Ann Shively, in her capacity as presumptive personal representative on behalf of all… v. Utah Valley University; Astrid S. Tuminez; Karen Clemes; Sara J. Flood

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ANN SHIVELY, in her capacity as
presumptive personal representative on
behalf of all beneficiaries of the estate of
Michael Jay Shively,
Plaintiff - Appellant,
v.
UTAH VALLEY UNIVERSITY; ASTRID
S. TUMINEZ; KAREN CLEMES; SARA
J. FLOOD,
Defendants - Appellees.
No. 20-4088
(D.C. No. 2:20-CV-00119-DB)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, KELLY, and CARSON, Circuit Judges.
_________________________________
Dr. Michael Jay Shively taught at Utah Valley University (“UVU”) from 1993
until his death. In response to allegedly false accusations of misconduct, UVU
administrators opened an investigation into Dr. Shively in March 2019 that lasted
over five months. University officials suspended him with pay during that time. The
investigation eroded Dr. Shively’s mental health. He committed suicide in August.
Plaintiff Ann Shively, his wife, sued UVU and the administrators involved in the
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 6, 2022
Christopher M. Wolpert
Clerk of Court
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investigation on behalf of his estate, alleging due process violations, wrongful death,
negligent infliction of emotional distress, breach of implied contract, and civil
conspiracy. The district court dismissed every claim with prejudice after Defendants
moved for judgment on the pleadings. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I.
Dr. Shively, a tenured professor, taught at UVU, a public university, and
directed its anatomy program. 1 UVU’s administrators began investigating Dr.
Shively after receiving complaints about his teaching performance and behavior
toward students and colleagues. Plaintiff alleged that Defendant Sara Flood, another
UVU professor, filed complaints and solicited student complaints against Dr. Shively
because she wanted his job. During the investigation, UVU suspended Dr. Shively
but allowed him to continue receiving his full salary and benefits. The investigation
lasted over five months, from March until Dr. Shively’s untimely death in August
2019. According to Plaintiff, UVU administrators knew the complaints lacked
credibility but prolonged the investigation to isolate and shame Dr. Shively. They
even pressured him to retire or resign. The investigation caused Dr. Shively severe
emotional distress—and the administrators knew it. The emotional distress led to his
suicide in August 2019.
1 This case comes before us at the motion to dismiss stage. So we “accept all
the well-pleaded allegations of the complaint as true and must construe them in the
light most favorable to the plaintiff.” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th
Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013)).
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Following Dr. Shively’s death, Plaintiff sued UVU, UVU’s President, Dr.
Astrid S. Tuminez, UVU’s General Counsel at the time, Karen Clemes, and Flood.
Plaintiff alleged (1) Tuminez and Clemes violated Dr. Shively’s due process rights by
suspending him based on a bogus investigation and without him committing “a
serious offense affecting the public interest” as required in UVU’s Policies and
Procedures; (2) UVU’s investigation wrongfully caused Dr. Shively’s death;
(3) UVU and its administrators negligently inflicted emotional distress on Dr.
Shively by initiating and unnecessarily prolonging the investigation; (4) UVU
breached its implied contract with Dr. Shively; and (5) Tuminez, Clemes, and Flood
conspired to remove Dr. Shively from his job.
The district court dismissed Plaintiff’s claims with prejudice. It dismissed the
due process claims for failing to plead the deprivation of a clearly established
property right. It determined that the Governmental Immunity Act of Utah barred the
wrongful-death and negligent-infliction-of-emotional-distress claims. It dismissed
the contract claim for failure to allege damages. And it dismissed the conspiracy
claim for failure to allege a meeting of the minds.
Plaintiff appeals the district court’s dismissal with prejudice of every claim
except the civil-conspiracy claim. 2
2 Plaintiff only mentions the civil-conspiracy claim in her opening brief in two
lines—both without any analysis of a civil-conspiracy claim. See Appellant’s Br. at
11 (“[T]he district court erred in dismissing the breach of contract and civil
conspiracy claims with prejudice when the only purported defects were pleading
issues.”); id. at 44 (“[T]he district court’s order with respect to Shively’s breach of
contract and civil conspiracy claims were based solely on alleged pleading errors.”).
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II.
