file proof of service within time limits set forth in § 306-b(a) is automatic and later issued trial court order purporting to effectuate the dismissal was superfluous). Then, under subsection (b), plaintiffs would have had an additional 120 days from the date of the automatic dismissal within which to initiate another action and serve Bell in order to preserve their claims in state court.
Bell contends that such an analysis is required here. It claims that since plaintiffs failed to refile their complaint within 240 days of filing the original complaint, they have failed to meet the requirements of § 306-b and therefore the claims are time-barred. In essence, Bell claims that although there is no "automatic" dismissal provision in federal procedure, nonetheless, this Court should analyze the limitations issue as if there were such an automatic dismissal procedure. Under this interpretation, plaintiff has only 240 days from the original date of filing within which to refile the complaint in order to be protected under the saving provisions of § 306-b.
I am not persuaded by this argument. I believe that plaintiffs' complaint here is "saved" by § 306-b because it was filed within 120 days after this Court's dismissal of the first complaint. To hold otherwise would defeat the purpose of the state saving statutes under these circumstances. Under Bell's logic, many plaintiffs could be prevented from obtaining the benefit of the state's saving statutes in diversity actions if it happened that the district court delayed dismissing the first action for a period in excess of 240 days after the initial filing. To interpret § 306-b in this fashion, in this diversity, action would work a grave injustice on plaintiffs.
There is clearly a conflict between federal procedure and state procedure as to how an action is dismissed for failure to serve the initial complaint. State procedure provides for an "automatic" dismissal after 120 days have elapsed from the initial filing. But, no such dismissal is contemplated by federal procedure. The federal procedure rule at issue, Rule 4(m), requires a motion, or an action by the court, on notice to plaintiff of the application for a dismissal. The dismissal, if granted, is only effective upon the entry of such an order by the court. That procedure is precisely what occurred in the instant case.
In my view, federal not state law should control concerning the effective date of dismissal of the first complaint. In the instant case, while it is clear that section 306-b provides the substantive law regarding service and the tolling of the state statute of limitations, see West, 481 .U.S. at 39 n.4; Diffley, 921 F.2d at 424, it seems equally clear that Rule 4 governs the procedural requirements for service in federal court. See Morse v. Elmira Country Club, 752 F.2d 35, 38 (2d Cir. 1984) (in a diversity case, running of statute of limitations was governed by New York law requiring service, but federal rules specified method of effecting service). In addition to regulating the method and timing of service of process, Rule 4, under subsection (m), provides the procedure for extending the time for service. See Argentina v. Emery World Wide Delivery Corp., 167 F.R.D. 359, 1996 U.S. Dist. LEXIS 8394, 1996 WL 327993 (E.D.N.Y. 1996) (section 306-b, the state service statute, governs tolling of the statute of limitations, but Rule 4(m) governs the procedure for extending the time for service). More importantly, for purposes of this case, Rule 4(m) provides the mechanism for accomplishing the dismissal of the action for failure to timely serve. See Rule 4(m) (where service untimely, action may be dismissed on motion by defendant or upon notice by court).
Rule 4(m) does not purport to change the method for tolling the statute of limitations, nor does it define when an action is commenced. Rule 4(m) simply provides a time-limit for service, a method for extending the service period, and a mechanism for dismissal if service is found to be untimely. Because it affects only the process of enforcing substantive rights and does not alter the underlying law, Rule 4(m) is inherently procedural in nature. Accordingly, both constitutional and statutory concerns are satisfied, and Rule 4(m) is controlling. See Morse, 752 F.2d at 38; Argentina, 167 F.R.D. 359, 1996 U.S. Dist. LEXIS 8394, 1996 WL at *3.
In sum, this Court concludes that Rule 4(m) provides the sole procedure for accomplishing a dismissal for failure to timely serve the complaint. The original complaint in this case was dismissed pursuant to Rule 4(m) on September 8, 1995. Since Plaintiffs refiled their action in this Court (and in state court) on November 13, 1995, well-within the 120 period afforded by section 306-b(b), their actions were timely filed for purposes of the statute of limitations.
II. Marsh's Derivative Claims
A. Choice of Law
In determining the viability of plaintiff Susan Marsh's ("Marsh") negligent infliction of emotional distress and loss of consortium claims, the first issue this Court must address is the choice of law. Marsh contends the law of the state in which she is domiciled, New Jersey, should apply. Bell argues in favor of the law of the site of the accident, New York. A choice of law analysis is necessary here because the viability of Marsh's state law claims turns on which state's law is controlling. As more fully discussed infra, Marsh's loss of consortium claim is barred under both New York and New Jersey law because she and plaintiff Smith are not married. See Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 451, 634 N.Y.S.2d 18, 657 N.E.2d 1301 (1995); Lesocovich v. Madison Ave. Corp., 165 A.D.2d 963, 561 N.Y.S.2d 851 (3rd Dep't 1990); app. denied, 77 N.Y.2d 804, 568 N.Y.S.2d 912, 571 N.E.2d 82 (1991); Leonardis v. Morton Chem. Co., 184 N.J. Super. 10, 445 A.2d 45 (App. Div. 1982). Her claim for negligent infliction of emotional distress is barred under New York law because she was not in the "zone of danger." See Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984). However, it may be viable under New Jersey law since New Jersey has abandoned the more restrictive "zone of danger" test. See Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). Accordingly, this Court must determine which law is applicable here.
It is well-settled that in a diversity action, the district court is bound by the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). The seminal case in this area is Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), in which the New York Court of Appeals set forth general rules to be employed in choice-of-law analyses. See Barkanic v. General Admin. of Civil Aviation of the People's Republic of China, 923 F.2d 957, 963 (2d Cir. 1991) (Neumeier analysis applicable "to all post-accident loss distribution rules . . .") (original emphasis).
Under Neumeier, this Court must "consider the following three elements: the domicile of the plaintiff; the domicile of the defendant; and the place of the accident. When more than one of these is located in the same state, that state's law should ordinarily control." Datskow v. Teledyne Continental Motors Aircraft Products, 807 F. Supp. 941, 943 (W.D.N.Y. 1992).
When, as in the instant case, the parties are each domiciled in different states and the accident occurred in yet a third state, "the rule is necessarily less categorical." Neumeier, 31 N.Y.2d at 128.