UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SARA CAHN, Plaintiff - Appellant,

v. TERRY M. WORD; TERRY M. WORD, P.C., Defendants - Appellees. No. 19-2043 (D.C. No. 1:18-CV-00396-JAP-SCY) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , KELLY , and MORITZ , Circuit Judges.

________________ _________________ Plaintiff-Appellant Sara Cahn brought this action against Defendants-Appellees Terry M. Word a nd Terry M. Word, P.C. (collectively “Defendants”), alleging they committed ma lpractice in representing her in another action. She now appeals the district c ourt’s grant of summary judgment on statuteof-limitations grounds and ha s also moved that we certif y a related question of state

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2020 Christopher M. Wolpert Clerk of Court2 law. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s decision and deny her motion to certify. BACKGROUND This diversity action arises from a medical malpractice action brought by Ms. Cahn in which she was represented by De fendants. Ms. Cahn filed the action in New Mexico state court agai nst Lovelace Health System s and several physicians on April 9, 2009. In her complaint, she sought to hold the defendant s liable for failing to inform her that a pelvic ultrasound performed at a Lovelace facility on May 19, 2006 had revealed a potentially cancerous mass on her ovary. She also alleged that a doctor who reviewed the ultrasound inform ed her in an August 8, 2006 follow-up consultation that she had ova rian cysts that were “nothing to worry about” and diagnosed her with endometrios is. Jt. App. at 7. Becau se Ms. Cahn could not recall the name of this doctor, Defendants iden tified him as “John Doe” physician in the April 2009 complaint. Two years af ter the 2006 ultrasound and follow-up appointment, Ms. Cahn was diagnosed w ith ovarian cancer when she sought treatment for the same pelv ic pain that had prompt ed the 2006 ultrasound. On July 1, 2010, through discover y received from Lovelace, Defendants identified Dr. John Berryman as the physicia n who had misdiagnosed Ms. Cahn at the August 8, 2006 consultati on. Defendants amended the medical malpractice complaint on July 9, 2010 to name Dr. Berryman as an individual defendant. Dr. Berryman moved for summary judg ment, asserting Ms. Cahn’s claims against him were barred by New Mexico’s three-year statute of repose for medical3 malpractice claims. See N.M. Stat. Ann. § 41- 5-13 (1978). The state district court denied his motion, ruling that though th e statute of repose on Ms. Cahn’s claims against Dr. Berryman had expired on August 8, 2009, before she amended her complaint, she could noneth eless proceed against Dr. Be rryman because application of the statutory bar would vi olate her right to due proces s under the United States and New Mexico constitutions. The state court certified its decision for interlocutory appeal, and in September 2012 Dr. Berryman filed an application fo r interlocutory appeal with the New Mexico Court of Appeals. In the application, which Ms. Cahn reviewed, Dr. Berryman alleged that she and Defe ndants could have identified him sooner through available discovery pr ocedures but failed to do so. The state court of appeals denied Dr. Berryman’s application. Subsequently, in June 2013, Dr. Berryman and Ms . Cahn stipulated to a conditional directed verdict and final judgment in whic h Dr. Berryman admitted his liability to Ms. Cahn in the amount of $700,00 0, but reserved his right to appeal the judgment on the ground that her claims ag ainst him were time -barred. Ms. Cahn testified that at about this time she believed Defendants ha d made a mistake in failing to identify Dr. Berryman ea rlier in the litigation. Dr. Berryman filed his app eal the following month. Ms. Cahn testified that by this time she understood thatanother attorney, Felicia Weingartner, had taken over her case. Though Defendants remained co unsel of record until late 2014, when4 Defendant Word retired, Ms. Cahn testified th at she did not think she had any contact with him after the stipulated j udgment was entered in June 2013. On April 30, 2015, the New Mexico C ourt of Appeals entered its decision in Dr. Berryman’s appeal. It reversed the st ate district court, concluding Ms. Cahn’s claims against the doctor were time-barred b ecause they were filed after expiration of the three-year statute of re pose and were not subject to a due process exception to the statutory bar. 1 The New Mexico Supreme Court affirmed. Ms. Cahn filed the present action on Apr il 27, 2018, asserting that Defendants committed professional negligence and bre ached their contractual duty to provide quality legal services by failing to identify Dr. Berryman within the statute of repose for medical malpractice clai ms and timely name him as a defendant. Defendants moved for summary judgment, arguing that Ms. Cahn’s claims against them were barred by the applicable statute of limitatio ns, which requires that legal malpractice claims be brought within f our years of accrual. The district court agreed that Ms. Cahn’s claims accrued more than four years before she brought this suit, and therefore granted Defendant s’ motion and dismissed he r claims with prejudice.

