1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 09-2594-cv Gere na v. Korb UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009

(Argued February 9, 2010) (Decided July 29, 2010)

Docket No. 09-2594-cv

--------------------------------------------------------------- -----------x ALEXANDRA GERENA, CONSTANCE GERENA, Plaintiffs-Appellants , 17 18 19 20 21 22 - against - GREGORY KORB, YALE UNIVERSITY, Defendants-Appellees

. 23 24 25 26 ------------------------------------ ----------------- --------------- ------x B e f o r e: POOLER and LIVINGSTON, Circuit Judges , 27 and TRAGER, District Judge

. * 28 29 30 31 32 33 34 35 Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Eginton, J.) entere d on May 15, 2009, dism issing for failu re to timely effect service and untimeliness of the claims under Connecticut law. The judgment of the district court is affirm ed in part, reversed in part, and rem anded.

* The Honorable David G. Trager of the United States District Court for th e Eastern District of New York, sitting by designation.2 1

2 3 DAVID L. RABIN, Esq., Mount Kisco, NY, for Plaintiffs-Appellants 4 5 6 7 ROSEMARIE PAINE, Esq., New Haven, Connecticut, for Defendant-Appellee Gregory Korb 8 9 10 11 12 PATRICK M NOONAN, Esq., COLLEEN NOONAN DAVIS, Esq., Guilford, CT, for Defendant-Appellee Yale University 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Trager, J. Alexandra Gerena ("Alexandra") and her moth er Constance Gerena (collectively, "the Gerenas" or "appellants") appeal from the judgment of the Un ited States District Court for the District of Connecticut (Eginton, J.) dism issing their case under Fe deral Rule of Civil Procedure 4(m) for failure to timely serve defendants Yale University ( "Yale") and Gregory Korb ("Korb"), and additionally finding the Gerenas' claims unt im ely under Connecticut law. For the reasons explained below, we affirm the district court's dis missal of the suit against Yale for failure to timely serve. However, we disagree with the dist ric t court's conclusion that the Gerenas' time to serve Korb was never extended. With respect to the district court' s second ground for dismissal of the claims against Korb – un tim eliness under Connecticut's statut e of limitations – there is a preliminary choice of law issue that was not e xplored in the opinion below. W e therefore remand for a determination of whether personal jurisdiction over Korb existed in New York, such that New York choice of law should have g overned the Gerenas' claims against Korb.

Background (1) Underlying Events and Commencement of the Action The Gerenas commenced this action in New York Suprem e Court, Bronx County, on April 24, 2007. They are seeking damages arising out of an incident that occurred in August 2005, at the beginning of Alexandra and Korb's sopho m ore year of college at Yale. According to the complaint filed by Alexandra and her moth er, Korb sexually and physically assaulted Alexandra in her dorm room after a Yale-sponsored back-to-school social event. Def endant Yale4 1 2 3 4 5 6 7 8 9 10 allegedly did little to prevent th is assault or other sim ilar assa ults and did not punish offenders adequately. As a result, Alexandra and her moth er are asserting claim s of intentional conduct against Korb and negligence, willful misc onduct and recklessness against Yale. The Gerenas claim that shortly after their st ate co mplaint was filed, but before service, Yale sent one of its employees to obtain a copy of the state court summ ons and complaint; Yale disputes whether this occurred and the significance of it. In any event, on May 22, 2007, Yale removed the action to the Southern District of New York on diversity grounds, where it was assigned to Judge Sand. At that point, neither Ya le nor Korb had been served with the com plaint in the state action, although both obviously were aware of the action, given that Yale had effectuated removal with Korb's consent. The 120-day federal tim e limit for service of process therefore began to run on May 22, 2007 and expired on September 19, 2007. See Fed. R. Civ. P. 4(m). 11 12 13 14 15 16 17 18 19 20 21 (2) Service on the Defendants a. Service on Yale One month after this 120-day time period expired, on October 29, 2007, plaintiffs served Yale with a state court summons, which Yale be lieved was insufficient since the case had been removed to federal court. Soon after, Yale m oved for dismissal on the ground of improper service, or alternately, for tr ansfer to Connecticut under 28 U.S.C. § 1404(a). About eight months later, on August 1, 2008, plaintiffs finally served Yale with a federal court summons. A5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 few weeks after this, on August 26, 2008, Judge Sand granted Yale' s motion to transfer to the District of Connecticut.