“We review a district court’s grant of a motion for judgment on the pleadings
de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Colony
Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (citation omitted). This
means we accept Plaintiff’s factual pleadings as true and resolve all reasonable
inferences from the pleadings in favor of Plaintiff. Id. To survive a Rule 12(b)(6)
motion, Plaintiff’s complaint must allege sufficient facts to state a claim for relief
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (defining a facially
plausible claim as one where “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged”).
III.
Plaintiff contends the district court improperly dismissed her due process
claims because Defendants deprived Dr. Shively of his constitutionally protected
property interest in continued employment with UVU. Plaintiff also argues that the
district court incorrectly interpreted the Governmental Immunity Act of Utah.
Plaintiff finally appeals the district court’s dismissal of her contract claim for failure
to plead damages. Taking each issue in turn, we affirm.
A.
This passing mention fails to sufficiently brief that claim. Plaintiff has thus waived
that issue. Adler v. Wal-Mart Stores, 144 F.3d 664, 679 (10th Cir. 1998)
(“Arguments inadequately briefed in the opening brief are waived . . . .”).
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We begin with the due process claims. Plaintiff must get over the qualified-
immunity hurdle to survive dismissal of these claims. Qualified immunity “protects
public employees from both liability and from the burdens of litigation arising from
their exercise of discretion.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.
2019) (internal quotation marks omitted). To overcome qualified immunity, Plaintiff
must prove (1) Defendants violated Dr. Shively’s statutory or constitutional right that
was (2) clearly established when UVU suspended him. See Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011). The Court can tackle either prong first. Id. The district court
determined that Tuminez and Clemes did not deprive Dr. Shively of his property
interest in continued employment. We agree with the district court because Dr.
Shively’s suspension with pay does not offend due process; and even if it did, the
right is not clearly established under the particular facts alleged in this case.
The Fourteenth Amendment forbids “any State [from] depriv[ing] any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. For a state actor to deprive a citizen of a property interest, the Due Process
Clause requires the actor to provide some sort of notice and hearing “appropriate to
the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (citation omitted). Independent sources, such as state law, create and define
the property interest. Id. at 538 (citing Bd. of Regents of State Colls. v. Roth, 408
U.S. 564, 577 (1972)). For example, a state can confer a constitutionally protected
property interest in continued employment. See id. at 538–39. And we have held
tenured professors have a property interest in their employment. See, e.g.,
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Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 517 (10th Cir. 1998). But the key
question is whether Plaintiff pleaded facts plausibly showing that Tuminez and
Clemes deprived Dr. Shively of this protected property interest. See Hyde Park Co.
v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000).
Generally, suspension with pay does not raise due process concerns because a
suspension with pay does not infringe on an employee’s protected property right in
continued employment. See Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th
Cir. 1991) (citing Loudermill, 470 U.S. at 544–45 (noting that suspending an
employee with pay can avoid due process problems)); see also Pitts v. Bd. of Educ.,
869 F.2d 555, 556 (10th Cir. 1989) (finding that the district court correctly held that
“suspension with pay did not deprive [the public employee] of any measurable
property interest.”). But Plaintiff’s argument is more nuanced. Plaintiff contends
that administrators may violate due process by indefinitely suspending a tenured
faculty member with pay where the suspension causes the faculty member to suffer
“indirect economic effects.”
We have never adopted (or even considered) Plaintiff’s theory in a published
opinion. Recognizing the lack of circuit authority for her position, Plaintiff
seemingly relies on a Seventh Circuit case which mentions the possibility that
potential “indirect economic effects” of a suspension with pay could “trigger the
protection of the Due Process Clause.” Luellen v. City of East Chicago, 350 F.3d
604, 613–14 (7th Cir. 2003) (citation omitted).
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But neither Luellen nor any other case relied upon by Plaintiff is persuasive in
the context of this case. Indeed, although some of Plaintiff’s authorities mention the
“indirect economic effects” theory, none actually found a deprivation of a protected
property right under the Fourteenth Amendment on that basis. See id. at 608–09,
613–14 (no property deprivation when a fire department suspended an employee with
pay pending a nearly twenty-one-month investigation even though he lost the
opportunity to earn on-call pay during the investigation); Townsend v. Vallas, 256
F.3d 661, 664–66, 676 (7th Cir. 2001) (no property deprivation when a school
temporarily reassigned a teacher to an administrative position during a nearly three-
month investigation, foreclosing his ability to earn extra income from coaching but
still paying him his full teacher’s salary); Bordelon v. Chi. Sch. Reform Bd. of Tr.,
233 F.3d 524, 526, 530–31 (7th Cir. 2000) (no property deprivation when a school
board transferred a principal to an administrative position for fifteen months but still
afforded him his full pay and benefits); Swick v. City of Chicago, 11 F.3d 85, 86–87
(7th Cir. 1993) (no property deprivation when a police department placed an officer
on involuntary sick leave for over a year but still paid him his full income). And
Plaintiff’s complaint never alleged that Dr. Shively’s loss of an “indirect economic
benefit” resulted in a due process violation. So, even if we found Plaintiff’s “indirect
economic benefit” theory persuasive, it lacks merit in this appeal because she never
sought relief on that basis in the district court.