1 The New Mexico Court of Appeals held the ten-and-one-half-month period between Ms. Cahn’s discovery that she ha d a medical malpract ice claim against Dr. Berryman (when she was diagnosed with ovarian cancer in September 2008) and expiration of the three-year statut e of repose on August 8, 2009, was a constitutionally reasonable amount of time fo r her to learn Dr. Berryman’s name and timely add him to her medi cal malpractice suit. See Cahn v. Berryman , 355 P.3d 58, 64 (N.M. Ct. App. 2015), aff’d , 408 P.3d 1012 (N.M. 2017).5 Ms. Cahn timely appealed the district c ourt’s ruling. She ha s also asked us to certify a question of state law to the New Mexico Supreme Court that relates to one of the arguments the district court reje cted in its decision. We address her certification motion, which concerns the c ontinuous representation doctrine, in our discussion below. DISCUSSION We review de novo the grant of summary judgment, viewing the factual record and making reasonable infere nces from it in the light most favorable to the

non-movant. Talley v. Time, Inc. , 923 F.3d 878, 893 (10th Cir. 2019). Summary judgment is warranted when “the movant show s that there is no genuine dispute as to any material fact and the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material only if it might affect the outcome of the suit under the governing law. And a dispute over a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1265-66 (10th Cir. 2015) (internal quotation marks and citations omitted). Be cause this is a diversity action, we apply the substan tive law of the foru m state, New Mexico, to the legal questions before us. See Patterson v. PowderMonarch, LLC , 926 F.3d 633, 637 (10th Cir. 2019). Ms. Cahn raises three issues on appeal: (1) whether the district court erred in ruling as a matter of law th at her legal malpractice cl aim was untimely because it accrued more than four years before she filed this action; (2) whether the district6 court erred in refusing to toll the statute of limitations pursuant to the continuous representation doctrine; and (3) whether the district court erred in granting summary judgment on her breach of contract claim. We address each issue in turn. A. Legal malpractice claims Under New Mexico law, a legal malpract ice claim must be filed within four years of the date of accrual. See Jaramillo v. Hood , 601 P.2d 66, 67 (N.M. 1979) (applying N.M. Stat. Ann. § 37-1-4 (19 78)). Accordingly, Ms. Cahn’s legal malpractice claims against Defendants are untimely if they accrued before April 27, 2014, that is, four years befo re she filed this action. The district court held her claims accrued no later than June 2013 and were therefore time-barred. A claim for legal malpr actice in New Mexico accrue s “when (1) the client sustains actual injury and (2) the client discovers, or through reasonable diligence should discover, the facts essen tial to the cause of action.” Sharts v. Natelson , 885 P.2d 642, 645 (N.M. 1994) (footnote and internal quotation marks omitted). The essential facts the client must or should have discovered fo r the statute of limitations to begin to run are that “he or she has suffer ed a loss and that th e loss may have been caused by the attorney’s wrongful act or omission.” Id. “The question [of] when a client is deemed to have discovered an at torney’s malpractice a nd the resulting injury is generally a question of fact, but where the undisputed facts show that the client knew, or should have been aware of th e negligent conduct on or before a specific date, the issue may be decide d as a matter of law.” Id. at 647 (internal quotation marks and brackets omitted).7 Ms. Cahn concedes that she suffered actu al injury “at the time that Defendants failed to timely name Dr . Berryman in the medical malpractice lawsuit,” Aplt. Opening Br. at 10 n.2, because this alleged negligence ultimately led her to lose her claim against Dr. Berryman. This concession is in acco rd with New Mexico law, which holds that a party sust ains actual injury “when malp ractice results in the loss of a right, remedy, or interest, or in the imposition of a liability . . . regardless of whether future events may a ffect the permanency of th e injury or the amount of monetary damages even tually incurred.” Sharts , 885 P.2d at 646 (i nternal quotation marks omitted)). But Ms. Cahn argues here, as she did to th e district court, that she did not discover this injury until April 30, 2015, when the New Mexico Court of Appeals overturned the lower court decision that had relied on due process principles to allow her to proceed with her untimel y filed claims. Up until this decision, Ms. Cahn asserts, “a reasonabl e layperson in [her] position would not have reason to believe that her attorney had caused he r harm.” Aplt. Opening Br. at 12. We disagree. We begin our analysis by noting that the New Mexico Supreme Court has rejected the propositi on that a client is not inju red until the final judicial determination that a right has been lost due to allege d malpractice. See Sharts , 885 P.2d at 646. In Sharts , the plaintiff-client allege d his former attorney had committed legal malp ractice in drafting covenants that erroneously restricted development of a tract of plaintiff’s la nd. The defendant-attorney moved for summary judgment on the ground that the action was barred by the four-year statute of limitations. The district court denied the motion and the court of appeals affirmed,8 holding that the plaintiff had not been ha rmed by the alleged malpractice until a court fixed the plaintiff’s rights by entering a de claratory judgment that the restrictive covenants applied to th e land in question. See id. at 645, 646. But the New Mexico Supreme Court expressly rejected the court’ s reliance on this judi cial determination, declaring instead that the client was injured by his at torney’s malpractice much earlier, when the mistaken covenants caused him to lose the ri ght to develop the property as he had planned. See id. at 646. This was so, the court explained, because “a right, remedy or interest is usually lost . . . at the time of a lawyer’s error, even though a court does not so d eclare until a later date” Id . (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 18.15, at 137 (3d ed . 1989 & Supp. 1993) [hereinafter Legal Malpractice ]). Thus, when the attorney ’s “malpractice results in the loss of a right,” as Ms. Cahn alleges, the client is in jured “regardless of whether future events,” such as the Court of Appeals decisi on here, “may affect the permanency of the injury or the amount of monetary damages ev entually incurred.” Id