b. Service on Korb In their brief, the Gerenas explain that th ey had a difficult time se rving Korb. According to appellants, Korb began studying overseas in the spring of 2007. Korb was originally scheduled to return to the United States at th e end of May 2007, but appellants were advised that month by Korb's probation officer that he wa s rem aining overseas. Although appellants apparently attempted to serve Korb through his parents several tim es dur ing the summer of 2007, and enlisted the Essex County Sheriff to aid in th ese attem pts, Korb's parents repeatedly refused service. The record includes an affidavit of service from an Essex County Sheriff stating: "[U]nable to serve, spoke with the deft's father who refused to accept the papers. The undersigned instructed the father to have his son contact the undersi gned. Deft. avoiding service. Undersigned made over 3 attempts." In December 2007, counsel for Korb filed a motion to dismiss plaintiff's complaint for, inter alia, lack of personal jurisdiction and failure to serve p rocess. On December 13, 2007, however, Judge Sand adjourned both Korb' s and Yale's motions to dismiss in order to give plaintiffs an opportunity to pr operly effect service. Failed attempts at service on Korb conti nued throughout the spring of 2008. In summ er 2008, plaintiffs made an ex parte motion to Judge Sand to appoint a United States m arshal to serve Korb. Judge Sand held a teleconfer ence with the parties shortly thereafter. 1 During this

1 Although the motion for service by marshal was made ex parte, all parties somehow heard about it and had counsel pres ent for the teleconference.6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 conference, after noting that Korb seem ed to be playing a cat-a nd-mouse game with plaintiffs regarding service, Judge Sand dec lin ed to grant Korb's motion to dismiss for lack of personal jurisdiction, explaining that he would not do so "under circum stances which deprived the plaintiffs' counsel of questioni ng [whether New York personal jurisd iction might exist], for example . . . letting [the Gerenas' attorney] depos e Mr. Korb about the exte nt of his contacts in New York." Judge Sand granted plaintiffs' ex parte m otion for service by marshal on July 8, 2008, stating that "good cause has been shown in support of the application that the defendant Korb has made himself unavailable for service by other m eans." A Connecticut state m arshal finally effected service on Korb on October 1, 2008, after th e case had been transferred to Connecticut. United States marshals also served Korb in November 2008.

