court subsequently issued an order certifying
its decision as to Dr. Liese as final under Fed. R. Civ. P. 54(b). The jurisdictional
issue was referred to this panel. In light of the Rule 54(b) certification, we are
satisfied that this court has jurisdiction to hear this appeal. See Lewis v. B.F.
Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988) (en banc).

                                         -2-
date the complaint is filed, so long as the defendants are served within ninety

days of the filing. See Kan. Stat. Ann. § 60-203(a). But when service does not

occur within that ninety-day period, it is the date of service, not the date of filing,

which marks the commencement of the suit. See id.

      Mr. Davis filed his original complaint, which did not name Dr. Liese as a

defendant, in July 2007. On December 3, 2007, he filed an amended complaint

including the claims against her. 2 As permitted by Fed. R. Civ. P. 4(d), 3

Mr. Davis, through his counsel, mailed her a request to waive service, along with

a copy of the amended complaint. Dr. Liese testified in her deposition that she

received and read the waiver packet, and that she signed something and handed it

back to her office manager. She was not sure whether it was the waiver that she

signed. It is undisputed, however, that the waiver never was returned to

Mr. Davis or filed with the district court. Dr. Liese answered the amended

complaint on December 17, 2007, asserting in her affirmative defenses “[t]hat

Plaintiff’s claims may fail due to improper service of process.” Aplt. App. at 28.



2
       Dr. Liese asserts that “the action against [her] was not commenced pursuant
to Federal Rule of Civil Procedure 3” because the first amended complaint was
filed shortly after the deadline for filing amended complaints, without Mr. Davis
seeking leave to file out of time. Aplee. Br. at 24. But the district court
expressly allowed Mr. Davis to file his first amended complaint out of time due to
excusable neglect. Dr. Liese does not take issue with the finding of excusable
neglect, so we do not further consider this argument.
3
      Fed. R. Civ. P. 4 sets the standard for adequacy of service in federal court,
even in a diversity case. See Hanna v. Plumer, 380 U.S. 460, 463-64 (1965).

                                           -3-
      The ninety-day service period elapsed on Monday, March 3, 2008. On

March 24, Dr. Liese moved for dismissal under §§ 60-513 and 60-203(a), arguing

that she had not been served within the ninety-day period, so the suit had not

commenced on or before January 25, 2008. The court issued a summons as to

Dr. Liese on March 31, and Mr. Davis formally served her with the summons and

a copy of the amended complaint. The court, however, agreed with Dr. Liese and

granted judgment in her favor. Mr. Davis appeals. 4

                                      Analysis

      Mr. Davis argues that the district court erred in granting judgment to

Dr. Liese because (1) she waived formal service of process by signing the waiver

form; (2) she waived the defenses of insufficiency of service and the statute of

limitations when she filed her answer; and (3) he is entitled to invoke the savings

provision in Kan. Stat. Ann. § 60-203(b), under which the commencement date

would still be the filing date. Our review of the district court’s decision is de

novo. See Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998).

      1.     Dr. Liese did not waive formal service of process.

      Mr. Davis argues that by receiving the waiver packet, reading it, signing

the waiver, and handing it back to her office manager, Dr. Liese “in this case in

fact had waived the formal service of process.” Aplt. Br. at 25. We disagree.

4
      The district court also granted judgment to defendants EM Specialists, P.A.
and Robert L. Prosser, Jr., M.D. Pursuant to the parties’ stipulation, this court
dismissed these defendants from this appeal.

                                         -4-
      It is unclear whether Dr. Liese signed the waiver; her testimony was that

she signed some document, but she did not recall whether it was the waiver.

Ultimately, though, it does not matter whether it was the waiver that she signed.

Rule 4(d) requires that the waiver be executed by the defendant, returned to the

plaintiff, and filed with the court. Formal service is excused only upon the filing

of the executed waiver. See Fed. R. Civ. P. 4(d)(4); see also Fed. R. Civ. P. 4,

Adv. Comm. Notes, 1993 Amendments (“The revised rule is clear that, if the

waiver is not returned and filed, . . . the action will not otherwise proceed until

formal service of process is effected.”). Mr. Davis misplaces his reliance on

Morse v. Elmira Country Club, 752 F.2d 35, 40 (2d Cir. 1984), which held that

service by mail under Fed. R. Civ. P. 4(c)(2)(C)(ii) was complete and effective

even though defendant did not return the acknowledgment. Rule 4(c)(2)(C)(ii)

was superseded by the 1993 amendments to Rule 4, which, as noted above,

indicate that the waiver must be returned and filed to be effective. See

Cambridge Holdings Group, Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1362 (D.C. Cir.

2007). Because the waiver never was returned or filed with the court, there was

no effective waiver of formal service in this case.

