Young v. Klusken et al, No. 4:2011cv04056 - Document 34 (D.S.D. 2012)
Court Description: MEMORANDUM OPINION AND ORDER granting re 14 MOTION for Judgment on the Pleadings, 17 MOTION for Judgment on the Pleadings. Signed by U. S. District Judge Lawrence L. Piersol on 3/30/12. (CMS)
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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION FILED MAR 302012 *************************************************************~~***** ALEXANDER C. YOUNG, an individual, Plaintiff, vs. RONALD KLUSKEN, an individual; NATIONAL OUTDOORS LEADERSHIP SCHOOL, an entity ofunknown fonnation; and DOES 1 to 50, inclusive, Defendants. * * * * * * * * * * * * * * * CIV 11-4056 MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR JUDGMENT ON THE PLEADINGS ****************************************************************************** Pending before the Court is Defendant National Outdoor Leadership School's Motion for Judgment on the Pleadings (Doc. 14), and Defendant Ronald Klusken's Motion for Judgment on the pleadings (Doc. 17). The Court heard argument on these motions and for the reasons set forth below is granting both motions. THE PLEADINGS AND DOCUMENTS ON RECORD Plaintiff Young alleges in his Complaint that he is a resident of California, that Defendant Ronald Klusken is a resident ofWisconsin, and that Defendant National Outdoor Leadership School (NOLS) is an entity with its principal place ofbusiness in Wyoming. In 2008 Plaintiff Young was on an NOLS-endorsed and supervised rock climbing activity in Custer County, South Dakota, near the Needles Climbing Area. PlaintiffY oung alleges Defendant Klusken fired a loaded shotgun within 100 yards ofthe NOLS campsite, striking Plaintifl'several times. Plaintiff Young alleges that Defendant Klusken caused injuries to Plaintiff which required in-hospital treatment and resulted in pennanent facial scarring and emotional distress. Defendants contend in their answers, and Plaintiffdoes not dispute, that the shooting occurred on April 25, 2008. The complaint in this action, which is based on three negligence theories, was filed on April 25, 2011. Doc. 1. On that same day, the clerk's office issued summonses to Young for Klusken and NOLS. Doc. 4, 5. The Certification of Personal Service regarding Defendant Ronald Klusken sets forth that the Summons and Complaint were received by the deputy sheriff on July 5, 2011, and were served on Klusken in Wisconsin on July 7,2011. The ProofofService regarding the summons for NOLS sets forth that the summons was not delivered to a deputy until July 13, 2011, and was not served on NOLS in Wyoming until July 14, 2011. Doc. 11. DISCUSSION Defendants NOLS and Klusken have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12( c), contending that Young's complaint is barred by the three-year statute oflimitation found at S.D.C.L. § 15-2-14(3). In considering a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), the court "accept[s] as true all facts pleaded by the non-moving party and grant [s] all reasonable inferences from the pleadings in favor ofthe non-moving party." United States v. Any and All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000). A motion for judgment on the pleadings will be granted where no material issue offact remains to be resolved and the movant is entitled to judgment as a matter oflaw. Syverson v. FirePond, Inc., 383 F.3d 745, 748 (8th Cir. 2004); Faibisch v. University ofMinnesota, 304 F.3d 797, 803 (8th Cir. 2002). Since this is a diversity action with the claims based upon state law, it is governed by state substantive law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). Since statutes oflirnitations are substantive laws, in diversity actions they are controlled by state law. See Paracelsus Healthcare Corp. v. Philips Med. Sys., 384 F.3d 492,495 (8th Cir. 2004); Hillary v. Trans World Airlines, Inc., 123 F.3d 1041,1043 (8th Cir. 1997). The parties agree that South Dakota's statute oflimitations applies. See Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945) ("[E]ven before Erie R. Co. v. Tompkins, federal courts relied on statutes oflimitations ofthe States in which they sat."). In Walker v. Armco Steel Corp., 446 U.S. 740 (1980), the Supreme Court held that Federal Rule of Civil Procedure 3, which provides that an action is commenced by filing a complaint, does not operate to extend a state's statute oflimitations in a diversity action. The Walker case involved an Oklahoma commencement ofaction statute, which provided that if a complaint is filed within the limitations period an action is deemed to have commenced from the date of the filing if the plaintiff served the defendant within 60 days, even 2 though that service may occur outside the limitations period. 