PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KESHIA PORTER, as the wrongful death 

representative for the claimants entitled to 

recover for the wrongful death of Delandis 

Richardson, deceased, 

 Plaintiff - Appellant, 

v. 

FORD MOTOR COMPANY, 

 Defendant - Appellee. 

No. 18-8028 

_________________________________ 

Appeal from the United States District Court 

for the District of Wyoming 

(D.C. No. 1:17-CV-00133-ABJ)

_________________________________ 

Vincent L. Marable III, Paul Webb, P.C., Wharton, Texas (Vance Countryman, Vance T. 

Countryman, P.C., Lander, Wyoming, J. Hunter Craft and Laura A. Cockrell, Craft Law 

Firm, P.C., Houston, Texas, with him on the briefs), for Plaintiff-Appellant. 

Katherine B. Wellington, Hogan Lovells US LLP, Washington, D.C. (Jessica L. 

Ellsworth, Hogan Lovells US LLP, Washington, D.C., and Richard A. Mincer, Hirst 

Applegate, LLP, Cheyenne, Wyoming, with her on the brief), for Defendant-Appellee. 

_________________________________ 

Before LUCERO, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

LUCERO, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 12, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

Keshia Porter appeals the district court’s dismissal of her complaint as time 

barred. The district court concluded that this action is untimely under Wyo. Stat. 

§ 1-38-102 because Porter did not file a petition for appointment as a wrongful death 

representative (“WDR”) within two years of her husband’s death. However, such a 

petition was filed by another putative representative within two years and Porter was 

appointed WDR in that state court action. She then filed the present suit within thirty 

days of her appointment. On these facts, we conclude that Porter’s complaint is 

timely under Wyo. Stat. § 1-38-103(b)(ii). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we reverse and remand. 

I

 Porter’s husband, Delandis Richardson, was killed in an auto accident in 

Campbell County, Wyoming, on November 25, 2014.1

 Within two years, on 

November 21, 2016, Vance Countryman filed a “Petition/Action for the Appointment 

of Wrongful Death Representative” in the District Court of Campbell County, 

Wyoming.2

 Countryman requested appointment as Richardson’s WDR under Wyo. 

Stat. §§ 1-38-101 to 105. 

 1

 Because this case was decided on a motion to dismiss, we take the following 

facts from the complaint. See Acosta v. Jani-King of Okla., Inc., 905 F.3d 1156, 

1158 (10th Cir. 2018). 

2

 Although the records from the state court action were not included in the 

complaint, they are nevertheless properly considered. A court may look to 

documents subject to judicial notice in deciding a motion to dismiss. Gee v. 

Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). And records from a related case may 

be judicially noticed. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 

F.2d 1169, 1172 (10th Cir. 1979). 
3 

 The state court judge expressed concern that appointing Countryman, who 

would be acting as an attorney in the wrongful death suit, could pose ethical 

problems. On April 27, 2017, Porter filed an “Amended Petition/Action for the 

Appointment of Wrongful Death Representative” asking the court to appoint her as 

Richardson’s WDR. It stated that “[t]his petition is ‘made in a separate action 

brought solely for appointing the wrongful death representative’ pursuant to Wyo. 

Stat. Ann. § 1-38-103(b).” The document was filed in the existing state court action. 

On July 10, 2017, the court appointed Porter the WDR for Richardson.

Porter then filed this action against Ford Motor Company on August 7, 2017, 

as Richardson’s WDR. Ford moved to dismiss, arguing that Porter’s claims were 

barred by Wyoming’s two-year limitations period for wrongful death actions. See 

Wyo. Stat. § 1-38-102(d). The district court agreed and dismissed the complaint with 

prejudice. Porter timely appealed. 

II

We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). Acosta, 905 

F.3d at 1158. In so doing, we accept as true all well-pled factual allegations and 

construe them in the light most favorable to the plaintiff. Id. “A federal court sitting 

in diversity applies state law for statute of limitations purposes.” Burnham v. 

Humphrey Hosp. REIT Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005). 

