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.
(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
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.
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 ...