UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JIYING WEI, Plaintiff - Appellant,

v. UNIVERSITY OF WYOMING COLLEGE OF HEALTH SCHOOL PHARMACY; JANELLE KRUEGER, University of Wyoming Clinical Professor; TONJA WOODS, Unive rsity of Wyoming Associate Dean of Students; LINDA MARTIN, University of Wyoming former Dean of School of Ph armacy, individually and in their official capacity, Defendants - Appellees. No. 18-8011 (D.C. No. 2:17- CV-00150-NDF) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MORITZ , and EID , Circuit Judges.

________________ _________________ Jiying Wei appeals the district court’s judgment dismissing her complaint with prejudice based on claim preclusi on and the statute of limitati ons, and its order

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 7, 2019
Elisabeth A. Shumaker Clerk of Court2 denying her post-judgment moti on. Exercising jurisdiction unde r 28 U.S.C. § 1291, we affirm.
BACKGROUND Wei was a doctoral candidate in the School of Pharmacy (School) at the University of Wyoming (University ). In early July 2015, after she had been dismissed from the pharmacy progr am, Wei filed a pro se complai nt and, soon thereafter, an amended pro se com plaint (together, the 2015 Com plaint). She alleged that in 2012, she experienced a bout of depression after being wrongly accused of plagiarism during a clinical rot ation in South Dakota by a pers on at the rotation who disliked her, and she attempted suicide in an effort to prove h er innocence. She also claimed that she failed to rece ive a passing grade in the rotat ion due to lack of professionalism, that she had lo st her intern license and was u nable to work, and that actions taken by the School cons tituted a “civil rights violati on under disability due to depression.” Aplt. App. at 12 . She alleged that she was di smissed from the School on July 29, 2013, and from the University on February 16 , 2014. Id. at 13. She asked the court to allow he r to graduate from the program, to sit for a board exam, and for damages for the wrongful plagiarism accusation, t he delay in graduation, and her suffering. The School filed a motion to dis miss under Federal Rule of Civi l Procedure 12(b)(6). The district court gr anted the motion and dismissed the 2015 Complaint with prejudice because the court was unable to draw a reasonabl e inference from the facts alleged that the School wa s liable for the alleged miscon duct. Wei did not3 appeal that judgment or the den ial of her post-judgment motion asking the court to change the dismissal t o one without prejudice. On September 9, 2017, W ei filed a pro se com plaint against the School, the University, 1 and three of its employees, a sserting a due process claim unde r 42 U.S.C. § 1983 and claims of di sability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. She alleged that during her South Dakota rotation in August 2012, s he experienced a suicidal cris is and was diagnosed with depression. The School placed her on a medical leave of a bsence and conditioned her return on comple tion of counseling in Cheyenne, Wyoming. In October 2012, after two months o f counseling, she returned to t he program and was provided with new rotation assi gnments in South Dakota and Casp er, Wyoming, for four months. She alleged that the School ignored her request f or an assignment closer to her counselor and, wh ile on rotation in South Dakota, she experienced depression with withdrawal, cryi ng, and communication issues. She claimed that because of her communication issu es, she did not receive a pass ing grade due to lack of professionalism. She appealed the grade to both the School and the University and asked for permission to repeat the rotation at a different site , but both appeals were denied. For relief in this acti on, Wei sought reinstatement to and graduation from the program, the ability to sit for the board exam, and damages.

