Appellate Case: 21-4055 Document: 010110722059 Date Filed: 08/09/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 9, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
TERRY MITCHELL,
Plaintiff - Appellant,
v. No. 21-4055
RICHARD WARREN ROBERTS,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00843-DAO) _________________________________
Walter M. Mason of Dewsnup King Olsen Worel Havas Mortensen, Salt Lake City, Utah for Plaintiff-Appellant.
Dick J. Baldwin (Troy L. Booher with him on the brief) of Zimmerman Booher, Salt Lake City, Utah, for Defendant-Appellee. _________________________________
Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges. _________________________________
ROSSMAN, Circuit Judge. _________________________________
In 1981, appellee Richard Warren Roberts was a federal prosecutor preparing
for a murder trial in Salt Lake City, Utah. Appellant Terry Mitchell, then a teenager,
was a key trial witness for the prosecution. Thirty-five years later, in 2016, Ms. Appellate Case: 21-4055 Document: 010110722059 Date Filed: 08/09/2022 Page: 2
Mitchell sued Mr. Roberts in federal district court in Utah alleging he sexually
assaulted her throughout the criminal trial proceedings.
Mr. Roberts moved to dismiss the complaint with prejudice under Federal Rule
of Civil Procedure 12(b)(6), contending Ms. Mitchell’s claims were time barred. Ms.
Mitchell conceded her claims had expired under the original statute of limitations but
asserted they were revived when the Utah legislature enacted Utah Code
section 78B-2-308(7) (“Revival Statute”) in 2016. The Revival Statute permitted
certain civil claims against alleged perpetrators of child sexual abuse to proceed,
even if “time barred as of July 1, 2016,” if “brought within 35 years of the victim’s
18th birthday, or within 3 years of the effective date of this Subsection (7),
whichever is longer.” § 78B-2-308(7). Ms. Mitchell asserted her claims were timely
filed under the Revival Statute.
At Ms. Mitchell’s request, the magistrate judge1 certified questions to the Utah
Supreme Court concerning the validity of the Revival Statute. The Utah Supreme
Court accepted the certification request and, after briefing and oral argument, issued
a detailed opinion concluding the Utah legislature was prohibited from retroactively
reviving time-barred claims in a manner that deprived defendants like Mr. Roberts of
a vested statute of limitations defense. Based on the Utah Supreme Court’s
conclusion that the Revival Statute was unconstitutional, Mr. Roberts again moved to
1 The parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Throughout this opinion, we also refer to the magistrate judge as “the district court.”
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dismiss with prejudice under Rule 12(b)(6). Ms. Mitchell sought voluntary dismissal
without prejudice under Federal Rule of Civil Procedure 41(a)(2). According to Ms.
Mitchell, the Utah Supreme Court had not foreclosed the possibility that the Utah
Constitution would be amended to permit legislative revival of time-barred child
sexual abuse claims, and on that basis, she proposed a curative condition that would
allow her to sue Mr. Roberts if such an amendment came to pass. The magistrate
judge rejected Ms. Mitchell’s argument and dismissed her complaint with prejudice.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
A. Ms. Mitchell sues Mr. Roberts in federal district court in Utah.
In 2016, the Utah legislature passed House Bill 279—amending the statute of
limitations at Utah Code § 78B-2-308(7) and creating a window for the revival of
time-barred civil claims against alleged perpetrators of child sexual abuse. H.B. 279,
61st Leg., 2016 Gen. Sess. (Utah 2016). Through the Revival Statute, the legislature
recognized “child sexual abuse is a crime that hurts the most vulnerable in our
society,” “destroys lives,” and that “it takes decades for the healing necessary for a
victim to seek redress.” § 78B-2-308(1)(a), (e). Where an action would otherwise be
time barred “as of July 1, 2016,” the Revival Statute allowed it to be “brought within
35 years of the victim’s 18th birthday, or within [3] years of the effective date of this
Subsection (7), whichever is longer.” Id. § 78B-2-308(7). It was signed into law on
March 29, 2016, with an effective date of May 10, 2016. See Utah H.B. 279.
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On March 16, 2016, before the Revival Statute was enacted, Ms. Mitchell filed
a diversity action against Mr. Roberts in federal district court in Utah claiming he
sexually assaulted her in 1981.2 Mr. Roberts moved to dismiss with prejudice under
Federal Rule of Civil Procedure 12(b)(6), arguing Ms. Mitchell’s claims were time
barred. After the Revival Statute became effective, but before the magistrate judge
ruled on the pending motion to dismiss, Ms. Mitchell voluntarily dismissed her action
without prejudice under Federal Rule of Civil Procedure 41(a)(1).
On July 29, 2016, the day after she voluntarily dismissed her first lawsuit, Ms.
