Walking the Legal Tightrope: Serving Timely Process When Filing State Claims in Federal Court
| Publication year | 2004 |
| Pages | 28-35 |
73 J. Kan. Bar Assn. 9, 28-35 (2004). Walking the Legal Tightrope: Serving Timely Process When Filing State Claims in Federal Court
73 J. Kan. Bar Assn. 9, 28-35 (2004)
Introduction
Imagine that a plaintiff's attorney files a diversity action in Kansas federal court. He serves the defendant on day 95 after filing the complaint, erroneously assuming that he has 120 days under the federal rules to complete service. The defendant files an answer to the complaint, asserting numerous standard defenses, including insufficient service of process and untimeliness under the statute of limitations. The plaintiff ignores the defenses because they are general, stock defenses, and because he knows that the last day for timely commencing the action has not even passed yet. The statute of limitations then runs on the plaintiff's claim. Immediately thereafter, the defendant files a motion to dismiss, arguing that the plaintiff's action is time-barred because the case was never commenced. The court grants the defendant's motion, and the plaintiff is left holding a stale claim without a forum.
Is the above result harsh? Perhaps. Realistic? Again, perhaps. At least, the odds and stakes are high enough that practitioners should avoid placing themselves in the situation.
For an attorney filing a state claim under a federal court's supplemental or diversity jurisdiction, serving a defendant with process may at first glance appear to be a routine task. But the legal ramifications for failing to obtain valid service are severe, as shown in the example above. In addition to depriving a court of personal jurisdiction over a defendant,(fn1) deficient service of process can result in dismissal under the applicable statute of limitations.(fn2) To avoid this outcome, federal litigators must become familiar with both the state statutes and federal rules for service of process and commencement of actions. Otherwise, a defendant may prevail without having to argue the merits of the case, forcing the client to locate an attorney with the ability to file a timely malpractice action.(fn3)
The scope of this article is narrow; it does not delve into the myriad procedural intricacies of properly serving process. Rather, the article will examine the interplay between service of process and the statute of limitations, and discuss some of the pitfalls associated with filing a lawsuit in Kansas federal court that contains both federal and state claims. It will also identify four defenses to resist a motion to dismiss for insufficient service. Kansas law does not trace federal law regarding service of process and commencement of actions in several key instances. Understanding those differences and the ways Kansas state and federal courts have interpreted the relevant statutes and doctrines in this area can help a lawyer initiate a lawsuit before the statute of limitations expires.
The Opening Act: Commencement
A legal action's date of commencement becomes crucial when the defendant challenges whether the case is barred by the statute of limitations. When a plaintiff files a case with state claims in Kansas federal court, two different dates of commencement are possible: the date the plaintiff files the complaint, or the date the plaintiff serves process on the defendant.(fn4) If the filing date falls within the statute of limitations, but the date of service does not, then the practitioner must ensure that the date of commencement is the date of filing. To do this, an understanding of the state and federal commencement statutes and rules is necessary.
In Kansas federal court, state law governs the commencement date of a state claim.(fn5) The federal rules generally govern the commencement date of a federal claim.(fn6) This is true even if the federal claim is based on law which borrows a state statute of limitations;(fn7) a federal court borrows only what is necessary from state law.(fn8)
The Kansas Legislature has chosen to emphasize the importance of timely service by statutorily recognizing that an action commences only when the plaintiff completes valid service on the defendant.(fn9) K.S.A. 60-203 provides that the date of commencement is retroactive to the date of filing if the plaintiff obtains timely service on the defendant, but that it becomes the date of service if service is untimely.(fn10)
In contrast to K.S.A. 60-203, Rule 3 of the Federal Rules of Civil Procedure provides simply that "[a] civil action is commenced by filing a complaint with the court." Commencement of a federal action is not dependent on service. Indeed, if the plaintiff fails to effect service on the defendant within the time limits provided by Federal Rule 4(m), the suit may be subject to dismissal, but even if dismissed, the commencement date remains the same.(fn11)
Notably, application of the Kansas savings statute, K.S.A. 60-518, requires commencement. K.S.A. 60-518 may apply to state claims and federal claims borrowing state statutes of limitations.(fn12) The statute allows a plaintiff six months after a case's nonmerit-based dismissal to refile the case and still use the
original commencement date.(fn13) But if the plaintiff fails to properly "commence" the original case, whether it be under state or federal provisions, K.S.A. 60-518 will not save the case.(fn14) The lesson? Perfect service in the first case before dismissing and refiling pursuant to K.S.A. 60-518.
