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HART v. BATES

September 7, 1995

PALMINA HART and JAMES HART, Plaintiffs, against RAYMOND J. BATES, JR. and OYSTER BAY TIRE COMPANY, Defendants.


The opinion of the court was delivered by: FREDERICK BLOCK

 BLOCK, District Judge:

 Defendant Raymond J. Bates, Jr. ("Bates") moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) seeking dismissal of plaintiffs' complaint on statute-of-limitations grounds. *fn1" The Court has converted the motion to one for summary judgment under Fed. R. Civ. P. 56. *fn2" Resolution of this motion centers on the interaction in diversity cases of federal and state laws governing the ascertainment and tolling of the applicable statute of limitations. For the reasons set forth below, the motion is denied.

 I.

 BACKGROUND

 As alleged in the complaint, on April 14, 1991 plaintiff Palmina Hart ("Hart"), a Pennsylvania resident, while walking alongside a roadway in Pennsylvania, was struck by an automobile owned by Bates, a New York resident, and operated by his son. On March 30, 1993, almost two years later, Hart initiated this diversity action against the defendants for injuries she allegedly suffered as a result of this accident by filing her complaint with the Clerk of the Court pursuant to Fed. R. Civ. P. 3. Her husband, co-plaintiff James Hart, joined in her lawsuit for loss of consortium. The gravamen of the complaint against Bates is that he negligently entrusted his automobile, which allegedly had faulty brakes, to his son. *fn3"

 Personal service was effected upon Bates on July 13, 1993, 105 days from the date the complaint was filed; well within the 120-day time requirement under Fed. R. Civ. P. 4(m) for service of process and the three-year statute of limitations under New York State law. See N.Y. Civ. Prac. L. & R. 214(5) (Consol. 1990). Under Pennsylvania law, however, personal injury actions based upon negligence must be commenced within two years, 42 Pa. Cons. Stat. Ann. § 5524(2), and under its civil rules of procedure an action is commenced by filing with the prothonotary either a complaint or a praecipe for a writ of summons. Pa. R. Civ. P. 1007. *fn4" Subject to certain qualifications, Pennsylvania's civil procedure rules further provide that once an action has been commenced, a plaintiff has 90 days thereafter to effect service of process upon an out-of-state defendant, such as Bates. Pa. R. Civ. P. 404.

 Bates contends that plaintiffs' action is time-barred under Pennsylvania's two-year statute of limitations because service of process was made 105 days after the complaint was filed, and two years and 89 days after the accident occurred.

 II.

 DISCUSSION

 A. The Applicable Statute of Limitations

 In diversity actions a district court must apply the statute of limitations that the state in which it sits would apply. Guaranty Trust Co. v. York, 326 U.S. 99, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945). In so holding in York, the Supreme Court, applying the principles underlying Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), reasoned that a statute of limitations does not concern "merely the manner and the means by which a right to recover, as recognized by the State, is enforced," but "significantly affect[s] the result of a litigation . . . that would be controlling in an action upon the same claim by the same parties in a State court." 326 U.S. at 109. Hence, "as to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow State law." Id. at 110.

 Normally, "New York will apply its own statute of limitations even though the injury which gave rise to the action occurs in another state." Stafford v. International Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981). However, "New York's limitations of actions laws are supplemented by a borrowing statute [N.Y. Civ. Prac. L & R. 202] which provides that an action cannot be maintained [by a non-resident] if it is barred by the statute of limitations of the state where the cause of action accrued." Stafford, 668 F.2d at 147-48 (quotation omitted). See also Ceres Partners v. Gel Assocs., 918 F.2d 349, 353 (2d Cir. 1990) ("In order to determine what statute of limitations New York would apply, a district court sitting in New York must consider the borrowing rules found in [N.Y. Civ. Prac. L & R 202].") *fn5"

 While the literal reading of section 202 would preclude plaintiffs from availing themselves of New York's three-year statute of limitations because the cause of action accrued in Pennsylvania, there is recent decisional law from the Appellate Division of the Supreme Court of New York holding that the borrowing statute is inapplicable if the defendant is not amenable to suit in the other state. See Rescildo by Rescildo v. R.H. Macy's, 187 A.D.2d 112, 115, 594 N.Y.S.2d 139, 140-41 (1st Dep't 1993). Although New York's highest court has yet to address this issue, the Second Circuit in Stafford opined, prior to Rescildo, that since "the main purpose of the borrowing statute is to prevent forum shopping by plaintiffs, . . . the New York Court of Appeals would decide that a cause of action cannot accrue for purposes of New York's borrowing statute in a state which could not exercise jurisdiction over the cause of action." Stafford, 668 F.2d at 152-53. Rescildo reinforces the efficacy of this opinion. Therefore, it is clear here, as it was in Stafford, that "the policies underlying New York's borrowing statute are not served in any way by applying the limitations period of Pennsylvania to bar a cause of action which never could have been brought in Pennsylvania." Id. at 152.

 Thus, the Court must determine whether plaintiffs could have obtained in personam jurisdiction over Bates in Pennsylvania, which turns on the application of that state's long-arm statute, 42 Pa. Cons. ...


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