Citations
- 311 F. Supp. 1177
Full opinion text
MANSFIELD, District Judge.
In this diversity suit for personal injuries, defendant moves pursuant to Rule 12(b), F.R.Civ.P., for dismissal of the action on the grounds that (1) the action is barred by the running of the statute of limitations, and (2) the court lacks personal jurisdiction over the defendant because it is not engaged in business in New York.
The accident giving rise to the action occurred in Connecticut on December 16, 1966. Plaintiff commenced suit in this court by filing her complaint here on November 21, 1969. On December 15, 1969, the summons and complaint were lodged with the United States Marshal in this district for service upon the defendant. The Marshal then forwarded the complaint to the United States Marshal in Newark, N.J., where it was received on December 22, 1969. The summons and complaint were then served upon the defendant on December 30, 1969. The statute of limitations applicable to actions for personal injuries in Connecticut and New York is three years.
Under federal law the statute of limitations is computed from the date of accrual of the cause of action to the date when the action is commenced in the federal courts by the filing of a complaint, Rule 3, F.R.Civ.P. If this action were governed by the Federal Rules, therefore, it would not be barred by the statute of limitations because it was commenced within three years after the occurrence of the accident. Defendant, however, contends that under Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937), the method and time of commencement of the accident is governed by the law of the State of New York, which computes the statute of limitations from the date of the accrual of the cause of action to the date when the action is interposed by service of the summons upon defendant. N.Y. CPLR § 203(a). Accordingly, if New York law governed, the action would be barred by the three-year statute of limitations since the summons was not served upon the defendant until more than three years after the accident.
The sole authority cited by defendant for the proposition that New York law governs is Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958). This decision does not help the defendant, however. On the contrary, the court there, in affirming a district court decision in favor of the plaintiff upon an action based on the Federal Civil Rights Law, pointed out that while state law controlled as to the time within which such an action must be commenced, “the manner in which it is commenced and when it is deemed to have begun, being procedural and not substantive, is covered by the Federal Rules of Civil Procedure” (259 F.2d at 6).
Neither party has cited to us authorities which appear to govern the situation before us, notably Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) and Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (2d Cir. 1968). It is true that the Supreme Court in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), held that for the purposes of the Kansas statute of limitations the diversity tort action in that case had not been commenced until process had been served upon the defendant as required by Kansas law and hence was barred by the Kansas statute of limitations even though the complaint had been filed in accordance with Rule 3, F.R.Civ.P., within the period of the statute of limitations. However, in Hanna v. Plumer, supra, the Supreme Court reconsidered the entire question of the relationship of the Federal Rules to state law, and ruled that the method of service required to commence a lawsuit is governed by the Federal Rules rather than state law and that Erie R.R. v. Tompkins did not obligate the federal district court to follow the Massachusetts in-hand service procedure. Although the majority opinion of Chief Justice Warren distinguished Ragan, the concurring opinion of Justice Harlan pointed out that Ragan “if still good law, would * * * call for affirmance” and that in his opinion Ragan “was wrong” (at 476-477, 85 S.Ct. at 1147).
More recently the Court of Appeals for the Second Circuit in Sylvestri, supra, affirming a decision c