dissenting:
The majority would hold that, for purposes of deciding diversity of citizenship of the parties, this action was “commenced” by the filing of a claim with a Maryland state administrative agency, rather than by “filing a complaint with the [federal] court,” as required by Rule 3 of the Federal Rules of Civil Procedure.
I respectfully dissent.
This suit is a medical malpractice action by plaintiffs Janet Rowland and Donald Rowland against five medical doctors. Under Maryland statute, the Rowlands were required to file a claim with the Maryland Health Care Claims Arbitration Office as a precondition to filing a suit in either state or federal court. Md.Cts. & Jud.Proc.Code Ann. § 3-2A-02; Davison v. Sinai Hospital of Baltimore, 462 F.Supp. 778, 780 (D.Md.1978), aff'd, 617 F.2d 361 (4th Cir. 1980). The Health Care Claims Arbitration Office (“HCAO”) is an administrative agency of the State of Maryland. It is not a state or federal court.
The Rowlands filed their claim with the Maryland HCAO on July 16, 1985. At the time they filed their claim, both the Row-lands and the defendants were residents of Maryland.
On May 6, 1987, the HCAO granted defendants’ motion for summary judgment on the ground that the claim was untimely under the three-year statute of limitations applicable to medical malpractice claims against health care providers in Maryland. Md.Cts. & Jud.Proc.Code Ann. § 5-109.
On June 15, 1987, plaintiffs initiated this suit by filing their complaint in the United States District Court for the District of Maryland. Plaintiffs allege that they were residents of West Virginia at the time they filed their complaint in federal court. Although defendants dispute the fact of plaintiffs’ West Virginia residence on June 15, 1987, the court below assumed it. We likewise assume that, for the purpose of deciding this appeal, the parties were of diverse citizenship on June 15, 1987.
The district court dismissed the suit on the basis that the suit commenced for diversity purposes on July 16, 1985, the date the claim was filed with the Maryland state agency (HCAO), rather than on June 15, 1987, the date plaintiffs filed their complaint in United States District Court. The district judge observed that the filing of the HCAO claim tolled the state statute of limitations. He dismissed the case because he concluded that there should not be two dates for commencement of suit, and be*112cause he was concerned not to “expand” diversity jurisdiction.
As the majority observes, this reasoning is not supported by the law. Federal courts sitting in diversity jurisdiction are bound to apply state law in determining what event tolls a state statute of limitations, notwithstanding the language of Fed.R.Civ.Proc.Rule 3. (“An action is commenced by filing a complaint with the court.”) Walker v. Armco Steel Corporation, 446 U.S. 740, 751-752, 100 S.Ct. 1978, 1985-1986, 64 L.Ed.2d 659 (1980); See, also, Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Where a state recognizes an event different from the filing of the complaint in the court as commencing the suit for the purpose of tolling a state statute of limitation, Rule 3 still governs the definition of “commencement of suit” for other purposes, such as time deadlines for responsive pleadings. Walker, 446 U.S. at 751-752, 100 S.Ct. at 1985-1986.
The majority also recognizes that the question when an action commences for the purpose of determining diversity is a matter of federal law. See, Ziady v. Curley, 396 F.2d 873, 874 (4th Cir.1968); See, also, Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.1983) (following Ziady). However, the majority reaches a result that is unsupported by federal law.
The circuit courts that have addressed the issue unanimously hold that, except in cases removed from state court, diversity of citizenship is determined with reference to the date on which a complaint is filed in federal court. Topp v. CompAir Inc., 814 F.2d 830, 832, n. 1 (1st Cir.1987) (“Citizenship, for purposes of establishing diversity jurisdiction, is determined as of the date of initiation of suit ... [citations omitted] ... Here, since suit was filed on August 30, 1985, the citizenship of CompAir Inc. will be determined as of that date.”); Lugo-Vina v. Pueblo International, Inc., 574 F.2d 41, 42, n. 1 (1st Cir.1978) (“[Diversity] [jurisdiction is to be determined as of the time of the filing of the complaint.”) Wigand v. Flo-Tek, Inc., 609 F.2d 1028, 1032 (2nd Cir.1979) (“[Diversity] jurisdiction is to be determined as of the commencement of suit. ... When the complaint in this case was filed on September 19, 1972, the offices and operations of Flo-Tek had been located in Hopewell Junction, N.Y. for approximately a year [footnote omitted].”); Nationwide Mutual Fire Insurance Co. v. T & D Cottage Auto Parts and Service Inc., 705 F.2d 685, 688 (3rd Cir.1983) (“... diversity jurisdiction is generally determined by the facts that existed at the time the complaint was filed.”); Mullins v. Beatrice Pocahontas Co., 489 F.2d 260, 261 (4th Cir.1974) (“Plaintiffs complaint was filed on February 14, 1968, and that, of course, is the crucial date for determination of defendant’s citizenship.”); Seafoam, Inc. v. Barrier Systems, Inc., 830 F.2d 62, 66 (5th Cir.1987) (“It is well established law that the jurisdiction of a federal court sitting in diversity is determined as of the time of the filing of the complaint.”); Jason’s Foods, Inc. v. Peter Eckrich & Sons, Inc., 768 F.2d 189, 190 (7th Cir.1985) (“... we direct the district judge to make and certify to us, within thirty days, his finding on the defendant’s principal place of business as of the date the complaint was filed, which is the relevant date for purposes of establishing federal [diversity] jurisdiction.”); Co-Efficient Energy Systems v. CSL Industries, Inc., 812 F.2d 556, 557 (9th Cir.1987) (“Diversity of citizenship is determined as of the time of the filing of the complaint.”); Mann v. City of Tucson, Department of Police, 782 F.2d 790, 794 (9th Cir.1986) (“Existence of diversity jurisdiction is determined by the citizenship of the parties as the time of the filing of the complaint, not at the time the cause of action arose or after the action is commenced.”); Scoggins v. Pollock, 727 F.2d 1025, 1028 (11th Cir.1984) (Court determined diversity of citizenship by determining the facts as of the date the plaintiff filed the suit); Prakash v. American University, 727 F.2d 1174, 1179, n. 28 (D.C.Cir.1984) (“Diversity of citizenship must exist when the action is brought — here 1978— and not when the cause of action arose.”); Beghin-Say International v. Ole-Bendt Rasmussen, 733 F.2d 1568, 1572 (Fed.Cir. *1131984) (“That determination [whether the parties had diversity of citizenship] must be made as of the filing date of a complaint, or of an amended complaint, and cannot be changed by action of a party thereafter.”).
Those courts use the date the complaint is filed as the date of commencement of suit because they are bound to do so by Federal Rules of Civil Procedure Rule 3. Rule 3 states: “A civil action is commenced by filing a complaint with the court.” (Emphasis added.) The Advisory Committee’s note to Rule 3 states, “... 2. This rule governs the commencement of all actions, ...”
Rule 3 has the force and effect of a federal statute. Courts have adopted a narrowing construction of the Federal Rules of Civil Procedure only where that construction serves the goals of the Erie doctrine, (preserving the integrity of state substantive law in diversity cases), or where an application of a rule would exceed the limits imposed by the Constitution or the Rules Enabling Act, 28 U.S.C. § 2072. See, Walker, 446 U.S. at 751-752, 100 S.Ct. at 1985-1986. The application of the federal rules by a court sitting in diversity jurisdiction is not a matter of discretion.
When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their pri-ma facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions [footnote omitted].”
Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965) (Emphasis added.).
Here, as noted above, there is no issue of conflict between federal and state law because the question when diversity is determined is a matter of federal law. Nor is there any contention that the application of Rule 3 to determine diversity of citizenship would violate the Constitution or the Rules Enabling Act.
The majority holds that the HCAO filing was the date of commencement of suit because “the HCAO proceeding continued to have effect when and after the case took on a completely judicial aspect,” and “submission to the HCAO is a condition precedent to filing suit in federal court as well as state court.” These observations may be accurate, but they provide no basis for disregarding the plain language of Rule 3.
The majority’s holding is tinged with a further irony. The court could not exercise its subject matter jurisdiction at the time the HCAO claim was filed because exhaustion of the HCAO administrative process is a precondition of jurisdiction over a medical malpractice claim in Maryland. Davison, 462 F.Supp. at 780-781. Yet, under the majority’s view, this date is the appropriate time to which a court, subsequent to exhaustion of administrative remedies, looks back in order to determine if the parties are diverse. Thus, the majority would have a federal court determine its jurisdiction with reference to a time at which it could not have sustained its jurisdiction.
Because I respectfully believe the majority’s reasoning and result to be unsupported by law, and because I believe federal courts should apply the language of the Federal Rules of Civil Procedure, absent a compelling reason for a narrowing construction, I dissent.1
. Judge Hall has called attention to a prior decision by this court, Cannon v. Kroger Co., 832 F.2d 303 (4th Cir.1987).
In Cannon, plaintiff asserted that her suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, was commenced for the purpose of tolling the six-month statute of limitations when, in compliance with North Carolina Rules of Civil Procedure Rule 3, a North Carolina court issued a summons in response to plaintiff’s application to file a state court complaint.
A divided panel of the Fourth Circuit rejected that assertion. The majority held that the United States Supreme Court’s decision in West v. Conrail et al., 481 U. S. 35, 107 S.Ct. 1538, 95 *114L.Ed.2d 32 (1987), mandated the application of the Federal Rules to determine when the limitation period applicable to claims under § 301 was tolled. The majority also held that the North Carolina state court summons was not the equivalent of a Federal complaint under Fed.R.Civ.P.Rule 8(a)(2), and that because a complaint within the meaning of Rule 8(a)(2) was not filed within the limitation period, the action was not commenced within that period under Fed.R.Civ.P.Rule 3.
Although the facts and reasoning of Cannon are not identical, the decision lends support to the proposition that federal courts should apply the Federal Rules unless there is a compelling reason not to do so.