UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009
July 29, 2010
ALEXANDRA GERENA, CONSTANCE GERENA, PLAINTIFFS-APPELLANTS,
GREGORY KORB, YALE UNIVERSITY, DEFENDANTS-APPELLEES.
Appeal from a judgment of the United States District Court for the District of Connecticut (Eginton, J.) entered on May 15, 2009, dismissing for failure to timely effect service and untimeliness of the claims under Connecticut law.
The opinion of the court was delivered by: Trager, J.
Gerena v. Korb
(Argued February 9, 2010)
Before: POOLER and LIVINGSTON, Circuit Judges, and TRAGER, District Judge.*fn1
The judgment of the district court is affirmed in part, reversed in part, and remanded.
Alexandra Gerena ("Alexandra") and her mother Constance Gerena (collectively, "the 3 Gerenas" or "appellants") appeal from the judgment of the United States District Court for the 4 District of Connecticut (Eginton, J.) dismissing their case under Federal Rule of Civil Procedure 5 4(m) for failure to timely serve defendants Yale University ("Yale") and Gregory Korb ("Korb"), 6 and additionally finding the Gerenas' claims untimely under Connecticut law. For the reasons 7 explained below, we affirm the district court's dismissal of the suit against Yale for failure to 8 timely serve. However, we disagree with the district court's conclusion that the Gerenas' time to 9 serve Korb was never extended. With respect to the district court's second ground for dismissal 10 of the claims against Korb - untimeliness under Connecticut's statute of limitations - there is a 11 preliminary choice of law issue that was not explored in the opinion below.
We therefore 12 remand for a determination of whether personal jurisdiction over Korb existed in New York, 13 such that New York choice of law should have governed the Gerenas' claims against Korb.
(1) Underlying Events and Commencement of the Action
The Gerenas commenced this action in New York Supreme Court, Bronx County, on 19 April 24, 2007. They are seeking damages arising out of an incident that occurred in August 20 2005, at the beginning of Alexandra and Korb's sophomore year of college at Yale.
According 21 to the complaint filed by Alexandra and her mother, Korb sexually and physically assaulted 22 Alexandra in her dorm room after a Yale-sponsored back-to-school social event. Defendant Yale 1 allegedly did little to prevent this assault or other similar assaults and did not punish offenders 2 adequately. As a result, Alexandra and her mother are asserting claims of intentional conduct 3 against Korb and negligence, willful misconduct and recklessness against Yale. 4 The Gerenas claim that shortly after their state complaint was filed, but before service, 5 Yale sent one of its employees to obtain a copy of the state court summons and complaint; Yale 6 disputes whether this occurred and the significance of it. In any event, on May 22, 2007, Yale 7 removed the action to the Southern District of New York on diversity grounds, where it was 8 assigned to Judge Sand. At that point, neither Yale nor Korb had been served with the complaint 9 in the state action, although both obviously were aware of the action, given that Yale had 10 effectuated removal with Korb's consent. The 120-day federal time limit for service of process 11 therefore began to run on May 22, 2007 and expired on September 19, 2007. See Fed. R. Civ. P. 12 4(m).
(2) Service on the Defendants
a. Service on Yale
One month after this 120-day time period expired, on October 29, 2007, plaintiffs served 18 Yale with a state court summons, which Yale believed was insufficient since the case had been 19 removed to federal court. Soon after, Yale moved for dismissal on the ground of improper 20 service, or alternately, for transfer to Connecticut under 28 U.S.C. § 1404 (a). About eight 21 months later, on August 1, 2008, plaintiffs finally served Yale with a federal court summons.
A few weeks after this, on August 26, 2008, Judge Sand granted Yale's motion to transfer to the 2 District of Connecticut.
b. Service on Korb
In their brief, the Gerenas explain that they had a difficult time serving Korb. According 6 to appellants, Korb began studying overseas in the spring of 2007. Korb was originally 7 scheduled to return to the United States at the end of May 2007, but appellants were advised that 8 month by Korb's probation officer that he was remaining overseas. Although appellants 9 apparently attempted to serve Korb through his parents several times during the summer of 2007, 10 and enlisted the Essex County Sheriff to aid in these attempts, Korb's parents repeatedly refused 11 service. The record includes an affidavit of service from an Essex County Sheriff stating: 12 "[U]nable to serve, spoke with the deft's father who refused to accept the papers. The 13 undersigned instructed the father to have his son contact the undersigned. Deft. avoiding service. 14 Undersigned made over 3 attempts."