Mitchell initiated a new federal case in Utah, filing a substantially similar complaint
against Mr. Roberts.3 While she conceded her claims against Mr. Roberts were time
barred “as of July 1, 2016,” § 78B-2-308(7), Ms. Mitchell maintained her case was
timely filed under the Revival Statute. Mr. Roberts then moved to dismiss this second
lawsuit with prejudice under Rule 12(b)(6). He argued the “new legislation upon
which [Ms.] Mitchell rests her entire case”—the Revival Statute—was “invalid under
longstanding Utah law.” Aplt. App. at 34, 38. Utah law permitted only the extension
2 In this first complaint, Ms. Mitchell claimed the statute of limitations tolled under Utah Code section 78-12-35 because Mr. Roberts allegedly left Utah in March 1981 and “never returned” to the state. Supp. App. vol. 1 at 2 (Pl.’s Compl. and Jury Demand 10-11, ECF No. 2). Her complaint also invoked the “delayed discovery” statute of limitations provision because Ms. Mitchell had repressed her memories of the alleged abuse until 2013. Id. When Ms. Mitchell refiled her lawsuit, she did not reassert tolling or delayed discovery allegations. 3 In her opening brief, Ms. Mitchell explains she chose to dismiss the first complaint—rather than to amend it—because she anticipated Mr. Roberts would argue the Revival Statute only “revived” claims filed after May 10, 2016—the statute’s effective date. See Opening Br. at 14 n.38.
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of limitations periods “while active,” Mr. Roberts contended, but prohibited “revival
once [the statute of limitations had] expired.” Id. at 39. According to Mr. Roberts,
Ms. Mitchell’s case fell into the latter category, so her claims against him were time
barred and “subsequent legislation [did] not alter that inescapable fact.” Id. at 41.
Ms. Mitchell opposed Mr. Roberts’s motion and, in the alternative, asked the
magistrate judge to certify the case to the Utah Supreme Court. In support of
certification, Ms. Mitchell observed the Utah Supreme Court had not yet “resolved
the precise question of whether the courts must give effect to [the Revival Statute’s]
clearly stated legislative intent” to revive previously time-barred child sexual abuse
claims. Id. at 76 (capitalization omitted). She also argued that “[d]ecisions by the
Utah Supreme Court are inconsistent—or at least some are incomplete—regarding
the duty of the courts to give effect” to such legislative intent. Id. (capitalization
omitted). Mr. Roberts opposed Ms. Mitchell’s certification request, contending “state
law on the dispositive issue is settled.” Supp. App. vol. 1 at 50 (emphasis omitted).
The magistrate judge granted Ms. Mitchell’s request and certified two
questions to the Utah Supreme Court4: (1) “Can the Utah Legislature expressly revive
time-barred claims through a statute?” and (2) “[D]oes the language of Utah Code
section 78B-2-308(7), expressly reviving claims for child sexual abuse that were
4 After the Utah Supreme Court accepted the certification request, the magistrate judge administratively closed the federal case. All pending motions were mooted during the administrative closure “subject to being reopened or renewed when (1) the Utah Supreme Court issues a ruling . . . and (2) the parties file a motion within thirty (30) days of such a decision, attaching the decision and identifying which motions need to be reopened, renewed, or refiled.” Aplt. App. at 6.
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barred by the previously applicable statute of limitations as of July 1, 2016, make
unnecessary the analysis of whether the change enlarges or eliminates vested
rights?”5 Aplt. App. at 106-07. The Utah Supreme Court accepted the certification
request and also ordered the parties to submit supplemental briefing on a related
question of state constitutional law—whether the Utah Constitution gives the Utah
legislature the power to revive time-barred claims.6
B. The Utah Supreme Court holds the Revival Statute is unconstitutional.
Three years later, on June 11, 2020, the Utah Supreme Court issued a
unanimous opinion holding “the Utah Legislature is constitutionally prohibited from
retroactively reviving a time-barred claim in a manner depriving a defendant of a
vested statute of limitations defense.” Mitchell v. Roberts, 2020 UT 34, ¶ 5, reh’g
denied (July 13, 2020). Because the Utah Supreme Court’s holding that the Revival
Statute was unconstitutional informed the district court’s decision to dismiss Ms.
Mitchell’s case with prejudice, we describe the opinion in detail.
5 At the magistrate judge’s request, both parties submitted proposed certification questions, but the magistrate judge ultimately submitted the questions she had formulated. 6 The Utah Supreme Court queried: “Under the Utah Constitution, does the Utah Legislature have the power to revive a claim that was barred by the previously applicable statute of limitations, and if so, what limitations, if any, does the Utah Constitution impose on that power?” Supp. App. vol. 1 at 55-56. The supreme court directed the parties to, among other matters, “examine the original public meaning of the Utah Constitution,” the grant of legislative power in the due process clause, and “what standard or constitutional analysis Utah courts should apply in assessing whether a specific legislative enactment that explicitly purports to revive time-barred claims comports with the Utah Constitution.” Id. at 56.
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The Utah Supreme Court answered the certified questions by looking first to
its precedent, which “foreclosed” Ms. Mitchell’s position that the legislature had the
“power to vitiate a vested right in a ripened limitations defense.” Id. ¶ 10. “Beginning
in 1897 and continuing for over a century, [the Utah Supreme Court] has repeatedly
stated that the legislature lacks the power to revive a plaintiff’s claim in a manner
that vitiates a ‘vested’ right of a defendant.” Id. ¶ 11. This “vested rights” limitation
on the Utah legislative power “is firmly rooted in [Utah] case law” and “has long
been extended to the specific vested right asserted by [Mr.] Roberts—the right to
retain a statute of limitations defense after a plaintiff’s claim has expired under
existing law.” Id. From In re Handley’s Estate, 49 P. 829, 832 (Utah 1897), where
the Utah Supreme Court first articulated the “vested rights” limitation on legislative
power, to Ireland v. Mackintosh, 61 P. 901, 902 (Utah 1900), which extended that
limitation to the specific right asserted here by Mr. Roberts, the Utah Supreme Court
concluded its long-standing precedent “merits respect as a matter of stare decisis.”
