Opinion
Case No. 02-1052-WEB
March 20, 2003
MEMORANDUM AND ORDER
This matter came before the court on the defendants' Motion for Summary Judgment and/or Motion to Dismiss. The court held a hearing on the motion on March 20, 2003, and orally granted the motion at the conclusion of the hearing. This written memorandum will supplement the court's oral ruling.
I. Facts.
Plaintiff Hugo Rodriguez filed this diversity action against defendants Tam and Thuy Nguyen on February 14, 2002. Doc. 1. The suit arises out of a fire that started inside plaintiff's apartment at the McAdams Place Apartments at 1540 East 17th Street in Wichita, on February 18, 2000. According to the complaint, the defendants Tam and Thuy Nguyen were the owners of the apartment complex. The complaint alleges that negligence on the part of the defendants, including a failure to install proper smoke detectors, caused plaintiff to be injured in the fire.
On May 10, 2002, plaintiff obtained an order from the court for an extension of time until July 15, 2002, to obtain service of process on the defendants. Doc. 5. A return executed by a process server alleges that on June 19, 2002 (approximately 125 days after the complaint was filed), a summons and copy of the complaint were served upon "Thuy Thi Nguyen" by leaving copies at the defendant's dwelling house with a person of suitable age and discretion then residing therein, specifically with "Anh Vo, age 15, daughter of Thuy Thi Nguyen at 2602 Sennet Street, Wichita, Kansas 67211." Doc. 6.
The defendants filed an answer to the complaint on July 30, 2002, in which they asserted numerous defenses, including insufficient service of process, lack of personal jurisdiction, and the statute of limitations. Doc. 8.
The defendants subsequently filed a motion for summary judgment in which they claimed plaintiff had not obtained service of process on either of the defendants. The motion argued that service had never been obtained on defendant Tam Nguyen, and that the "Thuy Thi Nguyen" served by plaintiff is not the Thuy Thi Nguyen identified as a defendant in the complaint. Defendants further asserted that, regardless of any dispute about the identity of the individual served on June 19, 2002, the instant action is barred because it was not commenced within the Kansas two-year statute of limitations period. In his response to the motion, plaintiff argued there was a factual dispute as to the identity of the defendants such that summary judgment was inappropriate. Plaintiff's brief did not address the statute of limitations issue. The defendants subsequently moved for an extension of time to file a reply brief, asserting that additional time was needed to take the depositions of the individuals allegedly served by plaintiff. The court instead proposed, and the parties agreed, that an evidentiary hearing before the court would be more expeditious. Accordingly, the court held an evidentiary hearing on March 20, 2003, to hear the parties' evidence concerning service of process.
Highly summarized, the evidence at the hearing on March 20th showed that on June 19, 2002, a woman named Thuy Thi Nguyen resided at 2602 Sennet Street in Wichita with her husband, Xu Vo, and their children, including a daughter named Anh Vo, age 15. This is the individual who was served with process by plaintiff on June 19, 2002. This Ms. Nguyen had resided at the McAdams Place Apartments until sometime in 1998. She did not own the apartment complex, and she is not related to the Thuy Thi Nguyen who owned the apartments at the time of the fire. According to the uncontroverted evidence at the hearing, the Thuy Thi Nguyen served on June 19th does not know the Thuy Thi Nguyen who is a defendant in this action and had never met or heard of her until this hearing. After this Ms. Nguyen received the papers served on her by plaintiff, she had her daughter call a telephone number on the papers and explain that she was not the person they were looking for. The evidence showed that the Thuy Thi Nguyen who is a defendant in this action resides with her husband Tam Van Nguyen at 2965 Wild Rose Court in Wichita, together with the couple's three children. The defendants have resided on Wild Rose Court since 1997. Prior to that, they lived on West Hickory Lane in Wichita. Ms. Nguyen and her husband purchased the McAdams Place Apartments in approximately December of 1998. (This was after the other Ms. Nguyen had moved out of the apartment complex.) The couple sold the apartment complex in December of 2001 to a limited liability company. She does not know, and had never heard of, the Thuy Thi Nguyen served by plaintiff in this case. During the time that she owned the apartment complex, Ms. Nguyen used apartment #201 at the complex as a leasing office, but she did not reside in the apartment.
As counsel for plaintiff conceded at the conclusion of the hearing, there is no evidence that the defendants attempted to conceal their whereabouts or to avoid service of process. Nor is there any evidence of collusion between the two individuals named Thuy Thi Nguyen. Likewise, there is no evidence that either of the defendants learned of the pendency of this suit within 120 days after the filing of the complaint. Plaintiff has not alleged or cited any grounds for tolling of the statute of limitations.
II. Discussion.
The substantive law of Kansas, including its statutes of limitation, applies to this diversity action. See, e.g., Miller v. Armstrong World Indus., Inc., 949 F.2d 1088, 1089 n. 3 (10th Cir. 1991). The injuries complained of by plaintiff in this case occurred on February 18, 2000, which means the action had to be commenced by February 18, 2002, to come within the Kansas limitations period. See K.S.A. § 60-513(a)(4) (providing for two-year limitations period). The court must look to Kansas law to determine when the action was "commenced" for purposes of the limitations period. See Habermehl v. Potter, 153 F.3d 1137, 1139 (10th Cir. 1998). See also Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980) (state service of process rule that is an integral part of the state statute of limitations must be applied in diversity action).
Under K.S.A. § 60-203(a)(1), a civil action is "commenced" at the time of: (1) filing a petition with the clerk of the court, if service of process is obtained within 90 days after the complaint is filed (plus an additional 30 days upon good cause shown); or (2) service of process, if service is not made within the foregoing 120-day period. Under this provision, if the plaintiff obtained service within (at most) 120 days after filing the complaint, the suit is considered to have commenced as of the date the complaint was filed. If service is made not made until after the 120-day period, however, the action is not commenced until the date service is obtained. See Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). This is true notwithstanding that the federal rules of civil procedure may authorize the plaintiff a longer period of time in which to obtain service. Habermehl, supra.
Applying the foregoing authorities to the uncontroverted facts before the court, the court concludes that the defendants' motion for summary judgment must be granted. As an initial matter, the evidence shows that no valid service has been obtained on either of the defendants. Service was not obtained on defendant Tam Nguyen, and plaintiff's attempt to serve defendant Thuy Nguyen was made upon the wrong person. As such, the court lacks personal jurisdiction over the defendants and the action must be dismissed. Additionally, even if plaintiff's service upon Thuy Thi Nguyen were considered valid, such service was not obtained until more than 120 days after the filing of the complaint, which means the action against her was commenced beyond the limitations period. Finally, it would be futile at this point to permit plaintiff additional time to make another attempt at service, because any such action would now be barred by the two-year statute of limitations.
III. Conclusion.
The defendants' Motion for Summary Judgment and/or Motion to Dismiss (Doc. 17) is hereby GRANTED, and the action is DISMISSED for insufficient service of process and lack of personal jurisdiction. Because plaintiff's claim against the defendants is now barred by the statute of limitations, the dismissal shall be with prejudice. The clerk is directed to enter a judgment of dismissal with prejudice in favor of defendants Tam V. Nguyen and Thuy Thi Nguyen, and against plaintiff Hugo Rodriguez.
IT IS SO ORDERED.