In December 2007, counsel for Korb filed a motion to dismiss plaintiff's complaint for, 16 inter alia, lack of personal jurisdiction and failure to serve process. On December 13, 2007, 17 however, Judge Sand adjourned both Korb's and Yale's motions to dismiss in order to give 18 plaintiffs an opportunity to properly effect service.
Failed attempts at service on Korb continued throughout the spring of 2008. In summer 20 2008, plaintiffs made an ex parte motion to Judge Sand to appoint a United States marshal to 21 serve Korb. Judge Sand held a teleconference with the parties shortly thereafter.*fn2 During this conference, after noting that Korb seemed to be playing a cat-and-mouse game with plaintiffs 2 regarding service, Judge Sand declined to grant Korb's motion to dismiss for lack of personal 3 jurisdiction, explaining that he would not do so "under circumstances which deprived the 4 plaintiffs' counsel of questioning [whether New York personal jurisdiction might exist], for 5 example . . . letting [the Gerenas' attorney] depose Mr. Korb about the extent of his contacts in 6 New York."
Judge Sand granted plaintiffs' ex parte motion for service by marshal on July 8, 2008, 8 stating that "good cause has been shown in support of the application that the defendant Korb has 9 made himself unavailable for service by other means." A Connecticut state marshal finally 10 effected service on Korb on October 1, 2008, after the case had been transferred to Connecticut.
United States marshals also served Korb in November 2008.
(3) Decision Below
This case came before Judge Eginton of the District of Connecticut in August 2008. In 16 October 2008, Korb renewed his motion to dismiss for untimely service and expiration of the 17 statute of limitations. Yale made motions on the same grounds the following month. Judge 18 Eginton granted both defendants' motions on May 15, 2009. He first found that service on both 19 defendants was untimely, as neither was served within 120 days and no extensions of time for 20 service were requested or granted. Applying Connecticut law, he further found that the Gerenas' 21 claims against both defendants were barred by the relevant statutes of limitations.
Standard of Review
We review a district court's dismissal for failure to timely serve process under Fed. R. 3 Civ. P. 4(m) for abuse of discretion. Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 4 2007); see also Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (adopting abuse of 5 discretion standard of review for Rule 4(m) dismissals). "A district court has abused its 6 discretion if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly 7 erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within 8 the range of permissible decisions." Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) 9 (internal quotation marks omitted). A district court's choice of law and its application of a statute 10 of limitations are reviewed de novo as questions of law. See Abdullahi v. Pfizer, Inc., 562 F.3d 11 163, 190 (2d Cir. 2009); Somoza v. New York City Dep't of Educ., 538 F.3d 106, 112 (2d Cir. 12 2008).
(1) Dismissal for Failure to Timely Serve
We begin with the district court's decision to dismiss the Gerenas' claims against Yale 18 and Korb for failure to effect timely service under Federal Rule of Civil Procedure 4(m). Rule 19 4(m) provides:
If a defendant is not served within 120 days after the complaint is 21 filed, the court - on motion or on its own after notice to the plaintiff 22 - must dismiss the action without prejudice against that defendant or 23 order that service be made within a specified time. But if the plaintiff 24 shows good cause for the failure, the court must extend the time for 25 service for an appropriate period.
We have interpreted this rule to give wide latitude to courts in deciding when to grant extensions 2 on time to serve, including permitting courts to grant extensions even absent good cause. See 3 Zapata, 502 F.3d at 196. Because we find here that the district court was within the bounds of 4 its discretion in determining that the Gerenas had neither sought nor received an extension of 5 time to serve Yale, we affirm its dismissal of the case against Yale under Rule 4(m). However, 6 for the reasons explained below, it was an abuse of discretion to find that plaintiffs' time to serve 7 Korb had not been extended by Judge Sand prior to transfer.
a. Dismissal under Rule 4(m) against Yale was proper
The district court did not abuse its discretion in determining that service on Yale was 11 untimely. Although the Gerenas' case was removed to federal court on May 22, 2007, they did 12 not serve Yale until October 29, 2007, and at that point served only a state court summons. It 13 was not until August 1, 2008 that plaintiffs served Yale with a federal summons.
