At page 1288 Analyzing limitations periods and claim relation back33 citing cases“a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.”
- Merritt v. Knowles, No. 6:24-cv-01365 (M.D. Fla. July 16, 2025).([A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.)
- Kolak v. Backerville, No. 24-1182 (10th Cir. Apr. 29, 2025).unpublished([A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.)
- Ferraro v. Humphrey, 242 F. Supp. 3d 732 (N.D. Ind. 2017).published([A] separately field claim, as opposed to an amendment or supplemental pleading, does not relate back to a previously filed claim.)
- Netzer v. Continuity Graphic Assocs., Inc., 963 F. Supp. 1308 (S.D.N.Y. 1997).published(‘Equitable tolling’ of a statute means only that the running of the statute is suspended, not that the limitations period begins over again.)
- Rawlings, No. 2:25-cv-02602 (D. Kan. Mar. 25, 2026).P. 15(c)(1)(C)(ii). 39 Dixon v. United States, 185 F.3d 873 (Table), 1999 WL 387188 , at *1 (10th Cir. 1999) (“Because this suit was filed as a separate claim and not as an amendment or any kind of supplementary pleading, it cannot relate…
- JORDAN v. United States, No. 24-1028 (Fed. Cl. Dec. 19, 2025).publishedBut as cases analyzing Federal Rule of Civil Procedure 15(c) agree, “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” Benge v. United States, 17 F.3d 1286,…
- Taylor, No. 1:23-cv-21881 (S.D. Fla. Nov. 24, 2025).Benge v. United States, 17 F.3d 1286, at 1288 (10th Cir. 1994) (citing Pipkin v. United States Postal Serv., 951 F.2d 272 , 274 (10th Cir. 1991)); accord Burkes v. Nassau Cnty.
- Makozy, No. 9:25-cv-80966 (S.D. Fla. Nov. 4, 2025).Fla. July 16, 2025) (quoting Rayo v. New York, 882 F. Supp. 37, 40 (N.D.N.Y. 1995)); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994); see also Nyland v. Moore, 216 F.3d 1264 , 1266 (11th Cir. 2000) (pleading cannot relate back…
- Plater v. Poirot, No. 5:24-cv-00859 (W.D. Okla. Sept. 20, 2024).However, “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) (internal citations omitted).
- Asphalt Trader Ltd. v. Beall, No. 1:20-cv-00155 (D. Utah Sept. 10, 2021).Federal Rule of Civil Procedure 15(c) permits the relation back of an “amendment of a pleading.” But “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” Beng…
Show 23 more citing cases
- Cook v. United States, No. 4:16-cv-00555 (N.D. Okla. Sept. 27, 2019).Because Mr. Pipkin failed to commence his FTCA claims in a timely manner, the district court’s order dismissing these claims was not erroneous.”); see also Wright v. United States, 46 F.3d 1153 (10th Cir. 1995); Benge v. United States, 17…
- Thompson v. Greyhound Lines, Inc., 574 F. App'x 407 (5th Cir. 2014).unpublished([A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.)
- Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F. Supp. 2d 935 (S.D. Tex. 2013).published(plaintiffs’ contention that their second complaint should relate back to filing of their first timely filed complaint, which was dismissed for lack of proper service of process, is foreclosed by Pipkin v. U.S. Postal Se…)
- Smith v. Kansas Dep't of Corr., 455 F. App'x 841 (10th Cir. 2011).unpublishedIt is well-settled that “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994); see also Marsh v. Soa…
- Alexander v. Foegen, 443 F. App'x 333 (10th Cir. 2011).unpublishedSee Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir.2000); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994); Fed.R.Civ.P. 15.
- Hughes v. Equity Off. Props. Trust, 245 F. App'x 88 (2d Cir. 2007).unpublishedEquitable tolling “ ‘means only that the running of the statute is suspended, not that the limitations period begins over again.’ ” Tristar Corp. v. Freitas, 84 F.3d 550, 553 (2d Cir.1996) (quoting Benge v. United States, 17 F.3d 1286, 128…
- Wolters v. Smith, 168 F. App'x 863 (10th Cir. 2006).unpublishedFirst, to the extent that Mr. Wolters argues that the claims in his 2005 complaint relate back to the prior case, it is well-settled that “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate ba…
- Franklin Sav. Corp. v. United States (In Re Franklin Sav. Corp.), 385 F.3d 1279 (10th Cir. 2004).published (Oklahoma saving statute)
- Wukawitz v. United States, 170 F. Supp. 2d 1165 (D. Utah 2001).publishedBenge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994); Pipkin v. United States Postal Service, 951 F.2d 272, 274 (10th Cir.1991); Farlaino v. United States, 1997 WL 139768, *3 (10th Cir.1997) (Unpublished).
