The Magistrate Judge correctly found that the issue is governed by Tenth Circuit precedent. In Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994), the court stated " a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim." In their objection, plaintiffs contend that the Court should invoke the doctrine of equitable tolling and find the statute of limitations was tolled while the parties " argued" over who was the correct relator in 89-C-437.

Graham contends that because Smith did not attempt to amend or dismiss the first lawsuit prior to filing the second petition, the second petition is a "separately filed claim" and does not relate back to the filing date of the first petition. Graham cites three federal cases in support of her assertion. Barr v. United States, 1999 WL 314634 (10th Cir. 1999) (unpublished opinion); Benge v. United States, 17 F.3d 1286 (10th Cir. 1994); Pipkin v. U.S. Postal Service, 951 F.2d 272 (10th Cir. 1991). In all three cases, the plaintiffs voluntarily dismissed a timely filed petition before filing a second petition after the expiration of a limitation period.

This court has previously rejected this very argument. Pipkin v. United States Postal Serv., 951 F.2d 272, 274-75 (10th Cir. 1991); see also Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). Although state law determines whether there is substantive liability under the FTCA, see Cannon v. United States, 338 F.3d 1183, 1192 (10th Cir. 2003), federal law defines the applicable limitations period, Pipkin, 951 F.2d at 274-75.

Moreover, contrary to Plaintiff's contention, it is settled that "a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim." Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). The Court notes that Plaintiff has not asserted that the New Mexico statute of limitations "saving statute" might operate to save his claims, and it seems the statute would not apply because it offers no relief where the prior case was dismissed for want of prosecution.

Id. at 413 (footnote omitted). Accord, e.g., Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) ("[A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim."); Bui v. IBP, Inc., 205 F. Supp.2d 1181, 1184085 (D. Kan. 2002) ("Plaintiff cites no cases, and the court has found none, supporting his unusual assertion that Rule 15 should be applied to permit a pleading in one case to 'relate back' to a pleading in a separate case.

Further, the Tenth Circuit has held that Rule 15 has no application where a party does not seek to "amend" or "supplement" the original pleading, but rather files a separate lawsuit. In Benge v. United States, 17 F.3d 1286 (10th Cir. 1994), a plaintiff argued that the filing of plaintiffs' second complaint should relate back to the filing of their first complaint which had been dismissed for lack of proper service of process. The Tenth Circuit summarily rejected this assertion, stating that "a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.

However, in each case cited, the court assumed without deciding that equitable tolling applies to the limitation periods of the FTCA in order to demonstrate that application of the doctrine in those cases would have made no difference to their outcomes. Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994); Pipkin v. United States Postal Service, 951 F.2d 272, 274 (10th Cir. 1991); Farlaino v. United States, 1997 WL 139768, *3 (10th Cir. 1997) (Unpublished). In Benge, the court stated that "[a]ssuming arguendo that plaintiffs' situation is one to which equitable tolling should be applied, the doctrine would not save plaintiffs' claims."

In determining whether or not the full limitation period has run, time is reckoned from the accrual of the cause of action to the commencement of the action, with a deduction of the time, if any, during which the statute was tolled. A federal case, Benge v. United States, 17 F.3d 1286 (10th Cir. 1994), presented an argument very similar to the one in the present case. Under federal law, the limitations period for filing under the federal tort claims act is suspended during consideration of the claim by a federal agency. In Benge the plaintiff argued that he was entitled to a new statute of limitations, commencing when he received the notice of denial by the agency.

” Aplt.App. at 100 (emphasis added); see Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir.2000) (“[A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” (alteration in original) (quoting Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994) ) (internal quotation marks omitted)); accord Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir.2001). In light of the Barneses' concession that Lawsuit # 2 “was refiled rather than one where their claim was asserted through amendment,” Aplt. Opening Br. at 29, we are hard-pressed to endorse the idea that the relation-back doctrine applies here.

See Carter v. Texas Dep't of Health, 119 F. App'x 577, 581 (5th Cir. 2004). See also O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006); Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) ("[A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim."). Moreover, during the intervening year—between the dismissal of the Arkansas lawsuit and the filing of the Alabama lawsuit that was ultimately transferred to the Southern District of Mississippi in this case—Thompson filed yet another lawsuit against Reeves and the other defendants-appellees based on the same facts in the United States District Court for the Northern District of Florida on March 15, 2012.