Appellants primarily argue that Yale had notice of this lawsuit before it was removed to 15 federal court, as evidenced by the fact that Yale had someone pick up a copy of the complaint 16 from the Bronx County Clerk. However, the simple fact that Yale obtained a copy of the state 17 court complaint against it is insufficient for service to be deemed effective under New York law.
See Macchia v. Russo, 67 N.Y.2d 592, 594 (1986) ("In a challenge to service of process, the fact 19 that a defendant has received prompt notice of the action is of no moment. Notice by means 20 other than those authorized by statute does not bring a defendant within the jurisdiction of the 21 court." (internal citations omitted)). The Gerenas' additional arguments that Yale waived any 22 jurisdictional objections by removing the action from state to federal court, or by commencing 1 discovery, are similarly unavailing. Yale promptly and repeatedly raised the defense of defective 2 service. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60-63 (2d Cir. 1999); Cantor 3 Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996).
A stronger argument for appellants is that their delivery to Yale of a state court summons 5 might have adequately effected service as of October 29, 2007. There is a clear split of authority 6 on whether or not service of a state court summons, after removal to federal court, is sufficient to 7 effect service. See Minter v. Showcase Sys., Inc., 641 F. Supp. 2d 597 (S.D. Miss. 2009) 8 (collecting cases on both sides - though none from courts in the Second Circuit - and ultimately 9 determining that the view that federal service could be completed by delivery of the state court 10 summons after removal was correct). We need not resolve this question here, however, because 11 even if the state court summons were deemed sufficient, it too was served outside of the 120-day 12 period prescribed for service. See Fed. R. Civ. P. 4(m). Moreover, as Judge Eginton noted, 13 there is no indication that the Gerenas sought an extension of the time to serve Yale from Judge 14 Sand or that Judge Sand ever granted such an extension.
There are some indications in the record that Judge Sand intended to be permissive with 16 the Gerenas in their service of Yale. In particular, the record contains a letter from Yale 17 University to Judge Sand acknowledging that "on December 13, 2007, the Court adjourned 18 defendants' motions to afford plaintiffs an opportunity to properly effect service," suggesting that 19 Judge Sand may have intended to allow untimely service. However, this does not amount to a 20 conclusive extension of time to serve, such that we could say that Judge Eginton abused his 21 discretion in deeming the Gerenas' service of Yale untimely. We are particularly deferential to 22 Judge Eginton's conclusion given that appellants still have advanced no argument as to why they 1 could not timely serve Yale. Cf. Zapata, 502 F.3d at 196 (when good cause is not shown, 2 whether or not to grant an extension is a discretionary determination).
3 Because the district court acted within the bounds of its discretion in determining that 4 service on Yale was untimely and that the Gerenas had never been granted an extension of time 5 to serve, its decision to dismiss the suit against Yale is affirmed on this ground.
b. Failure to timely serve Korb was excused for good cause
The Gerenas' efforts to serve Korb stand in contrast to their lack of effort to serve Yale. 9 Given the record before this court and the facts as they stood before the district court, we cannot 10 agree with its conclusion that the Gerenas' service on Korb was also defective as untimely. 11 In his May 2009 opinion, Judge Eginton explained that service on Korb was defective 12 because Korb was untimely served and "there is no indication that plaintiffs sought an extension 13 of time to perfect service or that Korb did evade service upon his return to the United States." 14 This statement, however, is not supported by the record. To the contrary, the record indicates 15 that plaintiffs sought an extension of time to perfect service on Korb, and that Judge Sand 16 granted it.
Specifically, Judge Sand's July 2008 order directing service by United States marshals on 18 Korb operated as an extension of time to serve for good cause. During a June 2008 telephone 19 conference, Judge Sand said the following to Korb's counsel about defendant Korb's avoidance 20 of service:
[T]here have been efforts to serve Mr. Korb at his parents' home [and] 22 . . . to invoke the Sheriff's Office . . . . I don't think I can, on the 23 papers before me, conclude that plaintiffs' counsel has taken such 24 ineffective means to effect service that on that ground, . . . his motion 25 [for service by marshal] should be denied . . . . [Y]our letter which 1 points out that Mr. Korb has been within the jurisdiction on a number 2 of occasions and has not been served is a little bit . . . like the little 3 child sticking out his or her tongue and saying, "Nah, nah, you can't 4 catch me." Mr. Korb has been fully aware . . . that the plaintiff is 5 seeking to serve him . . .