Id. ¶¶ 11-14; see also id. ¶ 35 (“These cases show that founding-era Utahns
understood, according to the constitutional orthodoxy of the era, that the Utah
Legislature lacked the power to retroactively divest vested rights.”). And that
precedent made clear the “vested rights” limitation operated as a “hard limitation on
the legislative power—a clear prohibition on legislative attempts to vitiate vested
rights.” Id. ¶ 25.
The Utah Supreme Court further explained the “vested rights” limitation is
“consistent with the original understanding of the Utah Constitution.” Id. ¶ 30. Early
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Utahns “viewed such legislative encroachment into the domain of the judiciary as
unconstitutional both as a matter of the principle of separation of powers itself and
under the due process clause.” Id. ¶ 34. The Utah Supreme Court engaged in a
historical analysis detailing how original understandings in the era of the framing of
the Utah Constitution wove together due process, legislative power, and vested
rights:
In the era of the framing of the Utah Constitution, the public understood the principle of “due process,” at least in part, as a matter relegating certain functions to the courts and not the legislature. The legislature was viewed as prohibited from exercising judicial functions—in interpreting and applying the law to the disposition of a case in which a party’s rights or property were in dispute. “This meant the legislature could not retrospectively divest a person of vested rights that had been lawfully acquired under the rules in place at the time.” The legislature “could enact general laws for the future, including the rules for acquisition and use of property, but [it] could not assume the ‘judicial’ power of deciding individual cases.” Retroactive divestment statutes were viewed as judicial in nature (in the nature of “deciding individual cases”) because these laws were backward looking and operated to deprive individuals of rights and property “acquired under the rules in place at the time” of acquisition. . . . Thus, valid legislative acts, in contrast to retroactive divestment statutes, stated the law going forward rather than “determin[ing] specific applications of law or . . . punish[ing] past acts”—functions relegated to the judiciary. Id. ¶ 34 (alterations in original) (footnotes and citations omitted).
This historical analysis confirmed “[t]he key question that arose at the [state
constitutional] convention was not whether the legislature lacked the power to divest
vested rights”—it did—“but which rights qualified as vested.” Id. ¶ 42 (emphases
added). “A ripened limitations defense,” the Utah Supreme Court determined, “was a
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vested right that could not be retroactively divested by the legislature.” Id. ¶ 46
(supreme court’s emphasis); see also id. ¶¶ 48-49.
Finally, the Utah Supreme Court recognized the public policy objectives
animating the Revival Statute but ultimately determined “the limits on the legislature
remain despite the reasonable basis for its policy judgments in this field.” Id. ¶ 10;
see also id. ¶¶ 6-7, 50-52.
C. Ms. Mitchell seeks voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2).
After the Utah Supreme Court decided the certified questions, the underlying
federal proceedings picked up where the parties left off. Mr. Roberts moved to
reopen his previously filed motion to dismiss, contending “the Utah Supreme Court’s
holding confirms that each of [Ms.] Mitchell’s claims is time-barred and compels
dismissal of [Ms.] Mitchell’s Complaint with prejudice.” Aplt. App. at 136. In
response, Ms. Mitchell moved for voluntary dismissal without prejudice, recognizing
“[Mr.] Roberts achieved a determination (at least for the time being) of the validity of
the Revival Statute. That determination is conclusive until[,] . . . as the Utah Supreme
Court has suggested, the Utah Constitution is amended.” Id. at 146. According to Ms.
Mitchell, the Utah Supreme Court “indicated that the only remedy for victims of
child sexual abuse whose claims are time-barred is through a constitutional
amendment, which legislators have announced they are exploring.” Id. at 142
(footnotes omitted). Anticipating a change in the law, Ms. Mitchell urged the
magistrate judge to grant dismissal without prejudice on the condition that she could
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sue Mr. Roberts again only if the Utah Constitution was amended to permit
legislative revival of time-barred claims.
Ms. Mitchell believed this approach—voluntary dismissal without prejudice
subject to a curative condition—would mitigate any potential prejudice to Mr.
Roberts because he would immediately “enjoy the full benefit of his defense” to her
claims and would face no future litigation unless the Utah Constitution were
amended. Id. at 144; see also id. at 197, 207. She emphasized the equities favored her
proposed without-prejudice disposition: “Unless this matter is dismissed without
prejudice,” Ms. Mitchell contended, “a highly unjust and perverse outcome will
result” because, “[a]fter fighting for the validity of the Revival Statute, [she] would
be the only one among all the victims of child sex abuse in Utah whose cases were
previously time-barred by a prior statute of limitations who cannot benefit from an
amendment to the Utah Constitution, which the Utah Supreme Court suggested in its
Opinion.” Id. at 205.