- Rush v. Lock, 19 F. App'x 416 (7th Cir. 2001).unpublishedBeck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir.1995); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994); see also Holmberg v. Armbrecht, 327 U.S. 392, 395 , 66 S.Ct. 582 , 90 L.Ed. 743 (1946) (congressional statutes of limit…
- Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000).publishedFed.R.Civ.P. 15(c) permits the relation back of an “amendment of a pleading.” However, Mr. Marsh’s second habeas petition was more than an amendment; it was a separate filing, some three years after the first petition. “[A] separately file…
- United States ex rel. Koch v. Koch Indus., Inc., 188 F.R.D. 617 (N.D. Okla. 1999).publishedIn Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994), the court stated “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim.” In them objection, plaint…
- Barr v. United States, No. 98-7164 (10th Cir. May 19, 1999).unpublishedMs. Barr cannot relate the untimely filing date of her second complaint back to the timely filing date of her first complaint: “a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a pre…
- Hyatt v. United States, 968 F. Supp. 96 (E.D.N.Y 1997).publishedSee also Lambert v. United States, 44 F.3d 296, 298-99 (5th Cir.1995) (implying that equitable tolling may be appropriate in some FTCA suits, albeit not the instant one); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994) (same); L…
- Fed. Sec. L. Rep. P 99,230 Tristar Corp. v. Ross A. Freitas & Carolyn Safer Kenner, 84 F.3d 550 (2d Cir. 1996).published(quotation marks omitted)
- James M. Saathoff v. E. John Whelan Charles Hulbert, 81 F.3d 169 (9th Cir. 1996).unpublishedBenge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994) (federal tolling); see also Rare Coin Galleries v. A-Mark Coin Co., 248 Cal.Rptr. 341, 345 (Cal.Ct.App.1988) (applying California tolling principles).
- Cruse v. Bd. of Cnty. Commissioners, 910 P.2d 998 (Okla. 1995).published Benge v. U.S., 17 F.3d 1286, 1288 (10th Cir.1994); Pipkin v. United States Postal Serv., 951 F.2d 272 , 274 (10th Cir.1991). .
- Roth v. State, 2021 OK CR 27, 499 P.3d 23.publishedSee Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). 2 In its supplemental brief, the State urges this Court instead to apply the doctrine of laches to preclude Roth from raising his McGirt claim this late in his proceedings.
- Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015).publishedAs the district court ably explained, the doctrine of relation back “applies to an amendment to a pleading in the same action.” Aplt.App. at 100 (emphasis added); see Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir.2000) (“[A] separately fi…
- Dixon v. United States, No. 98-6455 (10th Cir. June 14, 1999).unpublished See Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994).
- Susan C. Farlaino v. United States, 108 F.3d 1388 (10th Cir. 1997).published (holding under similar facts that "a separately filed claim, as opposed to an amendment or supplementary pleading, does not relate back to a previously filed claim)
- Farlaino v. United States, No. 95-4165 (10th Cir. Mar. 25, 1997).unpublished (holding under similar facts that “a separately filed claim, as opposed to an amendment or supplementary pleading, does not relate back to a previously filed claim)
- Stanfill v. United States, 43 F. Supp. 2d 1304 (M.D. Ala. 1999).published(implying that equitable tolling may be appropriate in some FTCA suits)
At page 1322 A rule that would exclude Apple’s damages evidence simply 18 because it relies upon information from an Apple technical expert is unreasonable and contrary 19 to Rules 702 and 703 and controlling precedent.1 citing case
- NXP USA Inc v. Impinj Inc, No. 2:20-cv-01503 (W.D. Wash. June 8, 2023).(A rule that would exclude Apple’s damages evidence simply 18 because it relies upon information from an Apple technical expert is unreasonable and contrary 19 to Rules 702 and 703 and controlling precedent.)