446 U.S. at 743. Since the plaintiff in Walker filed his complaint in federal district court before the running ofthe statute oflimitations, but did not effectuate service within the 60-day extension period, the action was time barred. The Supreme Court held that "state service requirements which are an integral part ofthe state statute of limitations should contro I in an action based on state law which is filed in federal co urt under diversity jurisdiction." 446 U.S. at 752-753. The Eighth Circuit has held that Walker v. Armco Steel Corp., 446 U.S. 740 (1980), requires that if a state rule requires service of a summons to commence an action, the state rule and not Fed. R. Civ. P. 3, which requires filing to commence an action, applies for purposes of determining compliance with the statute oflimitations. Walker v. Thielen Motors, Inc., 916 F.2d 450, 451 (8th Cir. 1990) (Minnesota rule requiring service of summons to commence an action, not Fed. R. Civ. P. 3, governs time action was deemed commenced for purposes of statute oflimitations.); Fischer v. Iowa Mold Tooling Co., Inc., 690 F.2d 155, 157 (8th Cir.1982) (Diversity action for state law negligence claim in South Dakota had to be dismissed as untimely when service was not had on defendant within three-year state statutory period.) South Dakota law requires service of the summons, not filing ofthe complaint, in order to commence an action. See S.D.C.L. § 15-2-30 (an action is commenced as to each defendant when the summons is served on him or on a codefendant united in interest with the defendant). S.D.C.L. § 15-2-31 provides for a sixty-day extension period to the commencement of an action contemplated in S.D.C.L. § 15-2-30. S.D.C.L. § 15-2-31 provides: An attempt to commence an action is deemed equivalent to the commencement thereofwhen the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer ofthe county in which the defendants or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer ofthe county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days. In order for the extension period to apply, the summons must be placed in the hands ofthe sheriff or other county officer within the period ofthe statute oflimitations. Fischer v. Iowa Mold Tooling Co., Inc., 690 F.2d at156 (citing Arbach v. Gruba, 86 S.D. 591,199 N.W.2d 697 (1972». Plaintiff Young, however, relies upon Federal Rule of Civil Procedure 4(e) in support ofhis 3 position that the action is not time-barred, pointing out that the law of the state in which Defendant Klusken was served provides for commencement of an action by filing a summons and complaint in court and allows a ninety-day extension to effectuate service of the summons on the defendant. Federal Rule of Civil Procedure 4(e) provides in relevant part: Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]" A problem with that argument is that Rule 4(e) deals with methods of service, not time of service. Fed. R. Civ. P. 4(m)deals with time limits for service. Plaintiff Young 1 then cites to Wisconsin Rules of Civil Procedure 801.02 regarding time for service ofprocess which provides that a civil action is commenced ''when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy ofthe summons and ofthe complaint is made upon the defendant under this chapter within 90 days after filing." Klusken was served within 90 days of the filing of the complaint in this action. Federal Rule of Civil Procedure 4, however, will not be utilized to extend South Dakota's statute of limitations. "Rule 4 deals only with process. Rule 3 concerns the 'commencement' of a civil action." Schiavone v. Fortune, 477 U.S. 21, 30 (1986) (Supreme Court declines to temper Rule 15(c) by "engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint"). This Court follows the reasoning set forth in Poulos v. Wilson, 116 F.R.D. 326 (D. Vt. 1987), a diversity case in which the state rule provided that an action was commenced by filing the summons and complaint, but required the summons and complaint to be served upon the defendant within 30 days after the filing of the complaint. Service in the Poulos case was effectuated 31 days after filing the summons and complaint. The district court in Poulos rejected the plaintiffs argument that since Fed. R. Civ. P. IThe Leadership School was served in Wyoming on July 14, 2011,80 days after the action was filed. Even if the Wyoming commencement of action statute, W.R.C.P. 31, was applicable, that statute requires service within 60 days after filing for commencement. The Court determined at the time ofthe hearing on the motion for judgment on the pleadings that this action was time barred with regard to Defendant