The court's decision was rendered in the same year as the promulgation of Rule 17(b), and although not addressed to the rule itself, has been uniformly interpreted as requiring that federal courts apply the law of the state of incorporation when determining corporate capacity under Rule 17(b). McGinnis Theatres Pay T.V., Inc. v. Video Independent Theatres, Inc., 386 F.2d 592 (10th Cir. 1967), cert. denied, 390 U.S. 1014, 88 S. Ct. 1265, 20 L.Ed.2d 163 (1968); Southern Land, Timber Pulp Corp. v. United States, 322 F. Supp. 788 (N.D.Ga. 1970); Joseph Muller Corp. v. Societe Anonyme De Gerance, 314 F. Supp. 439 (S.D.N.Y. 1970); American Optical Co. v. Philadelphia Electric Co., 228 F. Supp. 293 (E.D.Pa. 1964). The capacity of the plaintiffs to sue in this court under Rule 61(b) must therefore be determined by the law of the State of California.
Research has only discovered one Georgia case construing § 1325. In Southern Land, Timber and Pulp Corp. v. United States, 322 F. Supp. 788 (N.D.Ga. 1970) it was held that a suit instituted by a corporation, more than three years after its dissolution, against the United States for a tax refund was barred by § 1325. In addition, although § 1325 is patterned after § 98 of the Model Business Corporation Act, no case construing that Act has been found directly in point.
The corporate dissolution involved in this case was accomplished under the prior law and would appear to be governed by its provisions. See Southern Land, Timber Pulp Corp. v. U.S. A., 322 F. Supp. 788 (N. D. Ga., 1970). However, we do not regard either of these limitation statutes to be applicable as a bar to appellant's claim.