1 Although the parties debate whe ther Wei named the School, the University, or both, and whether only the Un iversity is the proper institut ional defendant, our disposition does not require u s to resolve the issue.4 Because Wei sought to proceed in forma pauperis , the district court screened her complaint pursuant to 28 U. S.C. § 1915A. The court dismiss ed some claims but concluded that she had alleged su fficient facts regarding the d ecision to place her on medical leave in August 2012 to s tate a due process claim under § 1983. The court also determined she had adequa tely stated failure-to-accommodat e claims under the ADA and the Rehabilitation Act c oncerning the decision to place her on medical leave and the disregard of her r equest to be assigned to a rota tion closer to her counselor in October 2012. Defendants filed a Rule 12(b)(6) motion to dismiss based in rel evant part on res judicata, also known as clai m preclusion, and the statute o f limitations. By then Wei had obtained counsel, who fil ed a response that was two pag es long and contained two arguments that read, in full: (1) “Res Judicata is more properl y raised [as] a defense in an Answer pursuant to [Fed. R. Civ. P.] 8 than in a Rule 12(b)(6) Motion to Dismis s for failure to state a cause of action.” Aplt. App. at 108. (2) “The court has found that the complaint states a cause of a ction and has ordered the defendant to answer t he complaint. At this time th e defendant may raise the issue of Res Judicata and provide evidence of such.” Id. at 108–09. Defendants responded that under Miller v. Shell Oil Co. , 345 F.2d 891, 893 (10th Cir. 1965), they could rais e claim preclusion and statute of limitations in a Rule 12(b)(6) motion. Aplt. App. at 111.5 The district court granted the motion to dismiss. The court co ncluded that the elements of claim preclusion were met and therefore dismissed w ith prejudice the claims against the School and th e individual defendants in thei r official capacities. It also concluded that Wei’s due p rocess claim accrued in August 2 012, when the School placed her on a medical l eave of absence, more than five years before she filed her complaint in this ac tion in September 2017 and thus b eyond the four-year limitations period. The court fu rther determined that her ADA/ Rehabilitation Act claims accrued no later than A ugust 25, 2013, when she was term inated from the pharmacy program after receiving the failing rotation grade. T he court derived that date by taking judicial notice of a copy of a termination lette r filed in Wei’s previous action bearing that date. Those claims, the court concluded, w ere therefore also outside the four-year statute of limitations as to all defendan ts, including the individual defendants in the ir individual capacities. Wei filed a motion under Federal Rules of Civil Procedure 59 an d 60, arguing that because the affirmative defe nses were not set out in an an swer, she was deprived of an opportunity to argue that the previous dis missal with pre judice “was mistakenly entered because the dismissal was not based upon the merits, bu t upon the pro

se complaint of the plaintiff with out being granted leave to amen d.” Id. at 128. She also argued that the district court was wrong to apply the stat ute of limitations because she alleged in the prio r action that her cause of actio n accrued on February 16, 2014, when the Univ ersity denied her appeal of the grade that led to her6 termination from the program, and thus her complaint in this ac tion was filed within the four-year limitations period. The district court deni ed the motion. It c oncluded that defend ants properly raised the two affirmative defens es in a Rule 12(b)(6) motion. The district court also noted that it could take judicial notice of its own files (i.e. , Wei’s prior case) when considering a Rule 12(b)(6) mo tion. The court further conclude d that any new arguments in the Rule 59/60 moti on did not justify relief becau se such a motion is not the proper vehicle to advan ce new arguments that were avail able at the time of the original motion. Wei filed a notice of appeal fro m the judgment and an amended n otice of appeal from the denial o f the Rule 59/60 motion.
DISCUSSION We review a district court’s di sposition of a Rule 12(b)(6) mot ion de novo. Warnick v. Cooley , 895 F.3d 746, 750 (10th Cir. 2018). And our review of a dist rict court’s denial of motions under Rule 59 and 60 is for abuse of discretion. Walters v. Wal-Mart Stores, Inc. , 703 F.3d 1167, 1172 (10th Cir. 2013). On appeal, Wei contends that (1) claim preclusion does not appl y because she did not have a full and fair oppor tunity to litigate the prior matter, and (2) there is insufficient evidence regarding accrual of the claims to dismis s based on the statute of limitations. Neither of thes e arguments is preserved for ap pellate review because Wei did not raise them in her re sponse to defendants’ Rule 12(b )(6) motion. Accordingly, these argumen ts are waived on appeal. See Impact Energy Res., LLC v.7 Salazar , 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (explaining that fai lure to raise issue at appropriate time in the district court waives appellat e review). To the extent she raised these arguments in he r Rule 59/60 motion, we conclud e that the district court did not abuse its discreti on in declining to consider the m because motions under Rule 59 and Rule 60 are in appropriate for advancing new a rguments or supporting facts that could have been raised in prior briefing. See Servants of the
Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000). Wei has preserved for appellate review portions of one threshol d procedural argument—that it was improper fo r defendants to raise the affir mative defenses of claim preclusion and the statute of limitations in a Rule 12(b) (6) motion without having first raised them in a n answer. We disagree. In Miller v. Shell Oil Co. , we held that “a defendant may raise an affirmative defense by a mo tion to dismiss for the failure to state a claim.” 345 F.2d 891, 893 (10th Cir. 1965). More specifically, we have explained that it is appropriate to re solve a statute of l imitations defense on a Rule 12(b)(6) motion “when the da tes given in the complaint mak e clear that the right sued upon has been extinguished.” Sierra Club v. Okla. Gas & Elec. Co. , 816 F.3d 666, 671 (10th Cir. 2016) (internal quotation marks om itted). Although here the district court gleaned t he date it found relevant for the limitations calculation by taking judicial notice of a fi ling in Wei’s first case, it w as entitled to do so. See Warnick , 895 F.3d at 754 n.6 (observing that in re viewing a Rule 12(b) (6) motion, a8 court can consider “matters of wh ich a court may take judicial notice”). 2 And in Tri-State Truck Ins., Ltd. v. First National Bank of Wamego , 564 F. App’x 345 (10th Cir. 2014), we reasoned that “‘when all relevant facts ar e shown by the court’s own records, of which the court takes notice,’” the affirmative defense of claim preclusion “‘may be upheld on a Rule 12(b)(6) motion without re quiring an answer.’”
Id. at 347 (quoting Day v. Moscow , 955 F.2d 807, 811 (2d Cir. 1992)). 3 The two Supreme Court cases We i relies on are not to the contra ry because they do not state that affirmative defenses must be raised in an answer or cannot be raised in a Rule 12(b)(6) motion, but only that claim preclusio n is an affirmative defense “that must be pleaded,” Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found. , 402 U.S. 313, 350 (1971), and “[o] rdinarily, it is incumbent on the defendant to plead and prove such a defense,” Taylor v. Sturgell , 553 U.S. 880, 907 (2008). And the four cases from other circuits s he cites are either not on poin t or are contrary to Tenth Circuit precedent. 4 In sum, we see no error in the district court’s conclusion th at

