*This order and judgment is not binding precedent, except under the doctrines of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 the court’s General Order filed November 29, 1993. 151

F.R.D. 470.

UNITED STATES COURT OF APPEALS

Filed 12/18/95

TENTH CIRCUIT

BRIAN S. FAILE, )

)

Plaintiff-Appellant, )

) No. 95-4100

v. ) (D.C. No. 93-CV-1087)

) (D. Utah)

THE UPJOHN COMPANY, a corporation, )

)

Defendant-Appellee. )

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and HENRY, 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); 10th Cir. R. 34.1.9. The cause is therefore ordered

submitted without oral argument.

Mr. Brian S. Faile brought this action pro se against The Upjohn Company

alleging that his use of the prescription drug Xanax, manufactured by Upjohn, resulted in
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depression and violent behavior. The district court granted Upjohn’s motion to dismiss,

ruling that the action was barred by the applicable statute of limitations. Mr. Faile

appeals and we affirm.

In June 1990, Mr. Faile filed a complaint against Upjohn in the U.S. District Court

for the District of Nevada raising the claims he raises here. In May 1993, Mr. Faile and

Upjohn stipulated to a dismissal of the action without prejudice pursuant to Fed. R. Civ.

Proc. 41(a)(1)(ii). In December 1993, Mr. Faile filed the instant complaint in the U.S.

District Court for the District of Utah. He contends that Utah’s savings statute, Utah Code

Ann. § 78-12-40, governs and authorizes his instant complaint because it was filed within

one year from the dismissal of his complaint in Nevada. See Prince v. Leesona Corp.,

720 F.2d 1166, 1169 (10th Cir. 1983); Allen v. Greyhound Lines, 656 F.2d 418, 420-23

(9th Cir. 1981). Upjohn asserts, and the district court agreed, that Utah’s borrowing

statute, Utah Code Ann. § 78-12-45, governs and that Mr. Faile’s complaint is timebarred.

“[T]he established rule [is] that when two provisions address the same subject

matter and one provision is general while the other is specific, the specific provision

controls.” Dairyland Ins. Co. v. State Farm Mut. Auto. Ins. Co., 882 P.2d 1143, 1146

(Utah 1994). Utah’s borrowing statute and savings statute both address whether Mr.

Faile’s complaint is time-barred. In this case, the borrowing statute must govern because

it is more specific. The borrowing statute applies “[w]hen a cause of action has arisen in
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another state or territory . . . ,” Utah Code Ann. § 78-12-45, while the savings statute

applies to “any action,” Utah Code Ann. § 78-12-40. Both Prince and Allen are

inapposite because neither involved conflicting statutes.

Under Utah’s borrowing statute, we look to Nevada’s statute of limitations to

determine whether Mr. Faile’s complaint is time-barred. Utah Code Ann. § 78-12-45. 

Nevada does not have a savings statute; therefore, the Nevada provision which applies is

the two-year statute of limitations in actions to recover damages for personal injuries. 

Nev. Rev. Stat. Ann. § 11.190.4(e). Because Mr. Faile filed the instant complaint over

two years after his cause of action arose, his complaint is time-barred.

Mr. Faile also contends that Upjohn waived any defense of untimeliness by

stipulating to dismissal under Fed. R. Civ. Proc. 41(a)(1)(ii). We disagree and AFFIRM

substantially for the reasons given by the district court. The mandate shall issue

forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge