Garman v. Campbell County Sch. Dist. No. 1

• Decision Date: 23 December 2010
• Docket Number: No. 08–8101.,08–8101.
• Citation: 630 F.3d 977
• Parties: Ellen GARMAN, guardian and next friend of Apryl Garman, Plaintiff–Appellant,v.CAMPBELL COUNTY SCHOOL DISTRICT NO. 1, State of Wyoming; Chris Milliron, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

630 F.3d 977

Ellen GARMAN, guardian and next friend of Apryl Garman, Plaintiff–Appellant,

v.CAMPBELL COUNTY SCHOOL DISTRICT NO. 1, State of Wyoming; Chris Milliron, Defendants–Appellees.

No. 08–8101.

United States Court of Appeals, Tenth Circuit.

Dec. 23, 2010.

Submitted on the briefs: ^*Stephen R. Winship, Winship & Winship, Casper, WY, for Plaintiff–Appellant.

Tracy J. Copenhaver, Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, WY, for Defendants–Appellees.Before O'BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.O'BRIEN, Circuit Judge.

In 1978, the Wyoming Supreme Court abrogated sovereign immunity for counties, municipal corporations, school districts, and other subdivisions of the government. Oroz v. Bd. of Cnty. Comm'rs of Cnty. of Carbon, 575 P.2d 1155, 1158 (Wyo.1978). In response, the Wyoming legislature enacted the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1–39–101 to 121, which became effective on July 1, 1979. See Scott v. Sch. Dist. No. 6, 815 F.Supp. 424, 426 (D.Wyo.1993). “The legislature chose a ‘close-ended’ statutory scheme, which reasserts governmental immunity but waives the immunity for certain enumerated exceptions.” Id. (quotations omitted). Because the waiver is limited, a person seeking to file suit against a governmental entity must strictly comply with all conditions for bringing such a suit. Among other things, the Wyoming Constitution and the WGCA require the filing of a notice of claim with the appropriate governmental entity, signed by the person asserting the claim, within a specified time period. Not only must these requirements be met, but a claimant must specifically plead compliance with these requirements. Failure to do so is fatal. Suits brought in Wyoming courts are routinely dismissed for want of jurisdiction if a claimant either fails to meet all conditions precedent or fails to plead compliance.

Ellen Garman, as next friend and guardian of Apryl Garman, brought this diversity action in federal court against the Campbell County School District No. 1 (“the School District”), a governmental entity, asserting a state law claim for negligence and negligent supervision. She failed to satisfy the special pleading requirement. The district court dismissed for lack of subject matter jurisdiction, as any Wyoming court would be required to do. See Beaulieu v. Florquist, 86 P.3d 863, 866–69 (Wyo.2004) (holding a plaintiff's complaint must allege compliance with the signature and certification requirements of the Wyoming Constitution in order to invoke the court's subject matter jurisdiction).

Garman appeals from that dismissal, contending Wyoming's pleading requirements conflict with the Federal Rules of Civil Procedure (specifically Rule 8(a), which requires only notice pleading) and the court erred in applying the Wyoming requirements. But a plaintiff in a federal diversity action is not entitled to preferential treatment. Garman cannot, by choosing the federal forum, circumvent Wyoming law. The district court correctly concluded it could not entertain Garman's suit.

BACKGROUND

On November 1, 2004, Apryl Garman was injured during a physical education class at Twin Spruce Junior High School in Gillette, Wyoming. On October 6, 2006, Apryl's mother, Ellen Garman (“Garman”), served a Notice of Governmental Claim (“Notice of Claim”) on the School District, a governmental entity.

Article 16, § 7 of the Wyoming Constitution states:

No money shall be paid out of the state treasury except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the state, or any county or political subdivision, shall be audited, allowed or paid until a full itemized statement in writing, certified to under penalty of perjury, shall be filed with the officer or officers whose duty it may be to audit the same.

The WGCA states in pertinent part: “No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission....” Wyo. Stat. Ann. § 1–39–113(a). A plaintiff's complaint must allege compliance with the signature and certification requirements of the Wyoming Constitution in order to invoke the court's subject matter jurisdiction. Beaulieu, 86 P.3d at 868–69.¹ Actions against a governmental entity generally must be commenced within one year of the date of the filing of the governmental claim. Wyo. Stat. Ann. § 1–39–114.