(3) Decision Below This case came before Judge Eginton of the District of Connecticut in A ugust 2008. In October 2008, Korb renewed his motion to dismi ss for untimely serv ice and expiration of the statute of limitations. Yale made motions on the sam e grounds the following month. Judge Eginton granted both defendants' motions on Ma y 15, 2009. He first found that service on both defendants was untimely, as neither was served within 120 days and no extensions of tim e for service were requested or granted. Applying Conn ecticut law, he further f ound that the Gerenas' claims against both defendants were barred by the relevant statutes of limitations.7 1 2 Standard of Review We review a district court's dismissal for failure to tim ely serve process under Fed. R. Civ. P. 4(m) for abuse of discretion. Zapata v. City of New York , 502 F.3d 192, 195 (2d Cir. 2007); 3 see also Thompson v. Maldonado , 309 F.3d 107, 110 (2d Cir. 2002) (adopting abuse of discretion standard of review fo r Rule 4(m ) dismissals). "A district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2) m ade a clearly erroneous assessment of the eviden ce, or (3) rendered a decision that cannot be located within the range of permissible decisions." 4 5 6 7 Lynch v. City of New York , 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation marks omitted). A district cour t' s choice of law and its application of a statute of limitations are reviewed 8 9 de novo as questions of law. See Abdullahi v. Pfizer, Inc. , 562 F.3d 163, 190 (2d Cir. 2009); 10 Somoza v. New York City Dep't of Educ. , 538 F.3d 106, 112 (2d Cir. 2008). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Discussion (1) Dismissal for Failure to Timely Serve We begin with the district court's decision to dismiss the Gerenas' claims against Yale and Korb for failure to effect timely service unde r Federal Rule of Civil P rocedure 4(m). Rule 4(m) provides: If a defendant is not served within 1 20 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action without pr ejudice against that defendant or order that service be made within a s pecified time. But if the plaintiff shows good cause for the failure, the court m ust extend the time for service for an appropriate period.8 1 W e have interpreted this rule to give wide latitude to courts in deciding when to grant extensions on time to serve, including permitting courts to grant extensions even absent good cause. See 2 Zapata , 502 F.3d at 196. Because we find here that the district court was within the bounds of its discretion in determining that the Gerenas ha d neither sought nor received an extension of time to serve Yale, we affirm its dismissal of the case against Yale under Rule 4(m ). However, for the reasons explained below, it was an abuse of discretion to find that plaintiffs' time to serve Korb had not been extended by Judge Sand prior to transfer. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 a. Dismissal under Rule 4(m) against Yale was proper The district court did not abus e its discretion in determ ining that service on Yale was untimely. Although the Gerenas' case was removed to federal court on May 22, 2007, they did not serve Yale until October 29, 2007 , and at that point served onl y a state court summons. It was not until August 1, 2008 that plaintiffs served Yale with a federal summons. Appellants primarily argue that Yale had notice of this lawsuit before it was rem oved to federal court, as evidenced by the fact that Ya le had som eone pick up a copy of the complaint from the Bronx County Clerk. However, the simple fact that Yale obtained a copy of the state court complaint against it is insu fficient for service to be deem ed effective under New York law. See Macchia v. Russo , 67 N.Y.2d 592, 594 (1986) ("In a challenge to service of process, the fact that a defendant has received prompt notice of the action is of no m oment. Notice by means other than those authorized by statute does not br ing a defendant within the jurisdiction of the court." (internal citations omitted)). The Gerena s ' additional arguments that Yale waived any jurisdictional objections by rem oving the action from state to federal court, or by commencing 18 19 20 21 229 1 discovery, are sim ilarly unavailing. Yale promptly and repeatedly raised the defense of defective service. See Hamilton v. Atlas Turner, Inc. , 197 F.3d 58, 60-63 (2d Cir. 1999); Cantor 2 Fitzgerald, L.P. v. Peaslee , 88 F.3d 152, 157 n.4 (2d Cir. 1996). 3 4 5 6 A stronger argument for appellants is that thei r delivery to Yale of a state court summons might have adequately effected service as of Oc tober 29, 2007. There is a clear split of authority on whether or not service of a stat e c ourt summons, after removal to federal court, is sufficient to effect service. See Minter v. Showcase Sys., Inc. , 641 F. Supp. 2d 597 (S.D. Miss. 2009) (collecting cases on both sides – though none from courts in the Second Circu it – and ultimately determining that the view that federal service co uld be com pleted by delivery of the state court summons after removal was correct). We need not resolve this question here, however, because even if the state court summons wer e deemed sufficient, it too wa s served outside of the 120-day period prescribed for service. 7 8 9 10 11 See Fed. R. Civ. P. 4(m). Moreover, as Judge Eginton noted, there is no indication that the Ge renas sought an extension of the tim e to serve Yale from Judge Sand or that Judge Sand ever granted such an extension. 12 13 14 15 16 17 18 19 20 21 22 There are some indications in the record that Judge Sand intended to be permissive with the Gerenas in their service of Yale. In particular, the record contain s a letter from Yale University to Judge Sand acknowledging that "on December 13, 2007, the Court adjourned defendants' motions to afford plaintiffs an opportun ity to properly effect service," suggesting that Judge Sand may have intended to allow untimely se rvice. However, this does not am ount to a conclusive extension of time to serve, such th at we could say that Judge E ginton abused his discretion in deeming the Gerenas' service of Yale untim ely. We are particularly deferential to Judge Eginton's conclusion given that appellants s till have advanced no argu m ent as to why they10 could not timely serve Yale. Cf. Zapata , 502 F.3d at 196 (when good cause is not shown, whether or not to grant an extension is a discretionary determination). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Because the district court acted within the bounds of its discretion in determining that service on Yale was untimely and that the Gerenas had never been grante d an extension of tim e to serve, its decision to dismiss the suit ag ainst Yale is affirm ed on this ground.