The magistrate judge ruled against Ms. Mitchell, dismissing the case with
prejudice.
This timely appeal followed.
II. Discussion
The issue before us is narrow. There is no dispute that Utah law grants Mr.
Roberts a vested statute of limitations defense; Ms. Mitchell concedes her claims are
time barred under Utah law; and Ms. Mitchell cannot rely on the Revival Statute
because it is unconstitutional. Ms. Mitchell’s appellate challenge centers on the
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district court’s decision to dismiss her lawsuit against Mr. Roberts with prejudice,
rather than to grant voluntary dismissal without prejudice on the condition she
proposed.
Federal Rule of Civil Procedure 41 governs voluntary and involuntary
dismissals.7 Typically, when a defendant has not filed an answer or moved for
summary judgment, Rule 41(a)(1) permits a plaintiff to dismiss an action without a
court order simply by filing a notice of dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(i).
But a voluntary dismissal “operates as an adjudication on the merits” if the plaintiff
previously voluntarily dismissed an action based on the same claim. Fed. R. Civ. P.
41(a)(1)(B). Because Ms. Mitchell voluntarily dismissed her first lawsuit, and then
refiled many of the same claims against Mr. Roberts after the Revival Statute’s
effective date, she was required, under Rule 41(a)(2), to seek leave to dismiss her
second lawsuit without prejudice.
Rule 41(a)(2) states, “Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff’s request only by court order.” Fed. R. Civ. P. 41(a)(2)
(emphasis added); see also 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2364 (4th ed. 2022 update). Ordinarily, a dismissal under
Rule 41(a)(2) will be without prejudice. See Fed. R. Civ. P. 41(a)(2) (“Unless the
order states otherwise, a dismissal under this paragraph (2) is without prejudice.”).
Rule 41(a)(2) also permits a court to dismiss an action without prejudice “on terms
7 Involuntary dismissals under Federal Rule of Civil Procedure 41(b) are not at issue in this case.
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that the court considers proper.” Id. “The rule is designed primarily to prevent
voluntary dismissals which unfairly affect the other side, and to permit the imposition
of curative conditions.” Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005)
(quoting Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir. 1996)).
We review for an abuse of discretion the district court’s decision denying
voluntary dismissal without prejudice under Rule 41(a)(2) and declining to impose a
curative condition. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)
(voluntary dismissal); Am. Nat’l Bank & Tr. Co. of Sapulpa v. Bic Corp., 931 F.2d
1411, 1412 (10th Cir. 1991) (curative conditions). As a general matter, a court abuses
its discretion if it renders a decision that is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” Phillips USA, 77 F.3d at 357 (quoting United States v.
Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994)). “A clear example of an abuse of
discretion exists where the trial court fails to consider the applicable legal standard or
the facts upon which the exercise of its discretionary judgment is based.” Ohlander,
114 F.3d at 1537 (citation omitted).
Ms. Mitchell contends the district court abused its discretion by denying her
motion under Rule 41(a)(2) and advances several arguments to support reversal. She
contends the district court (1) applied the wrong legal standard by adopting a per se
rule that the loss of a vested statute of limitations defense is an absolute bar to
voluntary dismissal without prejudice; (2) failed to adequately consider her equities
in the Rule 41(a)(2) analysis; and (3) mistakenly rejected her proposed curative
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condition because, according to Ms. Mitchell, it obviated any prejudice to Mr.
Roberts. We consider and reject each argument.
A. The district court’s decision to deny Ms. Mitchell’s request for voluntary dismissal without prejudice was not an abuse of discretion.
In Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997), we articulated the
analytical framework district courts in this circuit should follow when considering a
motion for voluntary dismissal under Rule 41(a)(2). A district court should normally
grant dismissal without prejudice, absent “legal prejudice” to the defendant. Id. at
1537. As we have acknowledged, “The parameters of what constitutes ‘legal
prejudice’ are not entirely clear, but relevant factors the district court should consider
include: [1] the opposing party’s effort and expense in preparing for trial;
[2] excessive delay and lack of diligence on the part of the movant; [3] insufficient
explanation of the need for a dismissal; and [4] the present stage of litigation.” Id.
(citing Phillips U.S.A., Inc., 77 F.3d at 358).8 “Each factor need not be resolved in
favor of the moving party for dismissal to be appropriate, nor need each factor be
resolved in favor of the opposing party for denial of the motion to be proper.” Id.
(citation omitted). Rather, these traditional factors serve as “practical” guideposts for
a district court tasked with deciding what constitutes “legal prejudice”—the ultimate
8 We refer to these four factors as “the traditional factors,” like we did in Ohlander. See 114 F.3d at 1538; see also Baeke, 413 F.3d at 1124 (explaining legal prejudice is a function of these four “practical” factors).
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question to be answered, on a case-by-case basis, when deciding whether to grant
voluntary dismissal without prejudice. Baeke, 413 F.3d at 1124.