Under Wyoming law, “[t]he right to sue for wrongful death is created purely 

by statute.” Corkhill v. Knowles, 955 P.2d 438, 442 (Wyo. 1998). Any wrongful 

death claim must be brought in the name of the decedent’s WDR. Wyo. Stat. 
4 

§ 1-38-102(a). “An action for wrongful death shall be commenced within two (2) 

years after the death of the decedent.” § 1-38-102(d). However, “[i]f an action to 

appoint the [WDR] is properly filed, the limitation period under [§] 1-38-102(d) and 

any other applicable limitation periods shall be tolled from the time the action is filed 

until thirty (30) days after an order appointing the [WDR] is entered.” 

§ 1-38-103(b)(ii). The Wyoming Supreme Court has explained that this limitations 

period is a condition precedent to filing suit. Corkhill, 955 P.2d at 442. 

The district court stated that the dispositive question is whether Porter’s 

Amended Petition relates back to the Petition filed by Countryman. We conclude 

that a relation back inquiry is unnecessary. The Wyoming statute sets forth a 

straightforward conditional statement: “If an action to appoint the [WDR] is properly 

filed,” then “the limitation period . . . shall be tolled from the time the action is filed 

until thirty (30) days after an order appointing the [WDR] is entered.” 

§ 1-38-103(b)(ii). The antecedent was satisfied when the Petition to appoint a WDR 

was filed within two years of Richardson’s death, on November 21, 2016. 

Accordingly, the limitations period was tolled. There is no dispute that Porter filed 

this case within thirty days of her appointment as WDR. Her claim is thus timely. 

In arguing to the contrary, Ford notes that Porter filed her Amended Petition 

after two years had passed and contends the date of the Amended Petition is 

determinative. But the statute does not require the individual who is ultimately 

appointed WDR to initiate the action; it applies whenever “an action to appoint the 

[WDR] is properly filed.” Id. Ford similarly treats the Amended Petition as if it 
5 

were filed as an independent action, and thus outside the two-year period. But the 

state court did not open a new case file upon the filing of the Amended Petition, 

instead filing it in the existing action. That decision was consistent with the statute, 

which indicates that “[a]fter an action to appoint [WDR] is filed . . . [n]o subsequent 

action for appointment may be maintained.” § 1-38-103(b)(i). 

Ford points out that Porter’s Amended Petition states it was “made in a 

separate action brought solely for appointing the wrongful death representative,” 

quoting § 1-38-103(b). And the company criticizes Porter for failing to caption her 

Amended Petition as a motion to intervene. See § 1-38-103(b) (stating that “[i]n any 

action in which appointment of the [WDR] is sought,” a person claiming to qualify 

“may intervene as a matter of right”). Ford thus contends that Porter failed to 

“strictly comply[]” with a condition precedent. Harmon v. Star Valley Med. Ctr., 

331 P.3d 1174, 1188 (Wyo. 2014). But these arguments are, in essence, improper 

collateral attacks on the state court decision. See Halliburton Energy Servs., Inc. v. 

Gunter, 167 P.3d 645, 650 (Wyo. 2007) (holding a defendant lacks standing to 

collaterally attack the appointment of a WDR, absent facial invalidity of the ruling). 

The state court appointed Porter as WDR in the same action that was filed within the 

limitations period, and Porter filed suit within thirty days of that appointment. She 

thus complied strictly with the statute’s requirements. 

Ford also argues Countryman’s Petition was not “properly filed” within the 

meaning of § 1-38-103(b)(ii) because the state court expressed concerns about the 

ethical problems his appointment would pose. But as we have held in a different 
6 

context, the phrase “properly filed” refers to “filing requirements” such as “the place 

and time of filing” or “the payment or waiver of any required filing fees.” 

Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (footnote omitted). 

The phrase does not refer to issues that “require analysis in some manner of the 

substance of the claims.” Id. at 1211. 

III

 For the foregoing reasons, we REVERSE and REMAND for further 

proceedings consistent with this opinion.