Filed 4/25/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 114

Robin E. Ayling, individually and as parent of 

Blake Christopher Ayling, deceased, Plaintiff and Appellant

v.

Mary Ann Sens, M.D., Ph.D., individually, as 

Grand Forks County Coroner (public official); 

as North Dakota State Forensic Examiner 

Pathologist Designee (public official); and as 

Co-Director of the University of North Dakota 

School of Medicine and Health Sciences 

Forensic Pathology Practice Facility, Defendant and Appellee

and

University of North Dakota, a public University 

of the North Dakota University System, Dr. 

Mark Koponen, individually and as Co-Director 

of the University of North Dakota School of 

Medicine and Health Sciences Forensic 

Pathology Practice Facility, and Dr. Joshua 

Wynn individually and in his official capacity as 

Dean of the University of North Dakota School 

of Medicine and Health Sciences including the 

Forensic Pathology Practice Facility, Defendants and Appellees

and

Grand Forks County, as a political subdivision 

and its States Attorney David Jones in his official 

capacity and individually, and its Commissioners 

in their official capacity as a Board and 

individually, specifically Gary Malm, David Engen, 

Tom Falck, Diane Knauf, and Cynthia Pic, Defendants and Appellees
and

Dr. William Massella, individually and in his 

official capacity as North Dakota State Forensic 

Examiner, Defendant and Appellee

No. 20180231

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Robin E. Ayling, self-represented, Champlin, Minnesota, plaintiff and

appellant.

Matt A. Paulson (argued) and Randall S. Hanson (on brief), Special Assistant

Attorneys General, Grand Forks, North Dakota, for defendants and appellees Mary

Ann Sens, M.D., Ph.D., Dr. Mark Koponen, Dr. Joshua Wynn, and Dr. William

Massella.

Joseph E. Quinn (argued) and Daniel L. Gaustad (on brief), Grand Forks,

North Dakota, for defendants and appellees Grand Forks County, State’s Attorney

David Jones, and County Commissioners Gary Malm, David Engen, Tom Falck,

Diane Knauf, and Cynthia Pic.

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Ayling v. Sens

No. 20180231

Tufte, Justice.

[¶1] Robin Ayling appeals from a judgment dismissing her claims against Mary

Ann Sens, M.D., UND School of Medicine employees, and the Grand Forks County

State’s Attorney and Board of Commissioners relating to her son’s death. Ayling also

appeals from an order denying her motion to reconsider. The district court concluded

Ayling’s claims against the Defendants were untimely. We affirm.

I

[¶2] Ayling’s son, Blake Ayling, was a student at UND. He was last seen alive at

an on-campus party at approximately 1:30 a.m. on March 24, 2012. He was found

dead in the rail yard south of UND’s campus at approximately 6:30 a.m. to 7:00 a.m.

on March 24, 2012. Dr. Sens performed the autopsy on the same day. She determined

Blake Ayling was intoxicated, he had a 0.278 blood-alcohol concentration at the time

of death, he died from blood loss, and his death was accidental.

[¶3] After learning of the autopsy results, Ayling questioned the blood-alcohol

concentration because Blake Ayling reportedly did not show signs of intoxication at

the party or before the party. Ayling met with Dr. Sens in April 2013, and Sens

explained the autopsy report and defended her conclusions.

[¶4] On December 27, 2013, Ayling spoke with a forensic toxicologist who

questioned Dr. Sens’ methods in performing the autopsy. The toxicologist believed

Blake Ayling’s urine and vitreous humor should have been tested for alcohol to

corroborate the blood test.

[¶5] Ayling sued Dr. Sens, UND School of Medicine employees, and Grand Forks

County employees in February 2017, alleging Sens failed to competently perform a

medical autopsy as a part of the investigation of Blake Ayling’s death. Ayling alleged

the other Defendants failed to properly supervise Dr. Sens. After serving and filing

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her complaint, Ayling requested numerous documents from the Defendants through

discovery. The Defendants moved to quash or stay the discovery, arguing that

dispositive motions would be filed. The district court stayed discovery, recognizing

“that judicial economy will be best served by staying all discovery pending the

outcome of the Defendants’ dispositive Motions.”

[¶6] The Defendants brought motions to dismiss and for summary judgment,

requesting dismissal of Ayling’s complaint under several legal theories, including

failure to bring her lawsuit within the three-year statute of limitations. In January

2018 the district court issued an order granting the Defendants’ motions for summary

judgment because Ayling sued more than three years after she discovered she had a

possible claim against the Defendants. The court concluded Ayling discovered she

had a possible claim no later than December 2013 when she spoke with the

toxicologist who indicated Dr. Sens’ autopsy of Blake Ayling may have been below

the standard of care. The court entered a judgment dismissing Ayling’s complaint.