On October 4, 2007, Garman filed suit against the School District and five fictitious defendants (John Does I–V) in federal district court asserting two counts: negligence and negligent supervision (Count I) and violation of the U.S. Constitution—due process and equal protection (Count II). With respect to her state claims, she alleged jurisdiction based on 28 U.S.C. §§ 1331 (federal question) and 1332 (diversity of citizenship). She did not specifically allege compliance with the signature and certification requirements of the Wyoming Constitution. She did, however, reference her Notice of Claim in her complaint ² and attach a copy of the Notice to her complaint.

On April 18, 2008, Garman filed a motion to amend her complaint to drop Count II (due process and equal protection claims) pursuant to the parties' stipulation and to add two individuals as named defendants. The court granted Garman's motion as to one of the defendants. Garman subsequently filed an amended complaint which dropped Count II and named the new defendant, Chris Milliron. Though the only claim remaining was a state law claim for negligence and negligent supervision, the amended complaint asserted jurisdiction based on both 28 U.S.C. §§ 1331 and 1332.³ Like the original complaint, the amended complaint did not specifically allege compliance with the signature and certification requirements, but again incorporated the Notice of Claim by reference. See supra n. 2.

On April 14, 2008, Defendants filed a motion for summary judgment arguing the merits. Garman opposed the motion. On May 5, 2008, Defendants filed a motion to dismiss Garman's complaint for lack of subject matter jurisdiction because of her failure to comply with the signature and certification requirements of Wyoming law. In opposition, Garman argued: “Paragraph 14 of Plaintiff's Complaint, by its incorporation of Plaintiff's Governmental Claim, satisfies the jurisdictional requirements that are the subjects of Defendant's motion.” (Appellant's App. at 111.) “Alternatively, if Plaintiff's Complaint does not sufficiently plead compliance with the jurisdictional requirements, this Court should allow the complaint to be amended and to have a retroactive effect in accordance with F.R.C.P. 15(c).” ⁴ ( Id.) Garman did not, however, seek leave to amend.

The court did not address the summary judgment motion. Instead, it dismissed Garman's amended complaint for lack of subject matter jurisdiction. Based on Gose v. City of Douglas, 193 P.3d 1159 (Wyo.2008) ⁵, it concluded Garman's incorporation of her Notice of Claim by reference did not satisfy Wyoming's pleading requirement. It did not address Garman's suggestion that she be permitted to amend. The dismissal was entered with prejudice because Garman “can no longer comply with the necessary filing deadlines of the Wyoming Governmental Claims Act....” (Appellant's App. at 163.)

DISCUSSION

Garman contends the court erred in dismissing because her complaint complied with federal law, specifically Rule 8(a) of the Federal Rules of Civil Procedure, and the Federal Rules govern in diversity cases. She argues, in the alternative, the court erred in dismissing her complaint with, instead of without, prejudice. Finally, she claims the court erred in not allowing her to amend her complaint to satisfy the signature and certification requirements of Wyoming law. Garman claims an amended complaint, should she have been allowed to amend, would have related back to the original filing date pursuant to Rule 15(c) of the Federal Rules of Civil Procedure.

We review de novo the dismissal of a complaint for lack of subject matter jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 952, 173 L.Ed.2d 116 (2009). As the party invoking the court's jurisdiction, Garman has the burden of proof. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974).

A. The District Court Did Not Err in Applying Wyoming Law

We first address whether the district court erred in dismissing Garman's complaint for lack of jurisdiction. Garman argues federal procedural law governs because the court is exercising diversity jurisdiction and Wyoming's pleading requirement under the WGCA is incompatible with Federal Rule of Civil Procedure 8(a)(1).

The Supreme Court, in Shady Grove Orthopedic Associates v. Allstate Insurance Company, ––– U.S. ––––, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), recently clarified the analysis for determining whether a federal rule or state law governs.⁶

The court must first determine whether the scope of the federal rule is sufficiently broad to control the issue before the court, thereby leaving no room for operation of seemingly conflicting state law. If the federal rule does not apply or can operate alongside the state rule, then there is no Act of Congress governing that particular question, and the court must engage in the traditional Rules of Decision Act inquiry under Erie and its progeny.... If, on the other hand, the federal rule is sufficiently broad to control the issue before the Court such that there is a direct collision, the court must decide whether application of the federal rule represents a valid exercise of the rulemaking authority bestowed on this Court by the Rules Enabling Act. That Act requires, inter alia, that federal rules not abridge, enlarge or modify any...