The traditional factors are “by no means exclusive” and “[a]ny other relevant
factors should come into the district court’s equation” when deciding a motion under
Rule 41(a)(2). Ohlander, 114 F.3d at 1537. For example, as Ohlander itself
demonstrates, a district court is “obligated to consider the novelty of the
circumstances surrounding th[e] case.” Id. Ohlander involved an international child
custody dispute where a young child was repeatedly uprooted during the first four
years of her life by parents seeking to reestablish contact with her (but not
necessarily with one another). Id. at 1534-35. After the parents initiated two custody
proceedings—one in federal district court and another in Sweden—the mother moved
under Rule 41(a)(2) to dismiss her federal case because the child no longer lived in
the United States. Id. at 1535-36. We emphasized the district court was “impressed
with a duty to exercise its discretion by carefully appraising . . . factors unique to the
context of th[e] case,” such as “interests in comity, uniform interpretation of the
[Hague] Convention and the importance of giving import to the Hague Convention’s
intended purpose as relevant to the motion to dismiss.” Id. at 1537.
Ohlander also teaches district courts “should endeavor to insure substantial
justice is accorded to both parties” under Rule 41(a)(2). Id. To that end, district
courts should “consider the equities facing not only the defendant but also those
facing the plaintiff.” Id. And, in what Ohlander described as “complex, emotional
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case[s],” it is “critically important” for the district court to “give the equities of the
plaintiff the attention deserved.” Id.
1. The district court resolved Ms. Mitchell’s motion under the correct legal standard.
Ms. Mitchell contends the magistrate judge applied the wrong legal standard
under Rule 41(a)(2) by “erroneously deciding that [Mr.] Roberts’s statute of
limitations defense created an absolute bar to dismissal without prejudice.” Opening
Br. at 8. According to Ms. Mitchell, the magistrate judge disregarded the factors in
Ohlander and instead “imposed a bright-line rule that loss of a statute-of-limitations
defense in Utah is per se legal prejudice.” Id. at 5. Mr. Roberts urges affirmance,
contending the magistrate judge “carefully consider[ed] the relevant factors and
weigh[ed] the equities facing both parties . . . [She] did not adopt a per se rule or base
[her] decision on any single factor.” Answer Br. at 10. We agree with Mr. Roberts.
As a threshold matter, the parties debate how the loss of a vested statute of
limitations defense factors into the analysis under Rule 41(a)(2). There is some
disagreement among the federal courts of appeal as to whether loss of a statute of
limitations defense constitutes per se legal prejudice. Compare Phillips v. Ill. Cent.
Gulf R.R., 874 F.2d 984 (5th Cir. 1989) (loss of statute of limitations defense is per
se legal prejudice); Wojtas v. Cap. Guardian Tr. Co., 477 F.3d 924 (7th Cir. 2007)
(same); Metro. Fed. Bank, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257 (8th Cir. 1993)
(same); with McCants v. Ford Motor Co., 781 F.2d 855 (11th Cir. 1986) (loss of
statute of limitations defense is a factor to be weighed with others). But we need not
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wade into this skirmish because the magistrate judge never held, as Ms. Mitchell
contends, that the loss of a vested statute of limitations defense is an absolute bar to
voluntary dismissal without prejudice. Rather, as we will explain, the magistrate
judge appropriately assessed Ms. Mitchell’s request for voluntary dismissal under the
Ohlander balancing framework.
First, the magistrate judge did not impose a bright-line rule that dismissal with
prejudice under Rule 41(a)(2) is automatically required where, as here, the defendant
would otherwise lose a statute of limitations defense under state law. Rather,
appropriately guided by Ohlander, the magistrate judge engaged in a methodical
analysis, explaining: “The court first addresses the Tenth Circuit’s list of factors to be
considered on a Rule 41(a)(2) motion to dismiss, then turns to whether the loss of a
statute of limitations defense constitutes legal prejudice, and other equitable
considerations.” Aplt. App. at 216.
Beginning with the traditional factors from Ohlander, the magistrate judge
first considered Mr. Roberts’s minimal effort and expense in preparing for trial, the
early stage of the litigation, Ms. Mitchell’s diligence, and her adequate explanation of
the need for dismissal without prejudice. These factors, the court determined,
supported Ms. Mitchell or were neutral. The magistrate judge then took account of
“the equities facing both the plaintiff and the defendant,” id. at 222, and, on balance,
found they favored Mr. Roberts. The magistrate judge also identified a “unique”
consideration in this case—Mr. Roberts’s right to retain a statute of limitations
defense under Utah law.
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Recall, Ohlander instructed district courts evaluating a request for voluntary
dismissal without prejudice to consider the traditional factors, the equities facing
both the plaintiff and the defendant, and “any additional factors unique to the context
of th[e] case.” 114 F.3d at 1537; see also Baeke, 413 F.3d at 1124. Nowhere did the
magistrate judge say her ruling was animated by a per se rule nor does the court’s
analysis reflect she relied on any single factor. Ohlander provides a useful
counterpoint. There, we found the district court had abused its discretion by denying
a without-prejudice dismissal “solely on the grounds of [] contempt and without
considering any additional circumstances.” 114 F.3d at 1537 (emphases added).
Here, by contrast, the magistrate judge viewed the loss of a vested statute of
limitations defense as an “additional factor[] unique to the context of this case,” 114
F.3d at 1537, which she weighed together with the traditional factors and the parties’
equities. This was proper under our precedents.
