F I L E D
United States Court of Appeals
Tenth Circuit
AUG 24 1998
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT
CHARLES HABERMEHL and
FRANCES HABERMEHL,
Plaintiffs-Appellants,
No. 97-8065
v.
MICHAEL POTTER,
Defendant-Appellee,
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 96-CV-267)
Submitted on the Briefs:
Mark E. Macy of Bayless, Slater & Macy, P.C., Cheyenne, Wyoming, for
Plaintiffs-Appellants.
Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming, for Defendant-
Appellee.
Before SEYMOUR, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
SEYMOUR, Chief Judge.
Charles and Frances Habermehl brought this diversity tort suit in Wyoming
against Michael Potter, a resident of Michigan. The district court granted Mr.
Potter’s motion for summary judgment, ruling that the action had not been
commenced within the applicable statute of limitation. The Habermehls appeal
and we affirm. 1
On October 14, 1992, Mr. Habermehl was injured while on a hunting trip
near Rawlins, Wyoming, when Mr. Potter allegedly lost his balance and fell on
him. The Habermehls filed the complaint in this diversity action in the federal
district court in Wyoming on October 15, 1996, the last day for timely filing
under the statute of limitations governing Wyoming tort actions. See W YO . S TAT .
A NN . § 1-3-105(a)(iv)(C) (Michie 1997). Mr. Potter was not served with the
summons and complaint until January 30, 1997. The district court granted
summary judgment in favor of Mr. Potter on the ground that the action was not
timely under Rule 3(b) of the Wyoming Rules of Civil Procedure, which deems
the date of service to be the date of commencement of the action when a
defendant is not served within sixty days of the filing of the complaint. See Wyo.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
-2-
R. Civ. P. 3(b). The Habermehls contend on appeal that the district court should
have tolled the statute of limitations for 120 days under Rule 4(m) of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 4(m). 2
We review the grant or denial of summary judgment de novo, applying the
same standards as the district court. See Lowe v. Angelo’s Italian Foods, Inc., 87
F.3d 1170, 1173 (10th Cir. 1996). Summary judgment is appropriate if the
evidence before the court, when viewed in the light most favorable to the
nonmoving party, demonstrates that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of law. See Seymore v.
Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997).
In Walker v. Armco Steel Corp., 446 U.S. 740 (1980), the Supreme Court
held that unless there is a direct conflict between a federal rule and state law, the
state law applies in diversity actions. Id. at 752. The Habermehls contend that
2
Rule 4(m) provides:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the
action without prejudice as to that defendant or direct
that service be effected within a specified time; provided
that if the plaintiff shows good cause for the failure, the
court shall extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).
-3-
Rule 4(m) directly conflicts with Wyoming Rule 3(b) in that Rule 4(m) gives a
plaintiff 120 days after filing the complaint to serve the defendant whereas
Wyoming Rule 3(b) requires service within sixty days in order to maintain the
date of filing as the date of commencement of the action for statute of limitations
purposes. We are not persuaded there is a direct conflict between the two rules.
Federal Rule 4(m) merely sets a procedural maximum time frame for serving a
complaint, whereas Wyoming Rule 3(b) “is a statement of a substantive decision
by that State that actual service on, and accordingly actual notice by, the
defendant is an integral part of the several policies served by the statute of
limitations.” Walker, 446 U.S. at 751 (applying Oklahoma law). See also Jenkins
v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (applying Kansas law);
Rosa v. Cantrell, 705 F.2d 1208, 1211 (10th Cir. 1982) (applying Wyoming law).
In light of Walker, the application of Rule 4(m) in a diversity action is
determined by the following considerations:
When a federal court is sitting in diversity jurisdiction, the
effect of Rule 4[(m) 3] will depend upon the method the forum state
uses to toll the statute of limitations. If the forum state has adopted a
regime modeled after the federal rules, the statute of limitations
likely will be tolled by the filing of the complaint . . . .
3
Rule 4 was substantially revised and reorganized in 1993. See Fed. R.
Civ. P. 4 advisory committee’s note (1993 Amendments). Much of the language
previously contained in subdivision (j) was retained and moved to subdivision
(m). See id.
-4-
In many states, however, the service of the summons and
complaint, and not the filing of the complaint with the court, tolls the
limitations period. The federal courts hearing diversity actions in
these states must apply the state tolling procedures as a result of the
Supreme Court decision in Walker v. Armco Steel Corp.
4A Charles Alan Wright & Arthur R. Miller, F EDERAL P RACTICE & P ROCEDURE §
1137, at 396 (2d ed. 1987) (footnote omitted). As the court recognized in Eades
v. Clark Distrib. Co., 70 F.3d 441, 443 (6th Cir. 1995), a plaintiff in federal court
thus has 120 days to effect service after filing a complaint only if this period
enables him to serve within the statutory period for commencing an action
controlled by state law. See also 4A Wright & Miller, supra, §1137, at 396 (“If
the litigant fails to serve process within 120 days of filing or if the litigant fails to
serve before the expiration of the applicable state statute of limitations, then the
action may be dismissed.”).
Under Wyoming Rule 3(b), the date of service of the complaint is deemed
to commence the action for statute of limitation purposes if the complaint is not
served within 60 days. In this case, the Habermehls served the complaint 107
days after filing it. Because of the failure to serve within sixty days, the action is
deemed to have commenced on the date of service, which was 106 days beyond
the statute of limitations period. The Habermehls alleged no facts which would
-5-
cause the statute of limitations to be tolled under Wyoming law, 4 and the action is
therefore barred.
We AFFIRM the district court’s order granting summary judgment in favor
of Mr. Potter and dismissing the case with prejudice.
4
Mr. Potter has resided at the same address – the address at which he was
ultimately served – for approximately twenty-seven years. Mr. Habermehl’s
counsel phoned the sheriff’s office in Mr. Potter’s county of residence on the date
the complaint was filed and obtained that very address. Finally, Mr. Habermehl’s
attorney had sent a letter to Mr. Potter’s Michigan address (absent the street
number) in 1993, which Mr. Potter received. According to the Wyoming Supreme
Court, if a plaintiff has knowledge of the non-resident’s location and that person
is subject to the state’s jurisdiction under its long-arm statute, the statute of
limitations is not tolled under W YO . S TAT . § 1-3-116. See Stanbury v. Larsen,
803 P.2d 349, 351 (Wyo. 1990).
-6-