F I L E D

United States Court of Appeals

Tenth Circuit

MAR 19 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANDREW W. MARR, JR.,

Plaintiff-Appellant,

and

BIOCON INC.,

Plaintiff,

v.

HAROLD H. HOLDEN; SCOTT

HOLDEN; ENVIRONMENTAL

THERMAL SYSTEMS INC.; SAFETIRE DISPOSAL CORP., Oklahoma;

SAFE-TIRE DISPOSAL CORP.,

Texas; ABBLE TIRE; RECYCLE

ENERGY POWER CORP.; LARRY

FENTON; HOLDEN ENERGY

CORP.; MELVIN R. ROBINSON;

EDDIE CASTILLO; JEAN

TOOTHMAN; EUGENE EMBRY;

CARTER COUNTY DISTRICT

COURT; LOVE COUNTY DISTRICT

COURT; GARY HENRY; DENNIS

GAY; TOM WALKER; CHARLES

ROBERTS; JAMES A. CLARK, as an

individual and as an attorney; A-1

MINI STORAGE; JERRY

LANDRUM; MARLENE LANDRUM;

PHIL STANBECK; JOHN DOE, Sued

as John Does 1-15,

Defendants-Appellees.

No. 03-6147

(D.C. No. 03-CV-500-HE)

(W.D. Okla.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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ORDER AND JUDGMENT *

Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Andrew W. Marr, Jr. appeals from an order of the district court

dismissing his complaint for failure to state a claim and as untimely. We affirm.

Mr. Marr designed and patented a thermal reactor prototype device for

disposing of medical or other waste. In 1995, a dispute arose between Mr. Marr

and defendants Harold and Scott Holden and Environmental Thermal Systems,

Inc. Mr. Marr moved the device to a storage unit in Warr Acres, Oklahoma. 

Thereafter, the device was removed without Mr. Marr’s knowledge or consent,

allegedly by the Holdens. Mr. Marr filed criminal complaints against the Holdens

and Environmental Thermal Systems Inc. alleging they were responsible for the
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theft of the device. State court litigation ensued over ownership of the device and

the legal rights of the parties. The state court actions were settled in June 1997. 

In 2003, Mr. Marr filed this suit in federal district court. He alleged

defendants had violated his rights under 42 U.S.C. § 1983 and RICO, had

infringed on his patent, and had committed felony theft. The district court

dismissed the action because the statute of limitations had run on all of

Mr. Marr’s claims.

On appeal, Mr. Marr contends that his claims have merit. He addresses the

statute of limitations issue only as to his patent infringement claim. He asserts

that the s tatute of limitations does not bar that action as the statute runs from the

last date of infringement, which is ongoing. 

We review the district court’s order dismissing an action on statute of

limitations grounds de novo, although we will not “disturb the district court’s

factual findings [supporting that decision] unless they are clearly erroneous.” 

Plaza Speedway Inc. v. United States , 311 F.3d 1262, 1266 (10th Cir. 2002).

Here, all the actions of which Mr. Marr complained occurred prior to June

1997. We agree with the district court that all applicable statute of limitations

expired prior to the date he brought suit in 2003. Mr. Marr attempts to avoid the

statute of limitations on his patent infringement claim by alleging an ongoing

violation. This is a new argument on appeal and we decline to address it. See
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Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc ., 100 F.3d 792,

798-99 (10th Cir.) (court will not consider a new theory on appeal, even one “that

falls under the same general category as an argument presented” to the district

court (quotation omitted)), opinion amended , 103 F.3d 80 (10th Cir. 1996). In

any event, Mr. Marr misunderstands the continuing violation concept. It does not

apply here. Cf. Ward v. Caulk , 650 F.2d 1144, 1147 (9th Cir. 1981)

(“[C]ontinuing violation is occasioned by continual unlawful acts, not by

continual ill effects from an original violation.”). 

Upon review of the parties’ briefs on appeal, the district court’s order and

the record, we AFFIRM the judgment of the district court for substantially the

reasons stated in its order of May 7, 2003. All pending motions are DENIED. 

Entered for the Court

Monroe G. McKay

Circuit Judge