Defendant’s conduct also did not violate a right (assuming one exists) clearly
established under our precedents. To meet her burden of showing a right is clearly
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established, Plaintiff need not pinpoint precedent with precisely the same facts as her
case. See A.M. v. Holmes, 830 F.3d 1123, 1135–36 (10th Cir. 2016) (citations
omitted). But she must show that in light of “pre-existing law,” the unlawfulness of
Defendant’s conduct was “apparent.” Id. at 1136. Plaintiff alleged that Defendants
violated Dr. Shively’s due process rights by temporarily suspending him with pay
during an investigation without disciplining him, simply because the suspension
lasted over five months. But she can point to no precedent to support the idea that
suspending a tenured professor with pay pending an investigation violates due
process when the suspension lasts for a sufficiently lengthy amount of time. In fact,
our precedents seemingly establish the contrary. See Hicks, 942 F.2d at 746 n.4;
Pitts, 869 F.2d at 556. With this legal background in mind, we conclude Plaintiff
failed to plead “facts sufficient to show . . . that [Tuminez and Clemes] plausibly
violated [Dr. Shively’s] constitutional right[], and that [this right was] clearly
established at the time.” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir.
2008). So qualified immunity protects Tuminez and Clemes from liability for the
first due process claim.
The second due process claim fails, too. Plaintiff argues that Defendants
violated Dr. Shively’s right that UVU not suspend him unless he was “charged with a
serious offense affecting the public interest,” as stated in UVU’s Policies and
Procedures. This language, according to Plaintiff, created a protected property
interest in not being suspended unless authorized by UVU policy. And because no
one had charged Dr. Shively with “a serious offense affecting the public interest,”
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UVU administrators had no authority to suspend him with pay—violating his
property interest. They also allegedly violated Dr. Shively’s due process rights by
not providing him with notice of the suspension, evidence supporting a reason to
suspend him, or a pre-suspension hearing.
As we previously noted, independent sources with “existing rules or
understandings” create and define property interests. Roth, 408 U.S. at 577. Even if
a property interest would not normally exist, a contract guaranteeing substantive
rights combined with surrounding circumstances can create one. See Hulen v. Yates,
322 F.3d 1229, 1240 (10th Cir. 2003) (per curiam). Plaintiff claims Hulen supports
her position because both sides agree that UVU’s Policies and Procedures created an
implied contract with Dr. Shively. But the contract in Hulen—the source creating the
property interest—differs materially from UVU’s policies.
In Hulen, we held that a professor had a property interest in his departmental
assignment based on the school’s faculty manual, which functioned like a contract,
and the school’s customs and practices. Id. at 1243–44. The manual guaranteed
tenured professors the ability to “mutually determine[] the new conditions” with an
administrator before the school could modify the professor’s assignment. Id. at 1241.
This language, we reasoned, placed a “substantive restriction” on the school, creating
a property interest in tenured appointments and changes in employment status
because “mutual consent or due process” protected both. Id. The due process
protections stemmed from other provisions of the manual that prohibited
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administrators from taking “unfair, unreasonable, arbitrary, capricious, or
discriminatory” actions, including faculty discipline decisions. Id. at 1241–42.
No such guarantee, or anything like it, exists in UVU’s policies. The pertinent
provision states: “[i]n the event that a faculty member is charged with a serious
offense affecting the public interest, the President may suspend the faculty member
from professional duties . . . .”. Like the district court noted, the language offers a
reason to suspend the faculty member (“may”); it does not limit suspension to only
when the school charges the faculty member with a serious offense affecting the
public interest. The policy defines the property interest. See Roth, 408 U.S. at 577–
78 (likening a statute that created a property interest to a school’s employment terms,
determining that the terms also created a property interest). And like a statute, when
the plain language of the policy is unambiguous, “our inquiry ends.” See United
States v. Broadway, 1 F.4th 1206, 1211 (10th Cir. 2021) (“If the statute’s text is
unambiguous, then its plain meaning controls, and our inquiry ends.”). Plaintiff asks
us to read into a rule language not present to create a substantive property interest.