Next, to the extent Ms. Mitchell contends the magistrate judge’s fidelity to the
Utah Supreme Court opinion amounted to application of a per se rule, in
contravention of Ohlander, we reject the argument. The magistrate judge acted
properly, as Mr. Roberts points out, in relying on the Utah Supreme Court’s opinion
in the Rule 41(a)(2) analysis.
A district court sitting in diversity must apply the law of the state as it has
been determined by the highest court of that state. Erie R.R. v. Tompkins, 304 U.S. 64
(1938); Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). Certification is
an “important tool for federal courts sitting in diversity[] since it frees them from
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having to speculate how state courts will decide important questions of state law.”
Grover v. Eli Lilly & Co., 33 F.3d 716, 719 (6th Cir. 1994); Utah R. App. P. 41
(allowing certification requests for legal questions by federal courts). “When a state
supreme court accepts a certified question, it voluntarily undertakes a substantial
burden and its resolution of the issue must not be disregarded.” Grover, 33 F.3d at
719.
Here, Ms. Mitchell is the party who requested certification, insisting “the
question certified is a controlling issue of law in a proceeding pending before the
certifying court.” Aplt. App. at 76 (citing Utah R. App. P. 41). Indeed, the Utah
Supreme Court explained its “role in addressing [the] certified questions [was] to
facilitate the disposition” of the underlying federal case. Mitchell, ¶ 4; see also id. at
n.2 (citation omitted) (noting the Utah Supreme Court’s role on certification is “to
resolve disputed questions of state law in a context and manner useful to the
resolution of a pending federal case”). The district court likewise understood that the
Utah Supreme Court’s answers to the questions certified would be directly relevant to
deciding the parties’ cross motions for dismissal. See Ohlander, 114 F.3d at 1537
(recognizing “the importance of giving import to the Hague Convention’s intended
purpose as relevant to the motion to dismiss” in the Rule 41(a)(2) analysis). Under
the circumstances, it comes as no surprise that the Utah Supreme Court’s opinion
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figured prominently in the district court’s analysis of Ms. Mitchell’s request to
dismiss the case without prejudice.9
Moreover, the magistrate judge’s decision to honor the Utah Supreme Court’s
opinion in adjudicating the federal case aligns with the interests in comity directly
implicated in the certification context. See Richardson ex rel. Richardson v. Navistar
Int’l Transp. Corp., 231 F.3d 740, 743 (10th Cir. 2000) (“‘Ordinarily, a state court’s
answer to a certified question is final,’ binding the parties and therefore becoming the
law of the case.” (citation omitted)). Indeed, Ohlander identified “interests in
comity” as a “factor[] unique to the context of [a] case” that district courts should
“carefully apprais[e]” in the Rule 41(a)(2) analysis. 114 F.3d at 1537.
The magistrate judge also correctly understood the holding of the Utah
Supreme Court’s opinion and the import of that decision in the federal case. The Utah
Supreme Court explained that “for well over a century we have specifically held that
a defendant acquires a ‘vested right’ in a statute of limitations defense once the
limitations period has run.” Mitchell, ¶ 25. Under Utah law, vested rights are a
“well-established class of property,” id. ¶ 43, “beyond the reach of legislative
authority” and “protected from retroactive legislative interference,” id. ¶¶ 48-49.
Accordingly, the Utah Supreme Court held that, under Utah law, Mr. Roberts
acquired a vested right in his statute of limitations defense.
9 If Ms. Mitchell now argues the district court erred by relying too heavily on the Utah Supreme Court’s opinion, her own litigation strategy invited that outcome.
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Under these circumstances, the district court concluded dismissal without
prejudice would deprive Mr. Roberts of a vested right under Utah law, resulting in
legal prejudice to him that outweighed other relevant considerations in the Ohlander
analysis. The magistrate judge’s decision does not demonstrate an erroneous
application of a per se legal rule, as Ms. Mitchell contends, but rather, the correct
application of Utah law. We discern no abuse of discretion.
2. The district court did not give insufficient weight to Ms. Mitchell’s equities.
In Ohlander, we explained that, in adjudicating a motion under Rule 41(a)(2),
a district court “should endeavor to insure substantial justice is accorded to both
parties,” 114 F.3d at 1537—this requires district courts to consider the equities
advanced by both the plaintiff and the defendant. We observed that in a “complex,
emotional case,” “it is critically important when considering a motion to dismiss, the
court give the equities of the plaintiff the attention deserved.” Id. Here, the magistrate
judge considered both parties’ equities and concluded they weighed in favor of Mr.
Roberts and dismissal with prejudice.
On appeal, Ms. Mitchell contends hers is precisely the sort of complex,
emotional case contemplated by Ohlander yet her equities were not given the
attention deserved. There can be no serious question the magistrate judge confronted
a “complex, emotional case” when adjudicating Ms. Mitchell’s motion under Rule
41(a)(2), but we find no abuse of discretion in the district court’s assessment of the
equities.
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As alleged in Ms. Mitchell’s complaint, she was sixteen years old when she
met Mr. Roberts during a criminal prosecution in which he was a prosecutor and she
was a government witness. She alleged Mr. Roberts repeatedly sexually assaulted her
and coerced her to keep silent. According to Ms. Mitchell, the abuse—which Mr.
