Opinion
No. 1:04-CV-52-TS.
October 5, 2004
MEMORANDUM OF DECISION AND ORDER
This matter is before the Court on the Defendant's Motion for Summary Judgment [DE 20], filed on April 13, 2004; the Plaintiffs' Motion for Personal Service Instanter [DE 17], filed on April 9, 2004; and the Plaintiffs' Motion for Leave to Amend Complaint [DE 23], filed on June 2, 2004. The Defendant's Motion for Summary Judgment will be granted and the remaining motions rendered moot.
BACKGROUND
On June 21, 2001, the Plaintiffs, Beatrice Rummell and Vicki Congrove, were in a car accident with the Defendant, Loraine D. Ehle, in Allen County, Indiana. On June 20, 2003, the Plaintiffs filed their Complaint against the Defendant in the United States District Court for the Northern District of Ohio, alleging that the Defendant's negligence caused the car accident and resulted in their injuries. The Plaintiffs did not submit a summons to the clerk of that court; no summons has ever been issued for service on the Defendant.
The Plaintiffs did file a Motion for Personal Service Instanter on April 9, 2004, requesting that the office of the United States Marshal serve the Defendant.
On November 2, 2003, the district court for the Northern District of Ohio issued an order to the Plaintiffs' counsel advising him that he had two weeks to show cause why the case should not be dismissed for want of prosecution. Counsel for the Plaintiffs mailed a copy of the Complaint to the Defendant, which prompted the entry of an appearance for the Defendant along with a motion to dismiss. In the December 2, 2003, Motion to Dismiss, the Defendant argued that the Plaintiffs' claims should be dismissed for lack of personal jurisdiction, insufficient service of process, and improper venue. On February 3, 2004, the district court in Ohio transferred the case to this Court, "due to want of venue in [the] Northern District of Ohio." (Feb. 3, 2004, Order.)
Following the transfer, the Defendant moved for summary judgment asserting that the case was time-barred by the Plaintiffs' failure to commence the action within Indiana's two-year statute of limitations. On April 13, 2004, the Plaintiffs requested additional time to respond to the Motion for Summary Judgment. The Court gave the Plaintiffs until June 14, 2004, to respond.
On April 16, 2004, the Defendant's counsel filed a "Suggestion of Death" informing the Court that the Defendant died on January 20, 2004. On June 2, 2004, the Plaintiffs filed a Motion for Leave to Amend Complaint to add the personal representative of the Defendant's estate, Roger D. Ehle. This Motion is still pending.
On June 18, 2004, the Plaintiffs sought an additional extension of time to respond to the Defendant's Motion for Summary Judgment so that they could conduct discovery under Federal Rule of Civil Procedure 56(f). The Defendant opposed the extension and on August 13, 2004, the Court issued an order denying the extension to conduct discovery, finding that the requested discovery was irrelevant to the issues to be determined on summary judgment. The Court, however, granted the Plaintiffs additional time to file a response brief. The Motion for Summary Judgment has been fully briefed and is ripe for ruling.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). Statute of limitations defenses are often suitable for an early decision on summary judgment, at least if the defenses are based on undisputed facts. McFarland Foods Corp. v. Chevron USA, Inc., 2001 WL 238084, at *1 (S.D. Ind. Jan. 5, 2001).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443.
DISCUSSION
In her Motion for Summary Judgment, the Defendant asserts that the Plaintiffs' case is time-barred by Indiana's two-year statute of limitations. See Ind. Code § 34-11-2-4(1). The Defendant, in response to the Plaintiffs' arguments that Ohio law applies, contends that because the case was transferred from an improper venue, the applicable law is that of the transferee court, the Northern District of Indiana. Accordingly, the Indiana rule that requires a summons to be tendered along with the complaint before the expiration of the statute of limitations bars the Plaintiffs' claims.
The Plaintiffs submit three arguments in opposition to the Defendant's statute of limitations claim: (1) the law of Ohio applies because the case was originally filed in Ohio; (2) a plaintiff is not required to present a summons to the clerk of court in a diversity case in federal court; and (3) under Indiana Trial Rule 4.15(F), the Plaintiffs substantially complied with the service rules. The Court does not find the Plaintiffs arguments persuasive and will grant summary judgment for the Defendant.
In diversity actions in federal court, state law dictates when a case is commenced for statute of limitations purposes. Walker v. Armco Steel Corp., 446 U.S. 740-52 (1980); Evans ex rel. Evans v. Lederle Labs., 167 F.3d 1106, 1112 (7th Cir. 1999) ("Statutes of limitations are generally considered part of the forum state's substantive law which federal courts must apply when sitting in diversity." (citing Guaranty Trust Co. v. York, 326 U.S. 99, 109-10 (1945)). When a case has been transferred from another district, as it has here, the court must determine whether the state laws of the transferee or the transferor court will apply.
The resolution of this issue depends on the basis for the transfer. A district court may transfer a case for the convenience of the parties and witnesses under 28 U.S.C. § 1404(a). A district court must dismiss or transfer a case that is in the wrong division or district. 28 U.S.C. § 1406(a). If the transfer is one for the convenience of the parties, the law of the transferor court applies. Ferens v. John Deere Co. 494 U.S. 516, 523 (1990) (discussing the policies that require a transferee forum to apply the law of the transferor court upon transfer under § 1404(a)). However, where an action was improperly filed in the transferor court, the transferee court should apply its own state's laws. Wisland v. Admiral Beverage Corp., 119 F.3d 733, 735-36 (8th Cir. 1997) (citing cases for proposition that transfer under § 1406(a) requires application of the law of the transferee court). Here, Judge James G. Carr transferred the case from the Northern District of Ohio, to this Court, because venue was lacking. Therefore, the law of Indiana applies to determine when the action was commenced.