b. Failure to timely serve Korb was excused for good cause The Gerenas' efforts to serve Korb stand in cont rast to their lack of effort to serve Yale. Given the record before this court and the facts as they stood before the district court, we cannot agree with its conclusion that the Gerenas' se rvice on Korb was also defective as untimely. In his May 2009 opinion, Judge Eginton expl ained that service on Korb was defective because Korb was untimely served and "there is no indicatio n that plaintiffs sought an extension of time to perfect service or that Korb did evad e service upon his return to the United States." This statement, however, is not supported by the record. To the contrar y, the record indicates that plaintiffs sought an extension of time to perfect service on Korb, and that Judge Sand granted it. Specifically, Judge Sand's July 2008 order direct ing service by United States m arshals on Korb operated as an extension of time to serve for good cause. During a June 2008 telephone conference, Judge Sand said the following to Ko rb' s counsel about defendant Korb's avoidance of service: [T]here have been efforts to serve Mr. Korb at his parents' home [and] . . . to invoke the Sheriff's Office . . . . I don't think I can, on the papers before me, conclude that plaintiffs' counsel has taken such ineffective means to effect servic e that on that ground, . . . his m otion [for service by marshal] should be de nied . . . . [Y]our letter w hich11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 points out that Mr. Korb has been within the jurisdiction on a num ber of occasions and has not been served is a little b it . . . like the little child sticking out his or her t ongue and saying, "Nah, nah, you can' t catch me." Mr. Korb has been fully aware . . . that the plaintiff is seeking to serve him . . . . Shortly thereafter, on July 8, 2008, Judge Sand granted plaintiffs ' ex parte Motion Appointing Marshal to Serve Defendant Korb, noting that "good cause has been shown in support of the application that the defendant Korb has made hi m self unavailable for service by other means . . . ." Korb argues that service was neverthele ss un timely because although Judge Sand's order may have included a finding that good cause had been shown for service by m arshal, "this does not equate to a good cause finding that the Rule 4( m ) service time should be extended." Brief of Def.-Appellee Gregory Korb at 10. This argument, however, is im plausible. It makes no sense that Judge Sand would order service by marshal al m ost a year after serv ice originally should have been accomplished while not also intendin g to extend the time to serve. A decision to allow service by marshal at this point in the litig a tion implicitly included a decision to allow late service. Moreover, the "good cause" language used in Judge Sand' s order likely references Rule 4(m), regarding timeliness of service, not Rule 4(c)(3), permitting service by marshal. Rule 4(c)(3) does not use the phrase "good cause," but rather sim ply provides: "At the plaintiff's request, the court may order that service be made by a United States m arshal or deputy marshal or by a person specially appointed by the court." Fe d. R. Civ. P. 4(c)(3). In contrast, Rule 4(m ) specifically states that "if the pl aintiff shows good cause for the failure [to serve], the court m ust extend the time for service for an appropriate period." Fed. R. Ci v. P. 4(m ). Accordingly, Judge12 1 2 3 Sand' s order stating that "good cause" had been shown is best read as a findi ng that the plaintiffs' failed attempts at service warranted an extensio n of time to serve, as well as a grant of permission to use the alternative method of service by m arshal. And once this good cause finding was made, an extension of time to serve was m andatory, not discretionary. See Fed. R. Civ. P. 4(m); 4 see also Blessinger v. United States , 174 F.R.D. 29, 31 (E.D.N.Y. 1997) ("If the plaintiff has shown good cause, the extension is m andatory."). 5 6 7 8 9 10 11 12 13 We note that Judge Sand's extension on time to serve did not specify a time by which service was to be completed, despite Rule 4(m)'s instruction that extensions on tim e to serve should be made "for an appropriate period." It w ould have avoided an unnecessary issue had the time been specified. In this case, the appropria te period by w hich to extend time to serve likely would have been the time it took th e m arshals to serve. Howeve r, no argument has been raised that Judge Sand abused his disc retion by not setting an "appropr iate period" for service. Accordingly, we need not consider at this point th e necessity of a district court explicitly defining an "appropriate period" wh en extend ing time to serve. Cf. In re Wireless Data, Inc. , 547 F.3d 484, 491-92 (2d Cir. 2008) (finding argument not raised on appeal to be waived). 