National Outdoor Leadership SchooL 4 4(j) (now substantially in Rule 4(m)) allows a plaintiff 120 days to serve a defendant after the filing ofa complaint, Rule 4(j) should control over the Vermont rule. In rejecting this argument, the district court in Poulos reasoned: In Walker, the Supreme Court clearly ruled that federal Rule 3, concerning commencement of actions, was never intended to displace state tolling rules for purposes ofstate statutes oflimitations, 446 U.S. at 750-51, 100 S.Ct. at 1985-86. We therefore are unwilling to find that federal Rule 4(j), dealing with service of process, displaces state rules that describe the steps needed to commence an action so as to toll the state limitations period. 116 F.3d at 330. See also Morse v. Elmira Country Club, 752 F.2d 35, 42 (2d Cir. 1984) (court rejects argument that Fed. R. Civ. P. 4(j) adds 120 days to the applicable state statute oflimitations, and states that "the legislative history of the amendments shows that Congress recognized the implications of Walker when it considered the amendments to Rule 4( c)"); Robinette v. Johnston, 637 F.Supp. 922, 924 (M.D. Ga. 1986) ("[T]here is no reason why an action based on state law which would be barred in the state courts should proceed through litigation to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants."). But see Tillman v. Georgia, 466 F.Supp.2d 1311, 1322 (S.D.Ga. 2006) ("This Order may be said to tinker with the scope of rights created by the State of Georgia by extending the life of those rights. Any extension, however, is not given by this Court in an unguided Erie choice; it was given by Congress in enacting the Federal Civil Procedure Amendments Act of 1982, providing an 'irreducible allowance' of 120 days for serving process in federal court."). Plaintiff also argues that substantial compliance with South Dakota's statute has occurred and equitable tolling should apply because the statute was followed sufficiently so as to carry out the intent for which it was adopted and the purpose ofthe statute has been served. Generally, the courts require strict compliance with a statute oflirnitations to preserve a claimant's right to bring an action. Anson v. Star Brite Inn Motel, 788 N.W.2d 822,825 (S.D. 2010) (citing Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund, 689 N.W.2d 196, 201 (S.D. 2004). "'[T]he purpose of a statute of limitations is speedy and fair adjudication of the respective rights of the parties. ,,, Peterson v. Hohm, 607N.W.2d 8,12 (S.D. 2000) (quotingStateofMinn. ex rei. Hove v. Doese, 501 N .W.2d 366, 370 (S.D. 1993)). A statute oflimitations allows potential defendants "to be 'freed from the consequences oftheir actions after a statutory period oftime resulting in peace ofrnind for 5 the individual, less docket congestion, fewer administrative problems for the courts, and less work for law enforcement agencies. Stale claims are eliminated. '" Id. The harsh effect of a statute oflimitations can be judicially modified in limited circumstances through the application of the doctrine of equitable tolling. Dakota Truck Underwriters v. South Dakota Subsequent Injury Fund, 689 N.W.2d at 201-02. The doctrine of equitable tolling permits a plaintiff to bring a suit after the expiration of the statute of limitations when inequitable circumstances had prevented the plaintiff from timely commencing the action. Dakota Truck Underwriters, 689 N.W.2d at 202 (citing Bailey v. Glover, 88 U.S. 342 (1874)). However, the application ofthe doctrine of equitable tolling requires the existence of circumstances ''truly beyond the control of the plaintiff" Dakota Truck Underwriters, 689 N.W.2d at 202 (citing Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir.1989)). See also Anson v. Star Brite Inn Motel, 788 N.W.2d 822 (S.D. 2010). In addition, no basis has been shown for the application of equitable estoppel. Plaintiffin this case has not presented circumstances that would allow for anything other than strict compliance with the statute 0 flimitations. The Court's sympathy for the plaintiff for the injuries alleged is no basis for equitable tolling. Nothing has been shown or suggested that would have prevented earlier filing and service. The doctrine of equitable tolling is not applicable in this case. Since this action was not commenced against either defendant as required by South Dakota law within the applicable statute oflimitations, IT IS ORDERED that the motions for judgment on the pleadings (Doc. 14, 17) are granted. Dated this 30th day of March, 2012. BY THE COURT: ~'IJw.l~~ r:: ATTEST: JOSEPH HAAS, CLERK wrence L. Pierso 1 United States District Judge BY:~~ DEPUTY 6
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