Roberts denies10—caused her years of significant physical and emotional pain.
Under the circumstances, Ms. Mitchell contends the magistrate judge should
have given more weight under Ohlander to the unique nature of child sexual abuse
claims, which animated the Revival Statute.11 Ms. Mitchell points to legislative
history explaining that “research over the last 30 years has shown that it takes
decades for children and adults to pull their lives back together and find the strength
to face what happened to them.” § 78B-2-308(1)(b). Ms. Mitchell also observes the
Utah Supreme Court, despite holding the Revival Statute unconstitutional,
“acknowledge[d] the reasonable policy basis for the judgment the legislature made in
seeking to revive previously time-barred claims asserted by victims of child-sex
abuse.” Mitchell, ¶ 6; see id. ¶ 50 (recognizing that child sexual abuse is a “‘massive
10 In his motion to dismiss, Mr. Roberts asserted he had “a brief, consensual intimate relationship [with Ms. Mitchell] after her role in the . . . trial ended.” Aplt. App. at 33. 11 Ms. Mitchell did not specifically argue in the district court, as she does now, that the equities favored her because of the nature of child sexual abuse claims and the policy objectives underlying the Revival Statute. Cf. Aplt. App. at 142-43, 149. Mr. Roberts does not contend these arguments are waived on appeal. Under the circumstances, we exercise our discretion to address them. United States v. Jarvis, 499 F.3d 1196, 1201-02 (10th Cir. 2007) (“Whether to address the argument despite the litigant’s failure to raise it below is subject to this court’s discretion based on the circumstances of the individual case.” (citation omitted)).
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national problem’ whose devasting effects . . . often span a lifetime,” the supreme
court “appreciate[d] the moral impulse and substantial policy justifications”
animating the Revival Statute).
Though the equitable balance did not tilt in Ms. Mitchell’s favor, the dismissal
order reflects the magistrate judge considered the arguments made by Ms. Mitchell
about her equities, including: (1) dismissal without prejudice would result in a
“highly unjust and perverse outcome” because, according to Ms. Mitchell, after
advocating for the validity of the Revival Statute, she alone would be unable to
pursue her claims if there were a constitutional amendment permitting legislative
revival of time-barred claims; (2) if Ms. Mitchell had not dismissed her prior action,
she could have dismissed this case without the court’s permission; and (3) any legal
prejudice to Mr. Roberts could be mitigated by Ms. Mitchell’s proposed curative
condition. Aplt. App. at 222. Given the record as a whole, we cannot agree with Ms.
Mitchell that the magistrate judge was unaware of the policy objectives animating the
Revival Statute—indeed, it appears the magistrate judge considered Ms. Mitchell’s
arguments precisely against that backdrop. To be sure, the magistrate judge did not
focus specifically on the underpinnings of the Revival Statute. But as Ms. Mitchell
acknowledges, the Utah Supreme Court’s opinion, on which the magistrate judge
relied, described at length the “reasonable policy basis” for the Revival Statute.
Mitchell, ¶ 6; see also id. ¶¶ 50-52.
Thus, the magistrate judge properly exercised her discretion by considering the
equities facing both parties before concluding Ms. Mitchell’s equities “d[id] not
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outweigh the plain legal prejudice to Mr. Roberts.” Aplt. App. at 222. As the
magistrate judge observed, Ms. Mitchell may understandably consider this result
“harsh and distressing.” Id. But, applying abuse of discretion review, we discern no
error, on balance, in the attention paid to Ms. Mitchell’s equities.
B. The district court did not abuse its discretion by rejecting Ms. Mitchell’s proposed curative condition.
Ms. Mitchell asked the magistrate judge to grant voluntary dismissal without
prejudice on the condition that she be “prevent[ed] . . . from refiling her claims
unless the Utah Constitution is amended to revive her claims.” Aplt. App. at 207. The
magistrate judge rejected this proposal, explaining Ms. Mitchell’s argument
“misse[d] the point” and the dismissal condition “d[id] nothing to prevent legal
prejudice to Mr. Roberts.” Id. at 222. On appeal, Ms. Mitchell challenges this ruling,
contending “[r]egardless of whether [the] loss of a statute of limitations defense can
sometimes constitute legal prejudice, such a loss did not constitute legal prejudice
here, especially because of the curative condition” she proposed.12 Opening Br. at 28
(capitalization omitted). We are not persuaded.
Rule 41(a)(2) gives the district court discretion “to dismiss an action without
prejudice ‘upon such terms and conditions as the court deems proper.’” Am. Nat’l
Bank, 931 F.2d at 1412 (quoting Fed. R. Civ. P. 41(a)(2)). Commonly called curative
conditions, these are terms of dismissal “designed to alleviate any prejudice a
12 To the extent Ms. Mitchell contends Mr. Roberts suffers no legal prejudice simply because the Utah Supreme Court left open the possibility of a constitutional amendment, this argument rests on a misreading of Utah law, so we reject it.
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defendant might otherwise suffer upon refiling of an action.” Id. (citation omitted).
Importantly, “[t]he district court . . . should impose only those conditions which
actually will alleviate [such] harm.” Id. (citation omitted).