We decline to do so.
And even if we could construe the policy to confer a property interest in
employment by limiting suspensions, the right at issue in this case is not clearly
established. To meet her burden, Plaintiff must provide a Supreme Court or Tenth
Circuit decision on point or show the weight of authority from other courts. See
Schwartz v. Booker, 702 F.3d 573, 587 (10th Cir. 2012) (citation omitted). Plaintiff
relies on Hulen to argue that Dr. Shively’s right that UVU not suspend him without
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satisfying the policy condition was clearly established. But Hulen only establishes
that an employment contract that contains certain language can create a protected
property interest, not that every employment contract does so. UVU’s policy does
not create a property interest in “not being suspended” unless “charged with a serious
offense affecting the public,” as Plaintiff suggests. Thus, Plaintiff cannot prove
Defendants violated a clearly established right “of which a reasonable government
official would have known,” Hulen, 322 F.3d at 1236 (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)), and qualified immunity also protects Tuminez and
Clemes for this claim. 3
B.
Plaintiff also challenges the district court’s holding that the Governmental
Immunity Act of Utah (“the Act”) bars her negligent-infliction-of-emotional-distress
and wrongful-death claims.
3 Plaintiff also points us to a different provision in UVU’s policies, which
describes the tenured position as “permanent and not subject to termination or
substantial reduction in status, except under those circumstances discussed herein.”
But Dr. Shively neither lost his job nor experienced a substantial reduction in his
status. To reiterate, UVU suspended Dr. Shively with pay pending an investigation
into his teaching without disciplining him. The result of that investigation may have
led to termination or a substantial reduction in his status, but during the investigation,
neither occurred. So even if § 4.1.2 created a property interest, Plaintiff has not
pleaded facts plausibly showing that Tuminez or Clemes deprived Dr. Shively of
such a property interest. See Hyde Park Co., 226 F.3d at 1210.
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The Act shields state governmental entities and their employees from suit “for
any injury that results from the exercise of a governmental function,” unless the Act
waives immunity. Utah Code Ann. § 63G-7-201(1). The Act waives immunity when
a state employee, acting within the scope of employment, proximately causes an
injury by a negligent act or omission. Id. § 63G-7-301(2)(i). But the waiver is not
absolute: immunity exists when the injury “arises out of or in connection with, or
results from . . . infliction of mental anguish.” Id. § 63G-7-201(4)(b). The Act
broadly defines “arises out of or in connection with, or results from” as follows:
(a) there is some causal relationship between the conduct or
condition and the injury;
(b) the causal relationship is more than any causal
connection but less than proximate cause; and
(c) the causal relationship is sufficient to conclude that the
injury originates with, flows from, or is incident to the
conduct or condition.
Id. § 63G-7-102(1). In short, the Act retains immunity for government employees
whose negligent acts or omissions inflict mental anguish.
We note at the start of this discussion that UVU, as a public university, is a
state entity that employed the individual defendants. The district court determined
that the individual defendants acted within the scope of their employment by
initiating the investigation. Plaintiff does not challenge that conclusion on appeal.
So we focus on the Act’s applicability. The district court reasoned that Plaintiff’s
theory of her case rests on the idea that Defendants inflicted such mental anguish on
Dr. Shively that they drove him to suicide. Based on this reasoning, the district court
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concluded the Act barred the wrongful-death and negligent-infliction-of-emotional-
distress claims against UVU and its employees. We agree.
The Act “focuses on the conduct or situation out of which the injury arose, not
on the theory of liability crafted by the plaintiff or the type of negligence alleged.”