14 15 16 17 18 19 20 21 22 Based on the record in this case prior to tran sfer, we conclude that the district court clearly erred in finding that no extension of tim e to serve had previously been sought by plaintiffs; one had been sought and had been granted by Judge Sand, along with an order for United States marshals to effect service. We t hus reverse the district court' s determination that Korb was not timely served.13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (2) Dismissal under the Statute of Limitations The district court provided a second ground upon which it dism issed the claims against both Korb and Yale: the untimeliness of the Gerenas' claim s under the applicable Connecticut statutes of limitations. The district cour t reached this result by applying Connecticut choice of law, and thus Connecticut's limitations peri od, without discussion. But ther e was a prelim inary choice of law issue here that the district court failed to acknowledge. Federal courts sitting in divers ity generally apply the law of th e state in which they s it. However, cases that are transferred from one federa l district to another present an exception to this general rule. When an acti on has been transferred, a federal court sitting in diversity m ust determine whether to apply the law of the transferor s tate, or the law of the transferee state in which it sits. If a district c ourt receives a case pur suant to a transfer under 28 U.S.C. § 1406(a), for improper venue, or 28 U.S.C. § 1631, for want of jurisdiction, it logica lly applies the law of the state in which it sits, since the original venue, with its go verning laws, was never a proper option. See Schaeffer v. Village of Ossining , 58 F.3d 48, 50 (2d Cir. 1995) (transferee laws apply after transf er under § 1406(a)); 15 Levy v. Pyramid Co. of Ithaca , 871 F.2d 9, 10 (2d Cir. 1989) (transferee laws apply after tr ansfer for lack of personal jurisd iction). In contrast, when a case is transferred for convenience under 28 U.S.C. § 1404(a), the law of the transferor state is to be applied so long as the transferor state could properly have ex ercised jurisdiction. 16 17 18 See Van 19 Dusen v. Barrack , 376 U.S. 612, 635-39 (1964); Fin. One Public Co. Ltd. v. Lehman Bros. 20 Special Fin., Inc. , 414 F.3d 325, 333-34 (2d Cir. 2005); SongByrd, Inc. v. Estate of Grossman , 206 F.3d 172, 179-80 (2d Cir. 2000) ("[I]n a transf erred action the law of the transferor 21 2214 1 2 3 4 5 6 7 8 9 10 11 12 13 jurisd iction applies . . . only if the transferor court has personal jurisdiction." (internal citation omitted)). In the instant case, the district cou rt failed to consider that New York choice of law might apply, since Judge Sand appears to have gran ted Yale' s motion to transfer the case to Connecticut under 28 U.S.C. § 1404(a), for convenien ce. Yale specified that its m otion was not being made for lack of personal jurisdiction, but rather "for the convenience of parties and witnesses, in the intere st of justice." To be sure, Judge Sand' s brief handwritten order did not specify which provision he was transferring under, but sim ply stated: "The motion to transfer the case to the District of Connecticut is granted in the inte rest of justice." 2 However, given that the motion being granted requested transfer under § 1404(a), it seem s reasonably clear that Judge Sand intended to transfer the action for conve nience' s sake without ever making a finding regarding personal jurisdiction. Th erefore, New York law, as the governing law of the transferor court, should still have been applied by the Distri ct of Connecticut, as long as jurisdiction in New York would have been proper. Cf. SongByrd, Inc. , 206 F.3d at 179-80. 14 15 16 17 18 Of course, if jurisdiction was not proper in New York, then the district court correctly applied Connecticut choice of law and Connecticut procedure. W ith resp ect to Yale, the issue need not be further explored, given that we are affir ming th e district court's opinion on the alternate ground that Yale was not timely served. However, with respect to Korb, whom we now