. Ms. Cahn acknowledges this language in Sharts , but asserts it is not relevant to determining when she discovered or should have discovered Defendants’ malpractice and the resulting injury. In support of th is position, she points to the New Mexico Supreme Court’s observation in Sharts that “the unpredictab ility in resolution through the judicial process may ex cuse discovery of the injury.” Id. at 646 (quoting Legal Malpractice § 18.11, at 42-43). But Ms. Ca hn reads too much into this statement, especially in li ght of the New Mexico court’ s further discussion of the9 discovery issue in Sharts . Nowhere in Sharts , for example, does the New Mexico court suggest a general rule that a client neither knows nor should know of his or her attorney’s malpractice and resulting harm until the harm is fixed by a c ourt decision. To the contrary, in Sharts the New Mexico Supreme Court did not look at all to the judicial decision that confir med the plaintiff-client’s lo ss in determining when he discovered or should have di scovered his attorney’s ma lpractice and the resulting loss. Instead, it held th e plaintiff-client “either knew or should have known, as a matter of law, that [his a ttorney] may have been neglig ent in drafting the covenants and that he [the client] had suffered loss orharm as a result” wh en the client brought a declaratory judgment action in an attemp t to avoid the potential harm (enforcement of the restrictive covenants) cause d by his attorney’s negligence. Id. at 647. Obviously, this discovery date preceded th e judicial determination confirming the harm that was later en tered in that action. 2