Ledfors v. Emery Cnty. Sch. Dist., 849 P.2d 1162, 1166 (Utah 1993). And courts
should “strictly appl[y]” it. Hall v. Utah Dep’t of Corr., 24 P.3d 958, 962 (Utah
2001). Plaintiff alleged that UVU administrators relied on baseless allegations to
initiate a sham investigation into Dr. Shively, intending to isolate and shame him. In
fact, according to the allegations, they continued the investigation needlessly, even
after learning that Dr. Shively suffered extreme emotional distress because of the
prolonged investigation. Taking these allegations as true, the administrators’ conduct
led to Dr. Shively’s death—the conduct “out of which the injury arose.” Ledfors,
849 P.2d at 1166. Put another way, Dr. Shively’s emotional distress, and eventual
death, “flows from” their “infliction of mental anguish” during the investigation.
§ 63G-7-102(1)(c), 201(4)(b). Because Dr. Shively’s injuries flowed from
Defendants’ infliction of mental anguish, Defendants retain immunity under the Act
for Plaintiff’s negligent-infliction-of-emotional-distress claim. 4
4 Plaintiff insists that the mental-anguish exception applies only when a party
seeks mental-anguish damages. So, because she does not seek mental-anguish
damages, the Act waives immunity. To support this argument, Plaintiff urges us to
rely on a Utah Court of Appeals case that interpreted an earlier version of the Act.
See Gabriel v. Salt Lake City Corp., 34 P.3d 234, 237 (Utah Ct. App. 2001). That
case analyzed the 2001 version of the Act, which did not define “arises out of or in
connection with, or results from.” See Utah Code Ann. § 63-30-2 (2001). Gabriel
fails to illuminate how the most recent version of the Act—which includes the
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The same analysis applies to Plaintiff’s wrongful-death claim—Dr. Shively’s
death “arose out of” UVU administrators’ “infliction of mental anguish.” See id.
§ 63G-7-201(4)(b). Besides, under Utah law, a wrongful-death claim will not exist
without an underlying personal-injury claim. Feldman v. Salt Lake City Corp., 484
P.3d 1134, 1139 (Utah 2021). Thus, because the Act immunizes UVU and its
administrators for the negligent-infliction-of-emotional-distress claim, it does so for
the wrongful-death claim as well.
For the first time on appeal, Plaintiff argues that the Act does not apply
because Defendants’ conduct violated Dr. Shively’s due process rights under Utah’s
constitution, which the Act does not protect. 5 Maybe so. But a party forfeits
arguments not raised at the district court. Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1128 (10th Cir. 2011) (citations omitted). Forfeited arguments only warrant
reversal if the party can show plain error. Id. We only review for plain error,
though, when the party argues for plain error in the opening brief. See id. at 1131
(citing McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010)). Because Plaintiff
definition, see § 63G-7-102(1)—applies to Plaintiff’s allegations. It thus cannot
guide our analysis here. And in any event, the Act does not limit the mental-anguish
exception to only when the plaintiff seeks mental-anguish damages.
5 Plaintiff couches this argument as another reason to support her argument
that the Act’s immunity does not apply to Defendants, rather than a new theory. But
Plaintiff’s new position contradicts the only position she took at the district court.
There, Plaintiff argued only that the Act waived immunity for her claims. Now
Plaintiff argues that the Act does not even apply to her claims. Appellate courts do
not “serve as a second-shot forum . . . where secondary, back-up theories may be
mounted for the first time.” Richison, 634 F.3d at 1130 (alteration in original)
(quotation omitted). Plaintiff’s state-constitutional argument smacks of exactly the
type of “back-up” theory forfeited on appeal if not raised at the district court.
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failed to argue for plain error in her opening brief, we will not consider her new
theory.
C.
Plaintiff also challenges the district court’s determination that she failed to
plead damages for her breach-of-implied-contract claim. Under Utah law, to
sufficiently plead a breach-of-contract claim, a plaintiff must allege “(1) a contract,
(2) performance by the party seeking recovery, (3) breach of the contract by the other
party, and (4) damages.” Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 230–
31 (Utah 2014). Typically, we calculate damages based on what a party would
expect to receive had the breaching party performed plus any other incidental losses
from not performing but less any costs saved. See Trans-W. Petroleum, Inc. v. U.S.
Gypsum Co., 379 P.3d 1200, 1206 (Utah 2016). We call these expectation damages.