2 The language "in the interest of justice" is present in all three of the tr ansfer provisions. See 28 U.S.C. § 1404(a) (permitting transfer "[f]or the convenience of parties and witnesses, in the interest of justice"); 28 U.S.C. § 1406(a) (permitti ng a district court to tr ansfer a case which is filed "laying venue in the wrong division or district . . . if it be in the in terest of justice"); 28 U.S.C. § 1631 (permitting transfer if a "court finds th at there is a want of jurisdiction . . . if it is in the interest of justice").15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 deem properly served, it must be determined whet her personal jurisdicti on over Korb existed in New York, such that New York choice of law shoul d have governed the claim s against him. This is not a determination we are equipped to m ake in the first instance. Although Korb vigorously disputed whether pers on al jurisdicti on over him could be obtained in New York, the district court made no finding in this regard. Judge Sand, before he transferred, expressed the opinion that dismissal on jurisdictional grounds would have been inappropriate absent an inquiry into the extent of Korb's contacts in New Yor k. Korb him self admits that he was employed in New York for approximately nine months in 2006. Moreover, in plaintiffs' ex parte motion to Judge Sand to appoint a United States marshal to serve Korb, they expl ain that in March 2008, Korb's probation officer communicated to the Gere nas that Korb was in Europe and "planning to attend NYU." Given that Korb clearly had some contacts with New York , we must ask the district court to consider more thoroughly whether Korb m ight have been subject to personal jurisdiction in New York, such that New York choice of law principles should govern the action against him. If the district court determines on remand th at Connecticut law prope rly governs, we agree with its conclusion that the Gerenas' claims ar e barred under Connecticut law by the three-y ear limitations period contained in Conn. Gen. Stat . § 52-577. Although appella nts urge that Conn. Gen. Stat. § 52-590, which allows for tolling when a defendant is absent from the state, should save their claims, this provision applies only when "by reason of the defendant' s absence, it was impossible to commence an action in personam against the defendant." Venables v. Bell , 941 F. Supp. 26, 27 (D. Conn. 1996) (quoting 20 Dorus v. Lyon , 92 Conn. 55, 57, 101 A. 490 (1917)); see 21 also Cadlerock Joint Venture II, L.P. v. Milazzo , 287 Conn. 379, 392-93, 949 A.2d 450, 457-58 2216 1 2 (2008). Because Connecticut' s long-arm stat ute authorizes personal jurisdiction over nonresidents who commit tor tious acts within the state, Conn. Gen. Stat. § 52-590 is inapplicable. See Conn. Gen. Stat. § 52-59b(a). Under s ection 52-59b, the Gerenas could have served Korb at any point by serving the secretar y of state and m ailing a copy of the process to the defendant's last known address. 3 4 See Conn. Gen. Stat. § 52-59b(c) . Furthermore, the possibility that equitable tolling might apply here is foreclosed by Connecticut precedent, which establishes Conn. Gen. Stat. § 52-577 as a statute of repose not suscep tible to equitable tolling. 5 6 7 See Carter v. Univ. of Conn. , 04-cv-1625, 2006 WL 2130730, at *3 (D. Conn. July 28, 2006), 8 aff'd , 264 Fed. App'x. 111, 232 Ed. Law Rep. 104 (2d Cir. 2008). 9 10 11 12 13 14 15 16 17 On the other hand, if it is determined that New York law should govern, the outcome of the inquiry into the timeliness of the Gerenas' claim s might be different. We leave it to the district court to determine in the first inst ance, if necessary, how New York law should be applied to the facts of this case. However, be cause we find the analysis a difficult one, we offer a few thoughts on how a New York choice of law an alysis m ight proceed. Whereas Connecticut law would almost certainly govern the substantive aspects of this case under New York choice of law, New York still adheres to the tr aditional substantive/proce dural dichotomy in its choice of law analysis and generally classifies statutes of lim itations as pro cedural, except for those limitations periods which it designates as statutes of repose. See Tanges v. Heidelberg N. Am., 18 Inc. , 93 N.Y.2d 48, 58-59, 710 N.E.2d 250, 254-55, 687 N.Y.S.2d 604, 608-09 (1999); Stuart v. 19 Am. Cyanamid Co. , 158 F.3d 622, 626-27 (2d Cir. 1998) ("Ne w York courts generally apply New York's statutes of limitations, even when the injury giving rise to the action occurred outside New York."). 20 21 2217 1 2 3 New York' s statute of limitations would thus probably govern the Gerena's claims under New York choice of law. Although Connecticut has categorized C onn. Gen. Stat. § 52-577's threeyear limitations period as a statute of repos e, we doubt that New York courts, under the framework laid out by the New York Court of Appeals in Tanges , would agree for purposes of New York choice of law. 4 Cf. Tanges , 93 N.Y.2d at 93 (finding Conne cticut's own classification only instructive, not binding). First, the structure and legislat ive history of section 52-577 do not suggest that its limitations peri od was intended to create a right, rather than m e rely "erect[] a limitation around the existing common-law causes." 5 6 7 Tanges , 93 N.Y.2d at 56-57; see also 8 Sanborn v. Greenwald , 39 Conn. App. 289, 304-05, 664 A.2d 803, 811-12 (Conn. App. 1995) (finding that section 52-577 did not restrict a cause of action "but , rather, only establishe[d] the time period in which a plaintiff must assert this right"). Furtherm ore, there is no compelling policy rationale for New York to interpret section 52-577, which m ere ly sets forth a general torts limitations period, as a statute of repose. Unlike in the products liability context add ressed in 9 10 11 12 13 Tanges , where there is justifiable reliance by manufact urers and their insurers on the inability of plaintiffs to bring suit after a certain period of tim e, there is no analogous justifiable reliance by general tortfeasors. Moreover, New York's polic y of always giving its re sidents the benefit of New York's own statute of limitations, 14 15 16