The Fine Line: Time Limits for Effecting Service
Another key difference between the Kansas service statutes and the federal service rules lies in the amount of time a plaintiff has to effect service.(fn15) Under K.S.A. 60-203(a), a plaintiff has 90 days to serve the defendant if the desired date of commencement is the federal complaint's file-stamped date.(fn16) In contrast, the federal rules permit 120 days to effect service.(fn17) Moreover, as will be explained in the next section of this article, courts liberally grant an extension of time under the federal rules.
While K.S.A. 60-203(a)(1) also provides that the court may grant a 30-day extension of time, the plaintiff must file a motion and the court must grant the extension within the original 90-day time period.(fn18) The extension need not be filed of record before 90 days expires, but the court must have at least granted the extension orally.(fn19) Courts have enforced this requirement even though the timing of the order is under the court's control, not the plaintiff's.(fn20)
A court will only grant a 30-day extension for good cause shown.(fn21) There is little guidance on what constitutes good cause, but courts have evaluated a plaintiff's attempts at service under former Fed. R. Civ. P. 4(j) standards and the factors for setting aside a default judgment.(fn22) At a minimum, it appears that the plaintiff must have exercised reasonable diligence in locating the defendant.(fn23)
Plaintiffs may use state or federal methods of service when filing claims in federal court.(fn24) But even if a practitioner chooses to utilize the federal waiver provisions,(fn25) the plaintiff is still held to Kansas service time limits for state law claims; absent a valid extension by the court, a waiver of service completed after 90 days will not preserve the filing date as the commencement date of the action.(fn26) Instead, the commencement date becomes the date of service.(fn27) If that date is after the statute of limitations runs on the plaintiff's claim, the claim may be time-barred.
As a practical matter, the difference between the Kansas and federal time limits for service means that a plaintiff who files a federal question case with supplemental state law claims may be subject to two different deadlines for service. The Kansas 90-day limit will apply to the state law claims, and the federal 120-day limit will apply to the federal claims.(fn28) Accordingly, the following hypothetical situation may arise:
A plaintiff files a federal question case in federal court on the last day before the statute of limitations expires. The complaint includes both federal and state law claims. The plaintiff fails to effect service until day 110, believing that the law allows 120 days and that a motion for extension of time beyond 90 days is unnecessary. The defendant then moves to dismiss the case as time-barred. A likely outcome is that the court will dismiss the state law claims for failure to commence the action within the statute of limitations - the state law claims did not commence until service, 110 days after the statute ran. But the federal claims will remain viable, as service was completed within 120 days. The commencement date for the federal claims was the date of filing.
To avoid this outcome, a practitioner should remain wary of the Kansas time limits for service when filing cases which include state law claims in the district of Kansas.(fn29) The complaint must be served within 90 days or counsel should apply for a 30-day extension with ample time for the court to rule on the motion within 90 days.
A Second Chance: Time Extensions
Equally important to observance of service deadlines is compliance with state- and federal-sanctioned methods of service.(fn30) Absent a Rule 4(d) waiver of service(fn31) or a filed entry of appearance by the defendant under K.S.A. 60-203(c),(fn32) valid service of process is required to "commence" a lawsuit for statute of limitation purposes. However, if a plaintiff "purports" to make service within the K.S.A. 60-203(a) time limit, but a federal court rules that service is defective after the statute of limitations has expired, the state claim is not necessarily doomed.
Kansas law provides a statutory savings provision to afford a plaintiff a second chance at...
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