Sometimes, a party can also recover consequential damages—a loss
foreseeably resulting from this particular contract breach. See id. at 1207 (quoting
Prince v. Peterson, 538 P.2d 1325, 1328 (Utah 1975) (describing consequential
damages as “particular items of damages which result from circumstances peculiar to
the case at hand.”)) To recover consequential damages, a plaintiff must prove (1) the
contract breach caused the consequential damages, which were (2) foreseeable when
the parties contracted and are (3) reasonably certain. Id. Expectation and
consequential damages should restore the nonbreaching party “to the position it was
in prior to the injury [caused by the breach].” Id. at 1206 (brackets and citation
omitted). Damages cannot be speculative; the evidence must “give rise to a
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reasonable probability that the plaintiff suffered damage as a result of a breach.”
Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah
1985).
Dr. Shively’s estate cannot claim any sort of expectation damages because he
received what he expected from his employment contract—his full salary and
benefits. But Plaintiff alleged in the alternative that Dr. Shively lost the opportunity
to teach at another school and that this “opportunity cost” entitles his estate to
consequential damages. On appeal, Plaintiff argues that the district court erred in not
recognizing that she could recover consequential damages. We disagree for a few
reasons.
First, and perhaps most importantly, Plaintiff never pleaded that Dr. Shively
sought employment at other universities with higher salaries but failed to obtain a
new job because of his temporary suspension at UVU. And it appears from the
record and Plaintiff’s pleadings that he could not have—because he did not actually
seek such alternative employment. 6 Because the complaint does not allege that Dr.
Shively sought employment at other universities which was foreclosed by
Defendant’s purported sham investigation, the district court had no basis on which to
accept Plaintiff’s argument.
6 In fact, Plaintiff admitted that Dr. Shively “did not seek alternative
employment,” thus demonstrating that we cannot calculate consequential damages to
a reasonably certain degree.
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Second, the notion that UVU breaching Dr. Shively’s employment contract
would preclude Dr. Shively from receiving a higher salary from a job he never
pursued at another university is speculative and not reasonably foreseeable under the
facts of this case. It is well-settled under Utah law that consequential damages may
not be recovered where damages are speculative. See Atkin Wright & Miles, 709
P.2d at 336. And Plaintiff’s argument is foreclosed because her “opportunity costs”
teem with uncertainty, since we have no idea where Dr. Shively would have worked
or what his new, higher salary would pay him. The same goes for any reliance
damages sought—we cannot calculate such damages when Plaintiff has offered no
evidence to show that Dr. Shively expended any funds in reliance on his employment
contract. Plaintiff pleaded no damages sufficient to support a breach-of-implied-
contract claim.
D.
Plaintiff lastly appeals the district court’s dismissal with prejudice of her
contract claim. We review a district court’s decision to dismiss with prejudice for an
abuse of discretion. United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d
787, 809 (10th Cir. 2002), rev’d in part on other grounds, Rockwell Int'l Corp. v.
United States, 549 U.S. 457 (2007). An “arbitrary, capricious, whimsical, or
manifestly unreasonable” decision meets this standard. Brooks v. Mentor Worldwide
LLC, 985 F.3d 1272, 1282 (10th Cir. 2021) (quoting Bylin v. Billings, 568 F.3d
1224, 1229 (10th Cir. 2009)).
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Before the district court, Defendants answered Plaintiff’s complaint and, less
than a week later, moved for judgment on the pleadings. See Fed. R. Civ. P. 12(c).
In that motion, Defendants requested that the district court dismiss all claims with
prejudice. Plaintiff had twenty-one days to cure any defects in her complaint
identified in the answer, Fed. R. Civ. P. 15(a)(1)(B), but she did not. Plaintiff
similarly did not seek leave to amend to cure any deficiencies mentioned in the
motion for judgment on the pleadings, either. Instead, Plaintiff opposed the motion.
But even in that filing, Plaintiff did not address whether the district court should
dismiss her claims with prejudice.
We have held that a plaintiff cannot successfully challenge a dismissal with
prejudice when she only offered to cure pleading deficiencies in a response brief
without seeking to amend her complaint. See Brooks, 985 F.3d at 1282–83. In
Brooks, we determined that a party’s failure to adequately request leave to amend did
not put the issue before the district court. Id. at 1283. And when a party fails to seek
leave to amend the complaint, thereby not putting the issue before the district court,
the party forfeits the issue on appeal. See City of Harper Woods Emp.s’ Ret. Sys. v.
Olver, 589 F.3d 1292, 1304 (D.C. Cir. 2009). The district court did not abuse its
discretion when it dismissed the contract claim with prejudice, because Plaintiff had
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the opportunity to amend her complaint and never did so.
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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