There are compelling reasons for this rule: if the state law of the original forum was applied after transfer for improper venue, plaintiffs would be encouraged to shop for the forum with the most favorable state laws because, even if the case were transferred, they would still gain the benefit of the original forum's laws.
The Supreme Court of Indiana has held that a civil action is not timely commenced when a plaintiff files a complaint within the applicable statute of limitations period, but does not tender the summons to the clerk within that period. See Ray-Hayes v. Heinamann, 760 N.E.2d 172, 173 (Ind. 2002). The court referred to its decision in Boostrom v. Bach, 622 N.E.2d 175 (Ind. 1993), where it noted "the modern notion that the commencement of an action occurs when the plaintiff presents the clerk with the documents necessary for commencement of suit." Ray-Hayes, 760 N.E.2d at 173 (quoting Boostrom, 622 N.E.2d at 177). The summons is one of these essential documents. Id.
Requiring that the summons be tendered within the statute of limitations is also good policy because it promotes prompt, formal notice to defendants that a lawsuit has been filed. This not only helps to prevent surprise to defendants, but it also helps to reduce stagnation that might otherwise occur if claims could be filed only to remain pending on court dockets without notified defendants.Id. at 174.
The Ray-Hayes court also noted that its ruling coincided with, then recent, amendments to the Indiana Rules of Trial Procedure. Rule 3, entitled "Commencement of an action" provides:
A civil action is commenced by filing with the court a complaint or such equivalent pleading or document as may be specified by statute, by payment of the prescribed filing fee or filing an order waiving the filing fee, and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.
Ind. R. Trial P. 3. Rule 4(B) provides that, "[c]ontemporaneously with the filing of the complaint or equivalent pleading, the person seeking service or his attorney shall furnish to the clerk as many copies of the complaint and summons as are necessary." Ind. R. Trial P. 4(B).
The Plaintiffs try to circumvent the effect of Ray-Hayes by arguing that Rule 3, by its very language, only applies where service of process is "required" and "necessary" and that service is not required in a federal diversity action. The Plaintiffs argue that the federal rules require a plaintiff "to initially seek waiver of service of the summons and complaint from the defendant before it is necessary to submit the summons to the clerk of courts for service." (Pfs.'s Mem. at 6) (citing Federal Rule of Civil Procedure 4(d)). Accordingly, they argue, "it is neither required, nor necessary, as those terms are contemplated by Indiana Trial Rule 3, for a summons to be presented to a federal clerk of courts for service upon a defendant in a diversity action until the required effort to obtain waiver has been attempted." (Pfs.'s Mem. at 6.)
The Plaintiffs misread the federal rules; they do not "require" a plaintiff to seek waiver of service of the summons and complaint before service. The rules require service of the summons and complaint, or waiver of such service, within 120 days after filing the complaint. See Fed.R.Civ.P. 4(c) ("A summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of the summons and complaint within the time allowed under subdivision (m). . . ."); Fed.R.Civ.P. 4(m) ("If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, . . . shall dismiss the action. . . ."); Fed.R.Civ.P. 4(d)(2) ("To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of summons."). If a plaintiff chooses to seek waiver of service, the time sought seeking the waiver counts against the 120-day limit.
Thus, in a diversity action applying Indiana law, the plaintiff is required to effectuate service (1) within 120 days of filing the complaint and (2) within the state's statute of limitations. In this case, the Plaintiffs waited until one day remained in the statute of limitations to file their Complaint. Therefore, to timely commence their suit under Indiana law, they had to serve the summons within one day of filing the Complaint. Because the Plaintiffs failed in this regard, their suit is untimely and must be dismissed.
David D. Seigel, the author of the Supplemental Practice Commentaries to Federal Rule of Civil Procedure 4, devotes an entire section to the pitfalls a plaintiff filing under the court's federal diversity jurisdiction faces when the state law requires service of the summons within the applicable statute of limitations.
The Plaintiffs' final argument in response to the Defendant's Motion for Summary Judgment is that allowing their suit to go forward is consistent with Indiana Rule of Trial Procedure 4.15(F). This Rule provides that a summons and its service shall not "be set aside or adjudged insufficient" when it is defective, if it is "reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond." Ind. R. Trial P. 4.15(F). This subdivision does not operate to render service sufficient despite noncompliance with Rule 4 because subdivision (F) only cures technical defects in the service of process, not the total failure to serve process. Kelly v. Bennett, 732 N.E.2d 859, 862 (Ind.Ct.App. 2000); see also Overhauser v. Fowler, 549 N.E.2d 71, 73 (Ind.Ct.App. 1990) (finding that Rule 4.15(F) exists to avoid challenges to service of process based on technical defects and does not apply where plaintiff never executed service on the defendant). Rule 4.15(F) does not apply because the Plaintiffs failed to commence their action within the two-year statute of limitations.
There are no genuine issues of material fact and the Defendant is entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the Defendant's Motion for Summary Judgment [DE 20] is GRANTED. Judgement will be entered for the Defendant, Loraine D. Ehle, and against the Plaintiffs, Beatrice Rummell and Vicki Congrove. The Motion for Personal Service Instanter [DE 17] and Motion for Leave to File Amended Complaint [DE 23] are DENIED as MOOT.
SO ORDERED.