Shortly thereafter, on July 8, 2008, Judge Sand granted plaintiffs' ex parte Motion Appointing 8 Marshal to Serve Defendant Korb, noting that "good cause has been shown in support of the 9 application that the defendant Korb has made himself unavailable for service by other means . . . 10 ."
11 Korb argues that service was nevertheless untimely because although Judge Sand's order 12 may have included a finding that good cause had been shown for service by marshal, "this does 13 not equate to a good cause finding that the Rule 4(m) service time should be extended." Brief of 14 Def.-Appellee Gregory Korb at 10. This argument, however, is implausible. It makes no sense 15 that Judge Sand would order service by marshal almost a year after service originally should 16 have been accomplished while not also intending to extend the time to serve. A decision to 17 allow service by marshal at this point in the litigation implicitly included a decision to allow late 18 service.
19 Moreover, the "good cause" language used in Judge Sand's order likely references Rule 20 4(m), regarding timeliness of service, not Rule 4(c)(3), permitting service by marshal. Rule 21 4(c)(3) does not use the phrase "good cause," but rather simply provides: "At the plaintiff's 22 request, the court may order that service be made by a United States marshal or deputy marshal 23 or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3). In contrast, Rule 4(m) 24 specifically states that "if the plaintiff shows good cause for the failure [to serve], the court must 25 extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m).
Accordingly, Judge 1 Sand's order stating that "good cause" had been shown is best read as a finding that the plaintiffs' 2 failed attempts at service warranted an extension of time to serve, as well as a grant of 3 permission to use the alternative method of service by marshal. And once this good cause 4 finding was made, an extension of time to serve was mandatory, not discretionary. See Fed. R. 5 Civ. P. 4(m); see also Blessinger v. United States, 174 F.R.D. 29, 31 (E.D.N.Y. 1997) ("If the 6 plaintiff has shown good cause, the extension is mandatory.").
We note that Judge Sand's extension on time to serve did not specify a time by which 8 service was to be completed, despite Rule 4(m)'s instruction that extensions on time to serve 9 should be made "for an appropriate period." It would have avoided an unnecessary issue had the 10 time been specified. In this case, the appropriate period by which to extend time to serve likely 11 would have been the time it took the marshals to serve. However, no argument has been raised 12 that Judge Sand abused his discretion by not setting an "appropriate period" for service.
13 Accordingly, we need not consider at this point the necessity of a district court explicitly 14 defining an "appropriate period" when extending time to serve. Cf. In re Wireless Data, Inc., 547 15 F.3d 484, 491-92 (2d Cir. 2008) (finding argument not raised on appeal to be waived). 16 Based on the record in this case prior to transfer, we conclude that the district court 17 clearly erred in finding that no extension of time to serve had previously been sought by 18 plaintiffs; one had been sought and had been granted by Judge Sand, along with an order for 19 United States marshals to effect service. We thus reverse the district court's determination that 20 Korb was not timely served.
(2) Dismissal under the Statute of Limitations
The district court provided a second ground upon which it dismissed the claims against both 4 Korb and Yale: the untimeliness of the Gerenas' claims under the applicable Connecticut statutes 5 of limitations. The district court reached this result by applying Connecticut choice of law, and 6 thus Connecticut's limitations period, without discussion. But there was a preliminary choice of 7 law issue here that the district court failed to acknowledge.
8 Federal courts sitting in diversity generally apply the law of the state in which they sit. 9 However, cases that are transferred from one federal district to another present an exception to 10 this general rule. When an action has been transferred, a federal court sitting in diversity must 11 determine whether to apply the law of the transferor state, or the law of the transferee state in 12 which it sits. If a district court receives a case pursuant to a transfer under 28 U.S.C. § 1406(a), 13 for improper venue, or 28 U.S.C. § 1631, for want of jurisdiction, it logically applies the law of 14 the state in which it sits, since the original venue, with its governing laws, was never a proper 15 option. See Schaeffer v. Village of Ossining, 58 F.3d 48, 50 (2d Cir. 1995) (transferee laws 16 apply after transfer under § 1406(a)); Levy v. Pyramid Co. of Ithaca, 871 F.2d 9, 10 (2d Cir. 17 1989) (transferee laws apply after transfer for lack of personal jurisdiction). In contrast, when a 18 case is transferred for convenience under 28 U.S.C. § 1404(a), the law of the transferor state is to 19 be applied so long as the transferor state could properly have exercised jurisdiction. See Van 20 Dusen v. Barrack, 376 U.S. 612, 635-39 (1964); Fin. One Public Co. Ltd. v. Lehman Bros. 21 Special Fin., Inc., 414 F.3d 325, 333-34 (2d Cir. 2005); SongByrd, Inc. v. Estate of Grossman, 22 206 F.3d 172, 179-80 (2d Cir. 2000) ("[I]n a transferred action the law of the transferor 1 jurisdiction applies . . . only if the transferor court has personal jurisdiction." (internal citation 2 omitted)).