      2.     Dr. Liese did not waive her defenses when she filed her answer.

      Mr. Davis also argues that Dr. Liese waived the insufficiency-of-service

and limitations defenses in two ways when she filed her answer. First, he

contends that under Kansas law, the appearance of counsel has the same effect as

                                          -5-
formal service of process. But we need not address this assertion. We have not

found where Mr. Davis argued before the district court that counsel’s appearance

had the same effect as formal service, and arguments not raised in the district

court are waived on appeal. See Rosewood Servs., Inc. v. Sunflower Diversified

Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005).

      Second, Mr. Davis argues that Dr. Liese’s answer did not assert a statute of

limitations defense. See Fed. R. Civ. P. 8(c), 12(b) (requiring defendants to assert

affirmative defenses in responsive pleading). As the district court noted, when

Dr. Liese filed her answer in December 2007, the limitations period had not

expired. Therefore, at that time there was no limitations defense to be raised.

The answer did raise the defense of service of process, and Dr. Liese promptly

asserted the limitations defense once it came into existence. We agree that, under

these circumstances, Dr. Liese did not waive either the process defense or the

limitations defense. Cf. Expertise, Inc. v. Aetna Fin. Co., 810 F.2d 968, 973

(10th Cir. 1987) (holding that failure to assert limitations defense in the answer

did not result in waiver, where the defense was included in the pretrial order).

      3.     The district court did not err in denying relief under
             Kan. Stat. Ann. § 60-203(b).

      Finally, Mr. Davis argues that he is entitled to a second chance for service

under Kan. Stat. Ann. § 60-203(b), which retains the original commencement date

“[i]f service of process . . . purports to have been made but is later adjudicated to


                                          -6-
have been invalid due to any irregularity in form or procedure or any defect in

making service[,]” so long as the plaintiff serves process within the ninety-day

period following the adjudication.

      To determine whether § 60-203(b) should apply, the district court applied

the factors set forth in Grimmett v. Burke, 906 P.2d 156 (Kan. App. 1995).

Grimmett held that “before it can be said that service has ‘purported to have been

made,’ it must be shown that a defendant was given actual notice of having been

sued.” Id. at 164. In addition, there should exist three additional factors:

      (1) The original service must have “appeared” to be valid and the
      returns by the sheriff’s office or other process servers must indicate
      that the service was valid. (2) The record should show that the
      plaintiff believed in good faith that his or her service was valid and
      relied on that validity to his or her detriment. (3) The plaintiff had
      no reason to believe the defendant was contesting service until after
      the statute of limitations had run, but had no opportunity to take
      steps to correct the defective service.

Id. Analyzing these factors, the district court concluded that (1) there did not

appear to be valid service because the materials sent to Dr. Liese did not include a

summons, and specifically stated that the request for waiver was not a summons;

(2) Mr. Davis could not believe in good faith that the request for waiver

effectuated valid service, since it did not include a summons; and (3) Dr. Liese’s

answer put Mr. Davis on notice that she was contesting service, and he could have

accomplished formal service before the limitations period expired. Thus, the

district court declined to apply § 60-203(b). On appeal, Mr. Davis contends that


                                         -7-
the Grimmett factors are inconsistent with the Kansas Supreme Court’s

interpretation of § 60-203(b). He urges us to rely solely on Hughes v. Martin,

729 P.2d 1200, 1204 (Kan. 1986), in which the Kansas Supreme Court stated, “we

must construe K.S.A. 60-203(b) liberally to secure the just determination of the

action now before us.”

      We disagree that Grimmett is inconsistent with Hughes. The Kansas

Supreme Court has approved and adopted the Grimmett factors. See

Pieren-Abbott v. Kan. Dep’t of Revenue, 106 P.3d 492, 504 (Kan. 2005); see also

Estate of Norris ex rel. Norris v. Hastings, 141 P.3d 511, 513-14 (Kan. App.

2006) (recognizing that the Kansas Supreme Court had employed the Grimmett

analysis and noting that Hughes was not entirely controlling). Therefore, the

district court did not err in employing the Grimmett analysis. Further, we agree

with the district court’s analysis of the Grimmett factors and, for substantially the

reasons stated by the district court, conclude that Mr. Davis is not entitled to

proceed under § 60-203(b). See Pieren-Abbott, 106 P.2d at 504 (holding that

plaintiffs could not proceed under § 60-203(b) where there was no original

service and they were informed that the defendant was contesting service before

the service period expired); Estate of Norris, 141 P.3d at 514 (declining to apply

§ 60-203(b) where plaintiff failed to satisfy any of the Grimmett factors, even

though defendant had actual notice of the suit due to the initial invalid service);

Cook v. Cook, 83 P.3d 1243, 1248 (Kan. App. 2003) (declining to apply

                                          -8-
§ 60-203(b) where plaintiff “cannot contend that original service appeared valid,

as the appearance docket reflects that a summons had not been issued in the case

until the statute of limitations ran”); Grimmett, 906 P.2d at 164 (declining to

apply § 60-203(b) where plaintiff was aware that she had incorrect address and

was advised within limitations period that defendant would contest service).

                                     Conclusion

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




                                         -9-
