Burnham v. Humphrey Hospitality Reit Trust, Inc.

• Decision Date: 04 March 2005
• Docket Number: No. 04-3062.,04-3062.
• Parties: Mary BURNHAM, Plaintiff-Appellant, v. HUMPHREY HOSPITALITY REIT TRUST, INC., doing business as Humphrey Associates Incorporated, doing business as Super 8 Motel; Humphrey Hospitality Limited Partnership; Humphrey Hospitality Management Inc.; Humphrey Hospitality Trust, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 709

403 F.3d 709

Mary BURNHAM, Plaintiff-Appellant, v. HUMPHREY HOSPITALITY REIT TRUST, INC., doing business as Humphrey Associates Incorporated, doing business as Super 8 Motel; Humphrey Hospitality Limited Partnership; Humphrey Hospitality Management Inc.; Humphrey Hospitality Trust, Inc., Defendants-Appellees.

No. 04-3062.

United States Court of Appeals, Tenth Circuit.

March 4, 2005.

Submitted on the briefs:^*

John Mac Hayes, Oklahoma City, OK, and Susan Saidian, Redmon & Nazar, Wichita, KS, on behalf of Plaintiff-Appellant.

Patrick J. Murphy, Wallace, Saunders, Austin, Brown & Enochs, Chtd., Wichita, KS, on behalf of Defendants-Appellees.

Before TACHA, Chief Circuit Judge, HENRY, and HARTZ, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Mary Burnham was injured in a shower at the Super 8 Motel in Park City, Kansas. Defendants-Appellees Humphrey Hospitality Trust, Inc., et al., moved to dismiss, arguing that the statute of limitations for negligence barred the suit. The District Court granted the Defendants' motion to dismiss. Ms. Burnham timely appeals, claiming that under Kansas law she had commenced this suit prior to the running of the statute of limitations for a negligence claim or alternatively that her complaint sounds in contract as well as tort and therefore the statute of limitations for a contract claim should apply. Defendants moved this Court to dismiss the appeal for the untimely filing of Ms. Burnham's opening brief. We take jurisdiction under 28 U.S.C. § 1291, DENY Defendants' motion to dismiss the appeal, AFFIRM the District Court's ruling, and ORDER Ms. Burnham's counsel, John Mac Hays, to SHOW CAUSE why we should not sanction him for making "a false statement of material fact ... to a tribunal." Kan. Sup.Ct. R. 226, R. Prof. Conduct 3.3(a)(1).

I. BACKGROUND

This case arises under diversity jurisdiction alleging a Kansas common law cause of action. See 28 U.S.C. § 1332. On March 29, 2001, Ms. Burnham was injured when a handrail^** in a shower at the Super 8 Motel collapsed. As early as November 9, 2001, Ms. Burnham's counsel, John Mac Hays, contacted the Defendants' insurance carrier, Wausau Insurance Company, to inquire about reaching an insurance settlement. R. at 50. On February 8, 2002, Wausau wrote Mr. Hays and informed him that it would only provide a $5,000 supplemental medical payment. R. at 52.

Ms. Burnham apparently considered this offer unacceptable because she chose to bring suit against Defendants. Ms. Burnham filed her complaint in the District of Kansas on March 19, 2003. This original complaint incorrectly identified the defendant as "Humphrey Associates Incorporated, d/b/a Super 8 Motel." R. at 44. Mr. Hays relied upon this name because during his correspondence with Wausau he referred to the Defendants in this manner. R. at 47-48.

In an affidavit, Mr. Hays avers that after filing the complaint he discovered that neither "Humphrey Associates Incorporated" nor "Super 8 Motel" were registered entities with the Kansas Secretary of State. R. at 48. He further claims that he contacted the Park City Motel 8 and inquired as to its authorized agent to receive service. Id. The employee at the Motel 8 did not know who the appropriate agent was. Id.

At this point, Mr. Hays could have rendered service of process under Kan. Stat. Ann. § 60-304(f), which allows service of the Secretary of State in such instances. Instead of serving the Secretary of State, Mr. Hays alleges that on March 28, 2003 he mailed a copy of the complaint and summons via first class mail to "the proprietor" of the Super 8 Motel in Park City. R. at 48, 54. Mr. Hays does not have a return receipt because he failed to use certified mail.

The Defendants contend they never received the March 28, 2003 letter or the accompanying complaint and summons. Although Mr. Hays claims to have sent a summons with the complaint, we note that the District Court's docket shows that the first issuance of a summons in this case did not occur until July 15, 2003 — some 109 days after a summons was allegedly mailed to the Defendants. R. at 2-3. Further, the only summons copies included in the record are copies of the July 15, 2003 summons. R. at 13, 15, 17, 19.