In the instant case, the district court failed to consider that New York choice of law might 4 apply, since Judge Sand appears to have granted Yale's motion to transfer the case to 5 Connecticut under 28 U.S.C. § 1404(a), for convenience. Yale specified that its motion was not 6 being made for lack of personal jurisdiction, but rather "for the convenience of parties and 7 witnesses, in the interest of justice." To be sure, Judge Sand's brief handwritten order did not 8 specify which provision he was transferring under, but simply stated: "The motion to transfer the 9 case to the District of Connecticut is granted in the interest of justice."*fn3 However, given that the 10 motion being granted requested transfer under § 1404(a), it seems reasonably clear that Judge 11 Sand intended to transfer the action for convenience's sake without ever making a finding 12 regarding personal jurisdiction. Therefore, New York law, as the governing law of the transferor 13 court, should still have been applied by the District of Connecticut, as long as jurisdiction in New 14 York would have been proper. Cf. SongByrd, Inc., 206 F.3d at 179-80.
15 Of course, if jurisdiction was not proper in New York, then the district court correctly 16 applied Connecticut choice of law and Connecticut procedure. With respect to Yale, the issue 17 need not be further explored, given that we are affirming the district court's opinion on the 18 alternate ground that Yale was not timely served. However, with respect to Korb, whom we now 1 deem properly served, it must be determined whether personal jurisdiction over Korb existed in 2 New York, such that New York choice of law should have governed the claims against him.
This is not a determination we are equipped to make in the first instance. Although Korb 4 vigorously disputed whether personal jurisdiction over him could be obtained in New York, the 5 district court made no finding in this regard. Judge Sand, before he transferred, expressed the 6 opinion that dismissal on jurisdictional grounds would have been inappropriate absent an inquiry 7 into the extent of Korb's contacts in New York. Korb himself admits that he was employed in 8 New York for approximately nine months in 2006. Moreover, in plaintiffs' ex parte motion to 9 Judge Sand to appoint a United States marshal to serve Korb, they explain that in March 2008, 10 Korb's probation officer communicated to the Gerenas that Korb was in Europe and "planning to 11 attend NYU." Given that Korb clearly had some contacts with New York, we must ask the 12 district court to consider more thoroughly whether Korb might have been subject to personal 13 jurisdiction in New York, such that New York choice of law principles should govern the action 14 against him.
If the district court determines on remand that Connecticut law properly governs, we agree 16 with its conclusion that the Gerenas' claims are barred under Connecticut law by the three-year 17 limitations period contained in Conn. Gen. Stat. § 52-577. Although appellants urge that Conn. 18 Gen. Stat. § 52-590, which allows for tolling when a defendant is absent from the state, should 19 save their claims, this provision applies only when "by reason of the defendant's absence, it was 20 impossible to commence an action in personam against the defendant." Venables v. Bell, 941 F. 21 Supp. 26, 27 (D. Conn. 1996) (quoting Dorus v. Lyon, 92 Conn. 55, 57, 101 A. 490 (1917)); see 22 also Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 392-93, 949 A.2d 450, 457-58 1 (2008). Because Connecticut's long-arm statute authorizes personal jurisdiction over 2 nonresidents who commit tortious acts within the state, Conn. Gen. Stat. § 52-590 is 3 inapplicable. See Conn. Gen. Stat. § 52-59b(a). Under section 52-59b, the Gerenas could have 4 served Korb at any point by serving the secretary of state and mailing a copy of the process to 5 the defendant's last known address. See Conn. Gen. Stat. § 52-59b(c). Furthermore, the 6 possibility that equitable tolling might apply here is foreclosed by Connecticut precedent, which 7 establishes Conn. Gen. Stat. § 52-577 as a statute of repose not susceptible to equitable tolling. 8 See Carter v. Univ. of Conn., 04-cv-1625, 2006 WL 2130730, at *3 (D. Conn. July 28, 2006), 9 aff'd, 264 Fed. App'x. 111, 232 Ed. Law Rep. 104 (2d Cir. 2008).
