Summary
finding suit was barred by statute of limitation and not tolled. "[Plaintiff] refiled her claim more than one year after the voluntary dismissal was entered, but less than a year after the court recognized the voluntary dismissal. Contrary to [plaintiff]'s view, the district court's later order formalizing the voluntary dismissal does not alter the measuring date for the statute of limitations."
Summary of this case from Mecey v. City of FarmingtonOpinion
No. 00-3810.
Submitted: April 15, 2002.
Filed: April 23, 2002.
Appeal from the United States District Court for the Western District of Missouri, Ortrie Smith, J.
Michael W. Manners, Independence, MO, for appellant.
James D. Griffin, Overland Park, KS (Scott R. Ast and Angel D. Mitchell, on the brief), for appellees.
Before HANSEN, Chief Judge, McMILLIAN, and FAGG, Circuit Judges.
Doreen Kirkendoll appeals the district court's dismissal of the wrongful death claim she filed against the trustees of the Allis-Chalmers Product Liability Trust. Kirkendoll initially filed the wrongful death claim in March 1999. On June 3, 1999, Kirkendoll filed a voluntary dismissal without prejudice, and the dismissal took effect on that date. Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990).
The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.
The wrongful death claim was subject to a one-year statute of limitations for refiling. Mo.Rev.Stat. § 537.100 (2000). Kirkendoll refiled her claim more than one year after the voluntary dismissal was entered, but less than a year after the court recognized the voluntary dismissal. Contrary to Kirkendoll's view, the district court's later order formalizing the voluntary dismissal does not alter the measuring date for the statute of limitations. See Safeguard, 907 F.2d at 863. Having reviewed the parties' briefs and the record de novo, Trimble v. Asarco, Inc., 232 F.3d 946, 960 (8th Cir. 2000), we conclude the district court properly held Kirkendoll's refiled claim was time-barred.
Kirkendoll also argues the statute of limitations was tolled by the defendant's absence from Missouri. We decline to reach this claim because it was not raised in the district court. Terry B. v. Gilkey, 229 F.3d 680, 682 (8th Cir. 2000). Missouri caselaw suggests our outcome would not differ even if we did consider this claim on its merits, however. See, e.g., Dupree v. Zenith Goldline Pharm., Inc., 63 S.W.3d 220, 221-22 (Mo. 2002).
We thus affirm the judgment of the district court. See 8th Cir. R. 47(B).