The opinion of the court was delivered by: MCLEAN
The second count in the complaint in this action, jurisdiction of which is based on diversity of citizenship, seeks recovery for the wrongful death of plaintiff's testatrix allegedly caused by the negligence of defendant hospital and of the individual defendants, who are physicians. The answer of defendant Edsall sets up an affirmative defense of the two-year statute of limitations applicable to wrongful death actions under Section 130 of the New York Decedent Estate Law, McKinney's Consol.Laws, c. 13.
Defendant Edsall moves for judgment on the pleadings. He supports his motion with an affidavit of his attorney. Under Rule 12(c) the court may treat this motion as one for summary judgment. The affidavit contains no facts. However, the relevant facts, which are undisputed, can be ascertained from documents already on file in this court. They are as follows.
According to the complaint, W. Eloise Hendriksen died on June 4, 1964. The two years thus expired on June 4, 1966. Plaintiff filed her complaint in this court on January 13, 1966, within the statutory period. The summons and complaint were not served upon defendant Edsall, however, until September 30, 1966, almost four months after the statute had run.
The documents in the file reveal the following: The clerk issued a summons on January 13, 1966. It bore the name of an attorney representing plaintiff. Attached to it are directions to the marshal for service. This presumably was issued by the attorney, although it is unsigned. It directs the marshal to serve the summons on Roosevelt Hospital. The marshal did so on January 14, 1966. The directions for service do not refer to defendant Edsall.
Apparently thereafter plaintiff ceased to be represented by an attorney and decided to handle the action herself. On August 9, 1966, the clerk issued an "additional summons" which referred to Leah K. Hendriksen as attorney pro se. On August 11, 1966 plaintiff, describing herself as "attorney for plaintiff pro se," wrote to the clerk enclosing copies of the summons and complaint "to be served on defendant John R. Edsall, whose address is 439 East 87th Street, New York, N.Y." This is the first request, as far as appears from the file, for service of any process upon defendant Edsall.
The marshal's return attached to this additional summons states that after diligent search on August 17, 22 and 23, he was unable to find defendant. The return says, "No one at premises which is a private home not seen recently by neighbors."
Apparently nothing further was done until late September 1966. On September 23, 1966 the clerk issued another "additional summons" which also described the attorney for the plaintiff as "Leah K. Hendriksen attorney pro se." At about this time plaintiff, as attorney pro se, sent a memorandum to the marshal requesting him to serve the summons and complaint on defendant Edsall at 16 East 90th Street, New York. The marshal's return states that he received the summons and complaint on September 27, 1966 and that he served it on defendant Edsall at 16 East 90th Street, New York, N.Y. on September 30, 1966.
I turn now to the legal problem. Rule 3 of the Fed.R.Civ.P. provides:
"A civil action is commenced by filing a complaint with the court."
Section 203(b) of the New York CPLR provides:
"A claim asserted in the complaint is interposed against the defendant * * * when:
1. the summons is served upon the ...