[¶7] Following entry of the judgment, Ayling filed a “motion to reconsider and/or

vacate pursuant to N.D.R.Civ.P. 59(j) and Rule 60(b)” relating to the district court’s

January 2018 order granting the Defendants’ motions for summary judgment. The

district court denied the motion.

II

[¶8] Ayling argues the district court erred in granting the Defendants’ motions for

summary judgment dismissing her complaint.

[¶9] “An action barred by a statute of limitations generally is dismissed under the

summary judgment standards of N.D.R.Civ.P. 56.” Estate of Nelson, 2015 ND 122,

¶ 6, 863 N.W.2d 521 (citing Riemers v. Omdahl, 2004 ND 188, 687 N.W.2d 445;

Dimond v. State Bd. of Higher Ed., 2001 ND 208, 637 N.W.2d 692). Summary

judgment is a procedural device for the prompt resolution of a controversy on the

merits without a trial if there are no genuine issues of material fact or inferences that

can reasonably be drawn from the facts, or if the only issues to be resolved are

questions of law. Sorenson v. Bakken Invs., LLC, 2017 ND 127, ¶ 6, 895 N.W.2d

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302. In deciding whether the district court properly granted summary judgment, we

view the evidence in the light most favorable to the party opposing the motion, and

that party will be given the benefit of all favorable inferences that can reasonably be

drawn from the record. Id. Summary judgment is a question of law which we review

de novo on the entire record. Id.

[¶10] The district court concluded three statutes of limitation governed Ayling’s

claims against Sens and the other Defendants. See N.D.C.C. § 28-01-17(1) (threeyear statute of limitations for actions against coroners acting in their official capacity);

N.D.C.C. § 28-01-22.1 (three-year statute of limitations for actions against state

employees acting within the scope of their employment); N.D.C.C. § 32-12.1-10

(three-year statute of limitations for actions against political subdivisions and their

employees). The court concluded Ayling failed to bring her claims against Sens and

the other Defendants within three years of discovering she may have a claim.

[¶11] Ayling argues the district court erred in concluding her claims arose no later

than December 2013 when she consulted with a forensic toxicologist.

Determining when a cause of action accrues is normally a question of

fact, but it becomes a question of law when the material facts are

undisputed. The statute of limitations generally begins to run from the

commission of the wrongful act giving rise to the cause of action,

unless an exception applies. The discovery rule is one exception, and

under the discovery rule the accrual of a claim is postponed until the

plaintiff knew, or with the exercise of reasonable diligence should have

known, of the wrongful act and its resulting injury. We have said, after

acquiring knowledge of facts sufficient to put a person of ordinary

intelligence on inquiry, a party has a responsibility to promptly find out

what legal rights result from those facts, and failure to do so will be

construed against the party. The discovery rule does not require full

knowledge of the extent of an injury; rather, it only requires the party

be aware of an injury.

Frith v. The Park Dist. of the City of Fargo, 2016 ND 213, ¶ 11, 886 N.W.2d 836

(citations and quotations omitted).

[¶12] Ayling sued the Defendants in February 2017. The district court discussed

Ayling’s knowledge of facts related to her son’s autopsy:

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In this case, the underlying event was the medical autopsy of Blake,

occurring March 24, 2012. Plaintiff was made aware of the autopsy

result on June 28, 2012. By December of 2013, she had hired an

independent toxicologist in order to review Dr. [Sens’] autopsy. By

this time, she had discovered, according to the allegations of her

Complaint, various actions done or not done by Dr. Sens that raised

questions: “[Ayling] had many questions about the coroner file

documents and sent a letter to Dr. Sens dated March 24, 2013.” (See

Complaint, ¶ 32). Ayling “drafted a confirming letter to Dr. Sens dated

April 24, 2013 based on the notes she took . . . also had a few more

questions as 2 hrs. was not enough . . . .” (See Complaint, ¶ 34). Then

Ayling investigated the Pi Kappa Alpha fraternity as to the fraternity’s

culpability. (See Complaint, ¶ 36). Ayling attempted to discern raw

toxicology data, and when she could not, she hired an independent

toxicologist to do so, speaking with the expert by telephone on

December 27, 2013. (See Complaint, ¶ 39).

These were facts that would put a reasonable person on notice

of a potential claim. There is no dispute of material fact precluding

summary judgment here, as there is only one reasonable interpretation:

any plaintiff in Ayling’s position had sufficient facts to be put on notice

of a claim by December [27,] 2013 because of the multitude and variety

of facts Ayling relies on in her Complaint she discovered as part of her

investigation.