2 In her reply brief, Wei argues for the first time that this wa s improper, but we do not ordinarily consider argumen ts not properly presented to the district court, Impact Energy Res., LLC , 693 F.3d at 1246 n.3, or thos e raised for the first time on appeal in a reply brief, Sierra Club , 816 F.3d at 676 n.9. We decline to do so here.

3 We cite to this unpublished case for its persuasive value cons istent with 10th Cir. R. 32.1.

4 Those cases are: O’Gorman v. City of Chicago , 777 F.3d 885, 889 (7th Cir. 2015) (“[A]lthough a plaintiff need not anticipate or overcome affirmative defenses such as those based on the stat ute of limitations, if a plainti ff alleges facts sufficient to establish a statute of limita tions defense, the district cou rt may dismiss the complaint on that ground”); Simmons v. Navajo Cty., Ariz. , 609 F.3d 1011, 1023 (continued)9 defendants could properly raise t heir affirmative defenses in t he first instance in a Rule 12(b)(6) motion.
CONCLUSION The district court’s judgment a nd its order denying Wei’s post -judgment motion are affirmed.

Entered for the Court

Allison H. Eid Circuit Judge

(9th Cir. 2010) (“Although Rule 8 requires affirmative defenses to be included in responsive pleadings, absent pre judice to the plaintiff, the di strict court has discretion to allow a defendant to plead an affirmative defense in a subse quent motion.”); United States v. N. Trust Co. , 372 F.3d 886, 888 (7th Cir. 2004) (“Dismissal under Rule 12(b)(6) was irregular, forthe statute of limitations is an affirmative defense. A complaint states a claim on whic h relief may be granted whether or not some defense is potentially available. ” (citation omitted)); and Xechem, Inc. v. Bristol-Myers Squibb Co. , 372 F.3d 899, 901 (7th Cir. 2004) (“Orders under Rule 12(b)(6 ) are not appropriate responses t o the invocation of defenses, for plaint iffs need not anticipate and attempt to plead around all potential defenses. Complaints need not contain any information about defenses and ma y not be dismissed for that om ission.”).