2Ms. Cahn argues this resu lt is distinguishable because the plainti ff-client in Sharts knew of his attorney’s error as a resu lt of receiving letters from two attorneys representing adverse parties and a title company that asserted the restrictive covenants applied to the property in questi on. But we see no material distinction between the notice these as sertions provided and thatprovided by Dr. Berryman’s assertion in his September 2012 interlocutory appeal a pplication that Ms. Cahn and her attorneys had erred by failing to timel y identify and name him in the medical malpractice action. Nor are we persuaded that Sharts is distinguishable because “in addition” the court there noted the plainti ff-client demonstrated actual knowledge of the attorney’s error a few months after he filed the de claratory judgment action when he threatened to sue his attorney for malpra ctice. 885 P.2d at 647; see id. at 644. Not only was this an alterna tive basis for the court’s disc overy holding, but in this case, Ms. Cahn testified thatby June 2013 she too believ ed Defendants had made a mistake in failing to identify Dr. Berryman earli er in the litigation.10 This discussion in Sharts suggests that under New Me xico law a client knows or should know of her attorney’s neglig ence and the resulting harm, as a matter of law, when she has notice of the negligent conduct and re sulting potential harm and is forced to take action to avoid or mitigate that harm. Here, as disc ussed in more detail below, there is no dispute that Ms. Cahn knew of Defenda nts’ alleged negligence in failing to timely identify a nd name Dr. Berryman no later than June 2013, knew this negligent failure put her claims against him at risk of di smissal, and was forced to take action, i.e., defending against Dr. Berryman’s timelin ess challenge, in an effort to avoid this harm. Accordingly, under Ne w Mexico law she cannot claim that she neither knew nor should ha ve known of Defendants’ alleged negligence and the resulting harm until the New Mexico Court of Appeals determined the extent and permanence of that harm in its April 30, 2015 decision. Ms. Cahn further asserts that she did not discover th at Defendants had committed an error un til the New Mexico Court of App eals’s decision because it was only then that she learned that Defendants had been mistaken in advising her that New Mexico law allowed her to assert he r claim against Dr. Be rryman even though she and Defendants knew it was filed outsi de the statutory period. But the malpractice Ms. Cahn alleged in this action is not this mistaken advice, it is that Defendants “fail[ed] to time ly discover the identity of Dr. Berryman within the Medical Malpractice Act’s statute of repos e and fail[ed] to timely amend [her]11 complaint . . . to name Dr. Berr yman as an individual defendant.” 3 Jt. App. at 10. Ms. Cahn does not and cannot contend that she was unaware of this alleged error until the New Mexico Court of A ppeals issued its decision. Similarly, Ms. Cahn also asserts that Defendants’ mistaken advice prevented her from discovering that she suffered any ha rm as a result of De fendants’ negligence until the New Mexico Court of Appeals pr oved that advice wrong by ruling that her claims were time-barred. But the undis puted facts show that Ms. Cahn knew or should have known during the district court proceedings that her ability to pursue Dr. Berryman for malpractice was at risk as a result of Defendants’ alleged negligence in failing to timely name him. Ms. Cahn also testified that she believed Defendants had made a mistake in not na ming Dr. Berryman earlier by the time of the June 2013 conditional settlement. Furthe r, Ms. Cahn was aware at the time of the settlement that she would no t receive the stipulated da mages, if at all, until Dr. Berryman’s timeliness appeal was deci ded. This delay and any expenses Ms. Cahn incurred in litigating th e timeliness issue ar e also injuries attributable to Defendants’ alleged negligence that Ms. Cahn knew or should ha ve known of no later than June 2013. See Sharts , 885 P.2d at 646 (holding actual injury “may take the form of consequential or inci dental damages, such as atto rney’s fees or costs incurred