[¶13] The record establishes Ayling began questioning the autopsy report after she

became aware of it in June 2012. She sent letters and emails to Dr. Sens about her

performance of the autopsy. She met with Dr. Sens in April 2013 to discuss the

autopsy. After speaking with the independent toxicologist on December 27, 2013,

Ayling was aware of facts sufficient to put her on notice of a potential claim, and she

failed to sue the Defendants within three years of that date. The district court did not

err in concluding that by December 27, 2013, Ayling knew or should have known she

had a possible claim against the Defendants. The court did not err in granting the

Defendants’ motions for summary judgment dismissing Ayling’s complaint.

III

[¶14] Ayling argues the district court erred in its decisions relating to her discovery

requests. A district court has broad discretion over the scope of discovery, and its

discovery decisions will not be reversed on appeal unless the court abused its

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discretion. Johnson v. Mark, 2013 ND 128, ¶ 8, 834 N.W.2d 291. A court abuses its

discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it

misinterprets or misapplies the law, or its decision is not the product of a rational

mental process leading to a reasoned determination. Key Energy Servs., LLC v. Ewing

Constr. Co., Inc., 2018 ND 121, ¶ 8, 911 N.W.2d 319.

[¶15] After filing her lawsuit, Ayling requested a large amount of discovery from the

Defendants. In response, the Defendants filed motions to quash, for a protective

order, and for a stay of discovery. The Defendants argued the district court should

stay discovery because they would be filing dispositive motions, including motions

to dismiss and for summary judgment. The court stayed discovery, recognizing “that

judicial economy will be best served by staying all discovery pending the outcome of

the Defendants’ dispositive Motions.”

[¶16] After the Defendants filed their dispositive motions, Ayling requested the

district court to delay ruling on the motions to allow her to conduct additional

discovery under N.D.R.Civ.P. 56(f). In granting Grand Forks County’s summary

judgment motions on statute of limitations grounds, the court stated, “[Ayling] fails

to specifically identify any discovery that would defeat the motion based on the

statute of limitations.”

[¶17] Under N.D.R.Civ.P. 56(f), a district court may delay its ruling on a motion for

summary judgment to allow additional discovery “[i]f a party opposing the motion

shows by affidavit that, for specified reasons, it cannot present facts essential to

justify its opposition.” However, “when further discovery would not involve an issue

which is the subject matter of the summary judgment motion, a trial court does not

abuse its discretion in deciding the motion without granting the Rule 56(f) request.” 

Perry Ctr., Inc. v. Heitkamp, 1998 ND 78, ¶ 10, 576 N.W.2d 505.

[¶18] After reviewing the record, we agree with the district court that Ayling’s

voluminous discovery requests did not relate to the statute of limitations issue and

would not have created an issue of material fact supporting denial of the summary

judgment motion. The court’s discovery decisions were not an abuse of discretion.

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IV

[¶19] Ayling argues the district court erred in denying her motion to reconsider

and/or vacate.

[¶20] “North Dakota law does not formally recognize motions to reconsider.” 

Kautzman v. Doll, 2018 ND 23, ¶ 9, 905 N.W.2d 744. A motion to reconsider is

generally treated as either a motion to alter or amend a judgment under N.D.R.Civ.P.

59(j), or as a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b). 

Kautzman, at ¶ 9. We review a court’s denial of a motion for reconsideration under

the abuse of discretion standard. Kautzman, at ¶ 13.

[¶21] Ayling brought her “motion to reconsider and/or vacate pursuant to

N.D.R.Civ.P. 59(j) and Rule 60(b)” relating to the district court’s January 2018 order

granting the Defendants’ motions for summary judgment. Her motion or brief in

support did not identify a specific ground for relief under N.D.R.Civ.P. 60(b). Rule

60(b)(6), N.D.R.Civ.P., allows a district court to grant relief from an order or

judgment for “any other reason that justifies relief.” Rule 60(b)(6), N.D.R.Civ.P.,

“should be invoked only when extraordinary circumstances are present.” Kautzman,

2018 ND 23, ¶ 14, 905 N.W.2d 744 (quoting Hildebrand v. Stolz, 2016 ND 225, ¶ 16,

888 N.W.2d 197).

[¶22] The district court considered Ayling’s motion and found she was rearguing

issues raised earlier. The court stated, “The threshold for amending or vacating a

standing order is high, and it does not appear to the Court that there is anything

‘extraordinary’ or more to justify reconsideration of the order. The motion will be

denied.” We conclude the court did not abuse its discretion in denying Ayling’s

motion to reconsider.

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V

[¶23] We have considered Ayling’s remaining arguments and conclude they are

either unnecessary to our decision or without merit. The judgment and order denying

Ayling’s motion to reconsider or vacate is affirmed.

[¶24] Jerod E. Tufte

Daniel J. Crothers

Robin A. Schmidt, D.J.

Gerald W. VandeWalle, C.J.

Cherie L. Clark, D.J.

[¶25] The Honorable Robin A. Schmidt, D.J., and the Honorable Cherie L. Clark,

D.J., sitting in place of McEvers, J., and Jensen, J., disqualified.

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