Nonetheless, Ms. Burnham filed an amended complaint listing the Defendants by their appropriate names on July 15, 2003. The Defendants were properly served with a copy of the amended complaint and summons on that date. The Defendants responded by filing a motion to dismiss. See Fed.R.Civ.P. 12(b)(6).

In their motion, the Defendants argued that Ms. Burnham's claim sounded in negligence and was subject to a two-year statute of limitations. See Kan. Stat. Ann. § 60-513(a)(4). Because Ms. Burnham was injured on March 29, 2001, the Defendants argued that the statute ran on March 29, 2003. The Defendants conceded that Ms. Burnham's original complaint, which was filed on March 19, 2003, was timely. Nevertheless, they argued that March 19, 2003 is not the commencement date for statute of limitations purposes because they were not adequately served until July 15, 2003. See Kan. Stat. Ann. § 60-203(a). Ms. Burnham replied that the March 28, 2003 letter and accompanying complaint and summons substantially satisfied the Kansas service of process requirements. See Kan. Stat. Ann. § 60-204. She further argued that, although the original complaint misnamed the Defendants, her July 15, 2003 amended complaint related back to the original complaint. See Fed.R.Civ.P. 15(c). The District Court granted the Defendants' motion and dismissed the case.

Ms. Burnham then filed a timely notice of appeal. Ironically for a statute of limitations case, Mr. Hays did not timely file the appellant's opening brief in this Court. See Fed. R.App. P. 31(a)(1); 10th Cir. R. 31.1(A)(1). In fact, the brief was filed over two months late. As a result, the Defendants moved this Court to dismiss Ms. Burnham's appeal. See Fed. R.App. P. 31(c).

Ms. Burnham's opening brief was eventually filed. She renews her argument that her March 28, 2003 letter substantially complied with service of process under Kansas law and that her July 15, 2003 amended complaint relates back. She also argues that the District Court inappropriately considered facts outside of those alleged in the complaint in its Rule 12(b)(6) ruling. Finally, for the first time on appeal, she argues that her complaint sounds in contract, thereby garnering a longer statute of limitations. At the request of all parties, we submitted this case without oral argument. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G).

II. MOTION TO DISMISS APPEAL

First, we consider Defendants' motion to dismiss this appeal. It is beyond dispute that Mr. Hays was tardy by two months in filing the opening brief. See Fed. R.App. P. 31(a)(1). Moreover, he offers no explanation for the delay. See Response to Motion of Appellees to Dismiss Appeal (May 13, 2004). Finally, Rule 31(c) specifically states that "[i]f an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal." Fed. R.App. P. 31(c).

The untimely filing of a brief is not jurisdictional, however, and we have discretion to excuse a late filing. See Bartell v. Aurora Public Schs., 263 F.3d 1143, 1146 (10th Cir.2001). As such, it is the practice of this Court "not [to] grant motions to dismiss for failure to follow Fed. R.App. P. 31(a)(1)." Id. Thus, even though a two-month delay is far from a de minimis violation and Rule 31 permits such a motion, we deny Defendants' motion to dismiss this appeal. We expect Mr. Hays to refrain from such dilatory conduct in future appearances before this Court.

III. STATUTE OF LIMITATIONS

Because this is a diversity case, substantive issues are controlled by state law and procedural issues are controlled by federal law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). A federal court sitting in diversity applies state law for statute of limitations purposes. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109-110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Moreover, state law determines when an action is commenced for statute of limitations purposes. Walker v. Armco Steel Corp., 446 U.S. 740, 751, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). Therefore, we apply Kansas law for the statute of limitations questions raised on this appeal.

Ms. Burnham presents two arguments claiming that the District Court erred in dismissing her complaint. She first argues that her complaint included a contract claim and that the statute of limitations had not run with respect to this claim. She also argues that she substantially complied with Kansas's service of process statute before the statute of limitations had run and therefore her suit is not barred.

A. Contract Claim

Ms. Burnham first argues that her complaint sounds in contract as well as tort. In the proceedings below, Ms. Burnham, the Defendants, and the District Court all treated her complaint as asserting a common-law negligence claim. As such, the District Court found that under Kansas law a two-year statute of limitations applied. Kan. Stat. Ann. § 60-513(a)(4).

On appeal, Ms. Burnham argues for the first time that her complaint includes both a contract and negligence claim. The statute of limitations for a contract claim is a minimum of three years. See Kan. Stat. Ann. § 60-512(1) (three-year statute of limitations for unwritten contracts); Kan. Stat. Ann. § 60-511(1) (five-year statute of limitations for written contracts). Because the Defendants were adequately served by July 15, 2003, the statute of limitations for a contract claim would not have run under either of these statutory provisions. Nevertheless, as this argument is raised for the first time on appeal, we will not consider it. See Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1271 (10th Cir.2000).

B. Substantial Compliance and Relation...