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., Cheyenne, 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.
1After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument. 

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Charles and Frances Habermehl brought this diversity tort suit in Wyoming

against Michael Potter, a resident of Michigan. The district court granted Mr.

Potter’s motion for summary judgment, ruling that the action had not been

commenced within the applicable statute of limitation. The Habermehls appeal

and we affirm.1

On October 14, 1992, Mr. Habermehl was injured while on a hunting trip

near Rawlins, Wyoming, when Mr. Potter allegedly lost his balance and fell on

him. The Habermehls filed the complaint in this diversity 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 WYO. STAT.

ANN. § 1-3-105(a)(iv)(C) (Michie 1997). Mr. Potter was not served with the

summons and complaint until January 30, 1997. The district court granted

summary judgment in favor of Mr. Potter on the ground that the action was not

timely under Rule 3(b) of the Wyoming Rules of Civil 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 filing of the complaint. See Wyo.
2Rule 4(m) provides:

If service of the summons and complaint is not made

upon a defendant within 120 days after the filing of the

complaint, the court, upon motion or on its own

initiative after notice to the plaintiff, shall dismiss the

action without prejudice as to that defendant or direct

that service be effected within a specified time; provided

that if the plaintiff shows good cause for the failure, the

court shall extend the time for service for an appropriate

period.

Fed. R. Civ. P. 4(m).

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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 de 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 judgment is appropriate if the

evidence before the court, when viewed in the light most 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 that
3Rule 4 was substantially revised and reorganized in 1993. See Fed. R.

Civ. P. 4 advisory committee’s note (1993 Amendments). Much of the language

previously contained in subdivision (j) was retained and moved to subdivision

(m). See id.

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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 serve the defendant whereas

Wyoming Rule 3(b) requires service within sixty days in order to maintain the

date of filing as the date of commencement of the action for statute of limitations

purposes. We are not persuaded there is a direct conflict 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 accordingly actual notice by, the

defendant is an integral part of the several policies served by the statute of

limitations.” Walker, 446 U.S. at 751 (applying Oklahoma law). See also 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 Wyoming law).

In light of Walker, the application of Rule 4(m) in a diversity action is

determined by the following considerations:

When a federal court is sitting in diversity jurisdiction, the

effect of Rule 4[(m)3

] will depend upon the method the forum state

uses to toll the statute of limitations. If the forum state has adopted a

regime modeled after the federal rules, the statute of limitations

likely will be tolled by the filing of the complaint . . . .
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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 diversity actions in

these states must apply the state tolling procedures as a result of the

Supreme Court decision in Walker v. Armco Steel Corp.

4A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE §

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 for 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 purposes if the complaint is not 

served within 60 days. In this case, the Habermehls served the complaint 107

days after filing it. Because of the failure to serve within sixty days, the action is

deemed to have commenced on the date of service, which was 106 days beyond

the statute of limitations period. The Habermehls alleged no facts which would
4Mr. Potter has resided at the same address – the address 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 address. Finally, Mr. Habermehl’s

attorney had sent a letter to Mr. Potter’s Michigan address (absent the street

number) in 1993, which Mr. Potter received. According to the Wyoming Supreme

Court, if a plaintiff has knowledge of the non-resident’s location and that person

is subject to the state’s jurisdiction under its long-arm statute, the statute of

limitations is not tolled under WYO. STAT. § 1-3-116. See Stanbury v. Larsen,

803 P.2d 349, 351 (Wyo. 1990). 

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cause the statute of limitations to be tolled under Wyoming law,4

 and the action is

therefore barred.

We AFFIRM the district court’s order granting summary judgment in favor

of Mr. Potter and dismissing the case with prejudice.