see N.Y. C.P.L.R. § 202, would be undercut – in all those cases in which a resident was injured in the adjace nt state of Connecticut – if New Yo rk were to treat Connecticut's general three- year lim it for all genera l tort actions as a statute of repose. Accordingly, it seems likely that New York woul d look to its own laws, rather than to Conn. Gen. Stat. § 52-577, to determine the timeliness of this action. 17 18 19 20 2118 1 Under New York law, an action is "co mmenced" upon filing , not upon service on the defendant. See N.Y. C.P.L.R. § 304; Gershel v. Porr , 89 N.Y.2d 327, 330-31, 675 N.E.2d 836, 838, 653 N.Y.S.2d 82, 84 (1996). Therefore, under New York's commencement rule, the Gerenas' claims were commenced April 24, 200 7. And because New York provides that a plaintiff shall have one year from the termin ation of any crim inal proceedings against a defendant to commence a related civil action, 2 3 4 5

see N.Y. C.P.L.R. § 215(8)(a ), it appears that the Gerenas' claims, which were brought within one year of Korb' s no-contest plea for related misdemeanor offenses on October 30, 2006, were timely under New York law. 6 7 8 9 10 11 12 13 CONCLUSION For the foregoing reasons, the opinion of the district court is affir med in part and reversed in part, and the case is REMANDED for a determina tion of whether personal jurisdiction over Korb existed in New York, and for further pr oce edings consistent w ith this opinion.