Typically, curative conditions include payment of a defendant’s costs and fees,
making discovery available in a subsequent proceeding, or refiling certain claims in
another jurisdiction within a limited time. See 9 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2366 (4th ed. 2022 update); McCants, 781
F.2d at 860 (“Where a subsequent similar suit between the parties is contemplated,
expenses awarded might be limited to those incurred in discovering information and
researching and pressing legal arguments that will not be useful in the later suit.”
(citation omitted)).
Here, Ms. Mitchell’s proposed curative condition rests squarely on a
misunderstanding of Utah law. According to Ms. Mitchell, the Utah Supreme Court
suggested in its opinion on the certified questions that the Utah Constitution is likely
to be amended to permit legislative revival of time-barred child sexual abuse claims.
Under these circumstances, Ms. Mitchell reasons, her claims against Mr. Roberts
should not be dismissed with prejudice but only barred “unless and until” the Utah
Constitution is amended. See Opening Br. at 34-36.
Nothing in the Utah Supreme Court’s opinion supports Ms. Mitchell’s
contention. Nowhere did the Utah Supreme Court suggest, as Ms. Mitchell claims,
that the Utah Constitution is likely to be amended. Ms. Mitchell appears to rest her
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entire argument on the phrase “unless and until,” which appears twice in the opinion.
The supreme court observed:
Our laws are written down for a reason. And a key reason is to establish clear, fixed limits that the public may rely on—unless and until the law is repealed or amended by established procedures for doing so. The people of Utah retain the power to amend the Utah Constitution to alter the legislature’s authority in this area if they see fit. But the document as it stands (and as originally understood) forecloses the legislature’s power to enact legislation that retroactively vitiates a ripened statute of limitations defense. .... The question presented for us, however, is not a matter of policy. We are asked to give voice to the limitations on our government established in the charter—the constitution—ratified by the voice of the people. The terms of that charter merit our respect unless and until they are amended or repealed. And we must enforce the original understanding of those terms whether or not we endorse its dictates as a policy matter. Mitchell, ¶¶ 9, 51 (emphases added) (footnote omitted).
Ms. Mitchell’s reliance on the words “unless and until” is wholly misplaced.
The Utah Supreme Court used the words “unless and until” not to forecast a
constitutional amendment, as Ms. Mitchell insists, but to assert an uncontroversial
observation: the Utah Constitution can be amended. We also reject Ms. Mitchell’s
contention that an amendment is likely simply because the Utah Supreme Court
endorsed the policy rationales underlying the Revival Statute. The only question
resolved by the Utah Supreme Court concerned a matter of law, not policy. Mitchell,
¶ 51. The Utah Supreme Court’s opinion simply does not stand for the proposition
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that a constitutional amendment permitting legislative revival of child sexual abuse
claims is forthcoming.13
In any event, the sort of open-ended curative condition offered by Ms.
Mitchell—which rests on mere speculation about possible changes in Utah law—
has no meaningful limiting principle. A curative condition must be tethered to the
law as it stands today, not rest on conjecture about what the law might someday be.
Accordingly, we conclude the magistrate judge properly considered, and
rejected, Ms. Mitchell’s proposed curative condition. See Grover, 33 F.3d at 719 (“At
the point when the law clearly dictates a result for the defendant, it is unfair to
subject him to continued exposure to potential liability by dismissing the case
without prejudice.” (citation omitted)). Mr. Roberts has already twice been sued by
Ms. Mitchell and twice asserted a valid statute of limitations defense. The curative
condition proposed by Ms. Mitchell is no cure at all—it does not alleviate harm but
13 In her appellate briefing, Ms. Mitchell cites various online news articles describing the prospect of Utah state legislators introducing a constitutional amendment during the 2022 legislative session. Mr. Roberts argues we should not consider these materials because they were not presented to the magistrate judge. See Answer Br. at 4 n.1. We agree. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (explaining our review is limited “to the materials adequately brought to the attention of the district court by the parties”); see also Verlo v. Martinez, 820 F.3d 1113, 1125 (10th Cir. 2016) (“We will not hold that the district court abused its discretion based on evidence not before it when it ruled.” (citation omitted)). Ms. Mitchell never requested we take judicial notice of these materials, and we decline to do so sua sponte. See Fed. R. Evid. 201. After oral argument, the parties filed supplemental authority letters under Federal Rule of Appellate Procedure 28(j) alerting us that a proposed constitutional amendment was put to a voice vote in Utah’s House of Representatives on February 10, 2022, and failed. See Utah H.J. Res. 4, 64th Leg., Gen. Sess. (Utah 2022).
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only exposes Mr. Roberts to the possibility of a third lawsuit at some unknown time.
This disrupts principles of finality and repose and avoids entirely the Utah Supreme
Court’s pronouncement of the property-like vested right in a statute of limitations
defense. We discern no error in the magistrate judge’s decision to reject such a
proposal.
III. Conclusion
The magistrate judge did not abuse her discretion by denying Ms. Mitchell’s
motion for voluntary dismissal without prejudice and rejecting her proposed curative
condition. Under the deferential standard that governs our review, we affirm the
decision to dismiss this action with prejudice.