10 On the other hand, if it is determined that New York law should govern, the outcome of 11 the inquiry into the timeliness of the Gerenas' claims might be different. We leave it to the 12 district court to determine in the first instance, if necessary, how New York law should be 13 applied to the facts of this case. However, because we find the analysis a difficult one, we offer 14 a few thoughts on how a New York choice of law analysis might proceed. Whereas Connecticut 15 law would almost certainly govern the substantive aspects of this case under New York choice of 16 law, New York still adheres to the traditional substantive/procedural dichotomy in its choice of 17 law analysis and generally classifies statutes of limitations as procedural, except for those 18 limitations periods which it designates as statutes of repose. See Tanges v. Heidelberg N. Am., 19 Inc., 93 N.Y.2d 48, 58-59, 710 N.E.2d 250, 254-55, 687 N.Y.S.2d 604, 608-09 (1999); Stuart v. 20 Am. Cyanamid Co., 158 F.3d 622, 626-27 (2d Cir. 1998) ("New York courts generally apply 21 New York's statutes of limitations, even when the injury giving rise to the action occurred 22 outside New York.").
New York's statute of limitations would thus probably govern the Gerena's claims under New 2 York choice of law. Although Connecticut has categorized Conn. Gen. Stat. § 52-577's three- 3 year limitations period as a statute of repose, we doubt that New York courts, under the 4 framework laid out by the New York Court of Appeals in Tanges, would agree for purposes of 5 New York choice of law. Cf. Tanges, 93 N.Y.2d at 93 (finding Connecticut's own classification 6 only instructive, not binding). First, the structure and legislative history of section 52-577 do not 7 suggest that its limitations period was intended to create a right, rather than merely "erect a 8 limitation around the existing common-law causes." Tanges, 93 N.Y.2d at 56-57; see also 9 Sanborn v. Greenwald, 39 Conn. App. 289, 304-05, 664 A.2d 803, 811-12 (Conn. App. 1995) 10 (finding that section 52-577 did not restrict a cause of action "but, rather, only establishe[d] the 11 time period in which a plaintiff must assert this right"). Furthermore, there is no compelling 12 policy rationale for New York to interpret section 52-577, which merely sets forth a general torts 13 limitations period, as a statute of repose. Unlike in the products liability context addressed in 14 Tanges, where there is justifiable reliance by manufacturers and their insurers on the inability of 15 plaintiffs to bring suit after a certain period of time, there is no analogous justifiable reliance by 16 general tortfeasors. Moreover, New York's policy of always giving its residents the benefit of 17 New York's own statute of limitations, see N.Y. C.P.L.R. § 202, would be undercut - in all those 18 cases in which a resident was injured in the adjacent state of Connecticut - if New York were to 19 treat Connecticut's general three-year limit for all general tort actions as a statute of repose.
20 Accordingly, it seems likely that New York would look to its own laws, rather than to Conn. 21 Gen. Stat. § 52-577, to determine the timeliness of this action.
Under New York law, an action is "commenced" upon filing, not upon service on the 2 defendant. See N.Y. C.P.L.R. § 304; Gershel v. Porr, 89 N.Y.2d 327, 330-31, 675 N.E.2d 836, 3 838, 653 N.Y.S.2d 82, 84 (1996). Therefore, under New York's commencement rule, the 4 Gerenas' claims were commenced April 24, 2007. And because New York provides that a 5 plaintiff shall have one year from the termination of any criminal proceedings against a 6 defendant to commence a related civil action, see N.Y. C.P.L.R. § 215(8)(a), it appears that the 7 Gerenas' claims, which were brought within one year of Korb's no-contest plea for related 8 misdemeanor offenses on October 30, 2006, were timely under New York law.
For the foregoing reasons, the opinion of the district court is affirmed in part and reversed in 12 part, and the case is REMANDED for a determination of whether personal jurisdiction over 13 Korb existed in New York, and for further proceedings consistent with this opinion.