## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 24 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES HABERMEHL and FRANCES HABERMEHL, Plaintiffs-Appellants,

v. MICHAEL POTTER, Defendant-Appellee, No. 97-8065

Appeal from the United States District Court for the District of Wyoming (D.C. No. 96-CV-267)

Submitted on the Briefs: Mark E. Macy of Bayless, Slater & Macy, P.C., Cheye nne, Wyoming, for Plaintiffs-Appellants. Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming, for DefendantAppellee.

Before SEYMOUR , Chief Judge, BRISCOE and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. -2- Charles and Frances Habermehl brought this diversity tort suit in Wyoming against Michael Potter, a resident of Michigan. Th e district court granted Mr. Potter’s motion for summary judgment, ruling that the action had not been commenced within the applicable statute of limitati on. The Habermehls appeal and we affirm. 1 On October 14, 1992, Mr. Habermehl was injured whil e on a hunting trip near Rawlins, Wyoming, when Mr. Potter allegedly lo st his balance and fell on him. The Habermehls filed the complaint in this di versity action in the federal district court in Wyoming on October 15, 1996, the last day for timely filing under the statute of limitations governing Wyoming tort actions. See W YO
. S TAT
. ANN . § 1-3-105(a)(iv)(C) (Michie 1997). Mr. Potter wa s not served with the summons and complaint until January 30, 1997. The district court granted summary judgment in favor of Mr. Potter on the grou nd that the action was not timely under Rule 3(b) of the Wyoming Rules of Civi l Procedure, which deems the date of service to be the date of commencement of the action when a defendant is not served within sixty days of the fi ling of the complaint. See Wyo.2 Rule 4(m) provides: If service of the summons and complaint is not made upon a defendant within 120 days after the filing o f the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dis miss the action without prejudice as to that defendant or di rect that service be effected within a specified time; p rovided that if the plaintiff shows good cause for the fail ure, the court shall extend the time for service for an appr opriate period. Fed. R. Civ. P. 4(m). -3- R. Civ. P. 3(b). The Habermehls contend on appeal that the district court should have tolled the statute of limitations for 120 days under Rule 4(m) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4(m). 2 We review the grant or denial of summary judgment d e novo, applying the same standards as the district court. See Lowe v. Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1173 (10th Cir. 1996). Summary judgmentis appropriate if the evidence before the court, when viewed in the lightmost favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Seymore v. Shawver & Sons, Inc. , 111 F.3d 794, 797 (10th Cir. 1997). In Walker v. Armco Steel Corp. , 446 U.S. 740 (1980), the Supreme Court held that unless there is a direct conflict between a federal rule and state law, the state law applies in diversity actions. Id . at 752. The Habermehls contend that3 Rule 4 was substantially revised and reorganized in1993. See Fed. R.

Civ. P. 4 advisory committee’s note (1993 Amendment s). Much of the language previously contained in subdivision (j) was retaine d and moved to subdivision (m). See id

. -4- Rule 4(m) directly conflicts with Wyoming Rule 3(b) in that Rule 4(m) gives a plaintiff 120 days after filing the complaint to se rve the defendant whereas Wyoming Rule 3(b) requires service within sixty day s in order to maintain the date of filing as the date of commencement of the a ction for statute of limitations purposes. We are not persuaded there is a direct c onflict between the two rules. Federal Rule 4(m) merely sets a procedural maximum time frame for serving a complaint, whereas Wyoming Rule 3(b) “is a statement of a substantive decision by that State that actual service on, and according ly actual notice by, the defendant is an integral part of the several polici es served by the statute of limitations.” Walker , 446 U.S. at 751 (applying Oklahoma law). See als o Jenkins v. City of Topeka , 136 F.3d 1274, 1275 (10th Cir. 1998) (applying Kansas law); Rosa v. Cantrell , 705 F.2d 1208, 1211 (10th Cir. 1982) (applying Wy oming law). In light of Walker , the application of Rule 4(m) in a diversity actio n is determined by the following considerations:

When a federal court is sitting in diversity jurisd iction, the effect of Rule 4[(m) 3 ] will depend upon the method the forum state uses to toll the statute of limitations. If the fo rum state has adopted a regime modeled after the federal rules, the statute of limitations likely will be tolled by the filing of the complain t . . . .-5- In many states, however, the service of the summons and complaint, and not the filing of the complaint with the court, tolls the limitations period. The federal courts hearing div ersity actions in these states must apply the state tolling procedure s as a result of the Supreme Court decision in Walker v. Armco Steel Corp. 4A Charles Alan Wright & Arthur R. Miller, F EDERAL P RACTICE & P ROCEDURE § 1137, at 396 (2d ed. 1987) (footnote omitted). As the court recognized in Eades v. Clark Distrib. Co. , 70 F.3d 441, 443 (6th Cir. 1995), a plaintiff in federal court thus has 120 days to effect service after filing a complaint only if this period enables him to serve within the statutory period fo r commencing an action controlled by state law. See also 4A Wright & Miller, supra , §1137, at 396 (“If the litigant fails to serve process within 120 days of filing or if the litigant fails to serve before the expiration of the applicable state statute of limitations, then the action may be dismissed.”). Under Wyoming Rule 3(b), the date of service of the complaint is deemed to commence the action for statute of limitation pu rposes if the complaint is not served within 60 days. In this case, the Habermehl s served the complaint 107 days after filing it. Because of the failure to se rve within sixty days, the action is deemed to have commenced on the date of service, wh ich was 106 days beyond the statute of limitations period. The Habermehls alleged no facts which would4 Mr. Potter has resided at the same address – the ad dress at which he was

ultimately served – for approximately twenty-seven years. Mr. Habermehl’s counsel phoned the sheriff’s office in Mr. Potter’s county of residence on the date the complaint was filed and obtained that very addr ess. Finally, Mr. Habermehl’s attorney had sent a letter to Mr. Potter’s Michiganaddress (absent the street number) in 1993, which Mr. Potter received. Accord ing to the Wyoming Supreme Court, if a plaintiff has knowledge of the non-resi dent’s location and that person is subject to the state’s jurisdiction under its lo ng-arm statute, the statute of limitations is not tolled under W YO
. S TAT . § 1-3-116. See Stanbury v. Larsen , 803 P.2d 349, 351 (Wyo. 1990). -6- cause the statute of limitations to be tolled underWyoming law, 4 and the action is therefore barred.
We AFFIRM the district court’s order granting summary judgme nt in favor of Mr. Potter and dismissing the case with prejudic e.