3 Similarly, in identifying when she suffered actual injury as a result of Defendants’ alleged malpractice, Ms. Cahn poi nts to “the time Defendants failed to timely name Dr. Berryman in the medical malpractice lawsuit.” Aplt. Opening Br. at 10 n.2.12 as a result of the alleged ma lpractice, even though thes e sums may be relatively minor compared with the main damage claim”). Finally, Ms. Cahn asserts the district court’s summary judgment decision must be reversed because the court improperl y weighed the evidence against her in deciding that her claims accrued no later than June 2013 and were therefore time-barred. Based on our review of the re cord, we discern no su ch error. Ms. Cahn testified that she knew at the time Defe ndants discovered Dr. Berryman’s identity and added him to the medical malp ractice complaint th at these actions occurred after the statutory period to sue had e xpired and that the statutory time bar would therefore be an issue in maintaining her claim against him. Her testimony al so established that she knew of Dr. Berryman’s motion to di smiss her claims based on Defendants’ failure to timely add him to her suit. She further te stified that she reviewed Dr. Berryman’s application fo r interlocutory appeal in September 2012, in which he identified actions Defendants ha d failed to take that w ould have allowed them to identify and name the doctor before the stat ute of repose expired. As a result, she knew or should have known by then of Defendants’ allege d errors and omissions in failing to timely identify Dr. Berryman . Finally, Ms. Cahn testified that by June 2013, when the conditional stipulated judgment was entered, she believed that Defendants had made a mistake in not identifying Dr. Berryman earlier in the litigation and knew that Dr. Berryman was appealing the judgment as a result of the mistake and that she would notreceive the stipulated dama ges if he prevailed.13 In light of this record and New Mexico law as described above, the undisputed facts show that by no later th an June 2013, Ms. Cahn had suffered actual injury as a result of Defendants’ failure to timely identify and name Dr. Berryman in the medical malpractice complaint, and knew or shoul d have known of Defendants’ negligent conduct and that she had been injured as a result. Accordingly, we agree with the district court that Ms. Cahn’s legal malp ractice claims accrued no later than June 2013, more than four years be fore she filed this action.
B. Continuous representation doctrine 1. The district court’s decision “Under the continuous representation doctrine, running of the statute of limitations is tolled until the representation term inates with respect to the matters that underlie the malpractice action.” Sharts , 885 P.2d at 647. “The purpose of the doctrine is to avoid unnecessarily disrup ting the attorney-client relationship.” Id. (internal quotation ma rks omitted). Ms. Cahn argued to the district court thather claims were ti mely based on the doctrine, but the district court did not a pply it because the New Mexico courts have not adopted the doctrine to date and becau se the court was not convinced that the doctrine applied in light of the undisputed facts. Ms. Cahn now urges us to reverse the district court and apply the doctrine to toll the statute of lim itations on her claims. As the district court properly found, the initial problem with Ms. Cahn’s request is that New Mexico’s appellate courts have not adopted the doctrine, even though they have had several opportun ities to do so. Most notably, in Sharts , the14 New Mexico Supreme Court expressly declined the plaintiff’s request that it adopt the doctrine, stating it was “not inclined to adopt the doctrine at this time (and in this case).” 885 P.2d at 647. The New Mexico Court of Appeals noted this decision in declining to adopt the doctrine in a subsequent malpractice action. See LaMure v.
Peters , 924 P.2d 1379, 1385 (N.M. Ct. App. 1996) (declining plaintiffs’ request to adopt the doctrine in an accounting malpra ctice action and noting the New Mexico Supreme Court’s “recent, express di sinclination to adopt” the doctrine); see also Delta Automatic Sys., Inc. v. Bingham , 974 P.2d 1174, 1181 (N.M. Ct. App. 1998) (noting that the New Mexico Supreme C ourt “express[ed] reservations” about the doctrine in Sharts ). Indeed, we recognize that, in li ght of these decisions, a panel of this court has previously expressed reluct ance to adopt the continuous representation doctrine “on behalf of New Mexico courts.” Spencer v. Sommer , 91 F. App’x 48, 52 (10th Cir. 2004) (unpublished). Ms. Cahn argues the cited New Mexico decisions are distinguishable because in each case the New Mexico court found that even if it adopted the doctrine, it was not applicable to the case be fore it. Here, Ms. Cahn asse rts, the doctrine would apply and toll the statute of limitations on her le gal malpractice claim until the end of 2014, when Defendant Wood retired, thereby bri nging her legal malpr actice claims within the four-year statute of limitations. We do not share Ms. Cahn’s confidence that the continuous representation doctrine, if adopted, would apply and toll the statute of limitations in this case. The doctrine only applies “until the representation terminates w ith respect to the matters15 that underlie the malpractice action.” Sharts , 885 P.2d at 647. Ms. Cahn testified that she understood that De fendants had handed her case over to another attorney, Ms. Weingartner, when the stipulated judgm ent entered in June 2013 and that she did not think that she had any contact with De fendants after this date. Ms. Cahn counters by noting that Defendants remained coun sel of record in her case against Dr. Berryman at least until Defendant Wood retir ed and closed his firm late in 2014. But the relevant inquiry here is not “whether an attorney-client relationship still exist[ed] but when the representation of the specific matt er terminated.” Id. at 648 (internal quotation marks omitted). Ms. Cahn did not produce evidence disputing that Defendants’ representation of her in the medical malpractic e action effectively ended when they handed her case over to Ms. Weingartner. And as a result of this hand-off, it is also not clear to us th at the purpose of the doctrine, avoiding unnecessary disruption to the attorney-client relationship, see id. at 647 , would be served by applying the doctrine to toll Ms. Cahn’s claims against the Defendants. Given these uncertainties and the New Mexico courts’ failure to a dopt the continuous representation doctrine as described above, we see no error in the district court’s decision not to adopt and apply the doctr ine in deciding Defe ndants’ motion for summary judgment. 