Other citing cases
- James Wright v. United States, 46 F.3d 1153 (10th Cir. 1995).published
v.
UNITED STATES of America, Defendant-Appellee
Plaintiffs appeal the district court’s grant of defendant’s motion to dismiss. The district court found that the limitations period on plaintiffs’ claims had run. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Background
United States Army Staff Sergeant Michael Benge died in 1989 due to a brain tumor. Plaintiffs Floyd and Jean Benge are Michael Benge’s parents. Plaintiff Travis Benge is Michael Benge’s son.
As permitted under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-79, Plaintiffs Jean Benge and Travis Benge filed administrative claims with the Department of the Navy against the United States alleging medical malpractice on the part of naval hospital doctors in diagnosing and treating Michael Benge. On June 24, 1991, plaintiffs’ claims were denied. On December 23, 1991, plaintiffs filed an action for damages for wrongful death in the United States District Court for the Eastern District of Oklahoma. That action was dismissed on May 1, 1992, for lack of proper service of process.
Subsequently, on June 22, 1992, plaintiffs filed the action now on appeal, for practical purposes identical to the action filed on December 23, 1991. The district court granted defendant’s motion to dismiss the action. It found that Floyd Benge’s claim was barred because he did not exhaust administrative process as is required under the FTCA, 28 U.S.C. § 2675(a), and that Jean and Travis Benge’s claims were barred by the six-month FTCA limitations period, 28 U.S.C. § 2401(b). Plaintiff Floyd Benge does not appeal the district court’s decision dismissing his claim for failure to exhaust administrative remedies. However, plaintiffs Jean and Travis Benge appeal the district court’s finding that their claims are time barred.
[*1288] II. Limitations Period for FTCA Claims
“A tort claim against the United States shall be forever barred ... unless action is begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). It is undisputed that the current action was filed well after this six month limitation period had expired (plaintiffs were notified of the denial of their administrative claims on June 24, 1991, and filed the current action some twelve months later on June 22, 1992). Plaintiffs, nonetheless, present three arguments as to why their suit is not barred: 1) the filing of plaintiffs’ second complaint should relate back to the filing of their first complaint which, though dismissed for lack of proper service of process, was filed within the six month limitations period; 2) the Oklahoma statute of limitations savings statute, Okla.Stat. tit. 12, § 100, should be applied so as to save plaintiffs’ claims; and 3) the doctrine of equitable tolling should be applied to plaintiffs’ complaint so as to effectively bring the complaint within the limitations period.
We find that plaintiffs’ first two assertions are foreclosed by our decision in Pipkin v. United States Postal Serv., 951 F.2d 272 (10th Cir.1991). Under Pipkin, a separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim. Id. at 274; see also Fed.R.Civ.P. 15. Also under Pipkin, the Oklahoma statute of limitations savings statute does not apply to federal claims such as those brought by plaintiffs. 951 F.2d at 274-75. Thus, the only remaining issue in this appeal concerns whether the doctrine of equitable tolling saves plaintiffs’ claims. We find that it does not. .
It is settled law that in a narrow range of situations a federal statute of limitations may be equitably tolled. See Irwin v. Veterans Admin., 498 U.S. 89, 94-96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990); Pipkin, 951 F.2d at 275. However, we need not reach the substance of plaintiffs’ equitable tolling argument in this case. Assuming arguendo that plaintiffs’ situation is one to which equitable tolling should be applied, the doctrine would not save plaintiffs’ claims.
“Equitable tolling” of a statute means only that the running of the statute is suspended, not that the limitations period begins over again. In this case, plaintiffs filed their first complaint only two days before the expiration of the initial six month limitations period. Because all but two days of the limitations period had already run before equitable tolling might apply, the doctrine would give plaintiffs only a very short additional period to refile after dismissal of the initial complaint. That dismissal came on May 1,1992, and plaintiffs did not refile their complaint until June 22, 1992, well after any additional period to which plaintiffs would be entitled.
Because we find plaintiffs’ claims barred on statute of limitations grounds, we do not reach the parties’ arguments with respect to the so-called “Feres Doctrine.” See generally Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
III. Conclusion
The district court’s grant of defendant’s motion to dismiss is AFFIRMED.