The opinion of the court was delivered by: BONSAL
On June 29, 1965, plaintiff, a citizen of Idaho, commenced this diversity action against defendant, a New York corporation, for negligence and breach of warranty. The complaint alleges that on July 1, 1962 plaintiff was injured when shells and ammunition sold and distributed by defendant exploded in his face while he was using them for the purposes for which they were intended.
Defendant moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment dismissing the complaint on the ground that the action is barred by the applicable statute of limitations. Plaintiff cross-moves, pursuant to Rule 12(f), F.R.Civ.P., for an order striking defendant's two affirmative defenses based on the statute of limitations. Defendant's motion is granted and plaintiff's cross motion is denied.
It appears that defendant has its place of business in New York and sells and distributes guns and ammunition throughout the United States. Distribution in Idaho was made by mail orders which were solicited by advertising placed by the defendant in magazines of national circulation. The shells and ammunition in suit were ordered by mail by Norton, a resident of Idaho, in response to an advertisement placed by the defendant in the "American Rifleman", were shipped by defendant to Norton f.o.b. New York, and sold by Norton to the plaintiff.
The New York statute of limitations is three years for actions based on negligence (C.P.L.R. § 214), and six years for actions based on breach of warranty (C.P.L.R. § 213). Idaho has a two-year statute of limitations for actions "to recover damages for an injury to the person" (Idaho Code, § 5-219(4)), and since this is an action to recover for personal injuries, it is conceded that it applies to both negligence and breach of warranty.
The New York borrowing statute (C.P.L.R. § 202) provides:
"An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, * * *."
One policy behind the borrowing statute is to afford New York "resident-defendants the benefit of the shortest applicable period of limitation * * *" Lowell Wiper Supply Co. v. Helen Shop, Inc., 235 F. Supp. 640, 644 (S.D.N.Y.1964).
Idaho's long arm statute (Idaho Code, § 5-514) provides that a corporation submits itself to the jurisdiction of the courts of Idaho as to any cause of action arising out of
(a) the transaction of any business within this state which is hereby defined as the doing of any act for the purpose of realizing pecuniary benefit or accomplishing or attempting to accomplish * * * the business purpose or objective * * * of such * * * corporation;
(b) the commission of a tortious act within this state.
In advertising its products in magazines of national circulation, which led to the sale here involved, defendant was doing an act for the purpose of realizing pecuniary benefit or accomplishing or attempting to accomplish its business purposes in the State of Idaho, which was sufficient to subject defendant to jurisdiction in Idaho under subdivision (a) of Section 5-514 of the Idaho Code.
In B.B.P. Association, Inc. v. Cessna Aircraft Co., Idaho, 420 P.2d 134 (1966), the Supreme ...