2. Motion to certify Perhaps anticipating this outcome, Ms. Cahn has also filed a motion to certify this issue to the New Mexico Supreme Court. More specifically, she requests that we ask the New Mexico Supreme Court “[w] hether New Mexico law recognizes the16 continuous representation doctrine which tolls the li mitation period for a legal malpractice claim while an attorney repr esents his or her clie nt on the same subject matter giving rise to the legal malpractic e claim[.]” Pl.-Aplt. ’s Mot. to Certify Question of State Law at 1. Implicitly, she al so asks that we defer our decision on her appeal until the New Mexico Suprem e Court responds to this question. “When state law permits, this court may: (1) certify a question arising under state law to that state’s highe st court according to that cour t’s rules; and (2) abate the case in this court to await the state cour t’s decision of the certified question.” 10th Cir. R. 27.4(A). New Mexico permits its highest state tribunal to “answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the cert ifying court and there is no controlling appellate decision, constitutional provision or statute of this state.” N.M. Stat. Ann. § 39-7-4 (1978). In deci ding whether to grant a certification request, we also look to federal la w, which counsels that “we apply judgment and restraint before certifying,” and limit certification to “circumstances where the question before us (1) may be determinative of the case athand and (2) is suffi ciently novel that we feel uncomfortable attempting to deci de it without further guidance.” Pino v. United
States , 507 F.3d 1233, 1236 (10th Cir. 2007). The decision on whether to certify a state-law question ultimately “rests in th e sound discretion of the federal court.” Lehman Bros. v. Schein , 416 U.S. 386, 391 (1974). Upon consideration of these state a nd federal standards, we deny Ms. Cahn’s motion. As described above, her questi on is not novel, because the New Mexico17 appellate courts have considered it on se veral occasions. That the New Mexico Supreme Court has thus far expressly decl ined to adopt the doctrine also weighs against certification. In a ddition, we are not persuade d that Ms. Cahn’s question, even if answered in the affirmative, may be determinative in this case because, for the reasons we have explained, it is far from certain that the continuous representation doctrine, if adopted by the New Mexico Supreme Court, would apply here. We also note that Ms. Cahn did not ask the district court to certify this question before it ruled, which is another fact or that weighs ag ainst her request. See, e.g. , Massengale v. Okla. Bd. of Exam’rs in Optometry , 30 F.3d 1325, 1331 (10th Cir. 1994) (“We generally will notcertify questions to a stat e supreme court when the requesting party seeks certification only after having received an adverse decision from the district court.”) Accordingly, we decline to certify Ms. Cahn’ s question and deny her motion. C. Breach of contract claim Finally, Ms. Cahn argues the district court erred in granting summary judgment on her breach of contract clai m, without giving her notice and an opportunity to argue that it was subject to the longer statut e of limitations applicable to actions founded on a writ ten contract. But this argum ent rests on a false premise, which is that Defendants only moved fo r summary judgment on her professional negligence claim. In fact , as the district court r ecognized, Defendants’ motion consistently sought dismissa l of Ms. Cahn’s “claims” on th e ground that they were time-barred. E.g. , Jt. App. at 17, 18, 24, 89, 103. If Ms. Cahn believed that her18 breach of contract claim was not subject to the four-year statute of limitations for legal malpractice claims thatDefendants argued, then she should have presented this argument to the district court. She did not do so. 4 “As a general matter, arguments not ra ised before the district court are forfeited on appeal.” United States v. Garcia , 936 F.3d 1128, 1131 (10th Cir. 2019); see Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10t h Cir. 2011). We only consider such forfeited arguments under the plain error standard of review. 5 See
Garcia , 936 F.3d at 1131. Ordinarily, “if a defendant does not argue for plain error in his opening brief on appeal, he wa ives any plain error argument.” Id. Here, Ms. Cahn did not argue plain error in her op ening brief or even in her reply brief after Defendants raised the forfeiture issue in respon se to her opening brief. Accordingly, she has waived th is argument in this court, and we do not consider it. See Richison , 634 F.3d at 1130–31 (explaining thatthe failure to argue plain error “marks the end of the road for an argumen t for reversal not fi rst presented to the district court”).

4 We also note that Ms. Cahn does not challenge the district court’s finding that both her professional negligence and breach of contract claims “are based on allegations of legal malpra ctice.” Jt. App. at 103.

5 “To show plain error, a party must establish the presence of (1) error, (2) that is plain, which (3) affects substantial rights, a nd which (4) seriously affects the fairness, integrity, or public reput ation of judicial proceedings.” Richison , 634 F.3d at 1128.19 CONCLUSION For the reasons stated above, we affirm the district cour t’s dismissal of Ms. Cahn’s claims and deny her motion to certify a question of state law.

Entered for the Court

Jerome A. Holmes Circuit Judge