#### James SMITH, Plaintiff, v. William M. KENNY and Matt Cook, Defendants.

Civ. No. 79-167.

District Court, Virgin Islands, D. St. Thomas and St. John.

Oct. 25, 1979.

Alexander A. Farrelly, Charlotte Amalie, St. Thomas, V.I., Birch, Dejongh & Farrelly, Charlotte Amalie, St. Thomas, V.I., for plaintiff.

Joel W. Marsh, Charlotte Amalie, St. Thomas, V.-1., for defendant Cook.

MEMORANDUM AND ORDER

CHRISTIAN, Chief Judge.

This case is presently before the Court on defendant’s motion to dismiss the complaint because it is time barred. The motion will be denied.

Plaintiff alleges that on June 10, 1977 he was injured when defendants negligently struck him with their motorcycle. The statute of limitations for personal injury actions is two years. 5 V.I.C. § 31. The complaint was filed on Monday, June 11, 1979. We are asked to determine whether the limitations period is tolled until the next working day if the period ends on a Saturday or Sunday. Pursuant to Fed.R. Civ.P. 6(a) we will hold that under such *114circumstances the statute of limitations is tolled.

Rule 6(a) specifies the method of computation for time periods. It provides:

TIME

> (a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last days of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

The majority viewpoint is that Rule 6(a) applies to federal statutes of limitations. *See Wirtz v. Peninsula Shipbuilders Ass’n,*382 F.2d 237 (4th Cir. 1967) (Labor-Management Disclosure Act); *Johnson v. Flemming,*264 F.2d 322 (10th Cir. 1959) (Social Security Review); *United States v. A. B. C. Roofing and Siding, Inc.,*193 F.Supp. 465 (D.Cal.1961) (Miller Act); *Prince*v. *United States,*185 F.Supp. 269 (D.Wis.1960) (Federal Torts Claim Act). The conclusion here reached is in keeping the liberal interpretation of the Federal Rules of Civil Procedure. *Boulet v. Millers Mutual Insurance, Ass’n,*36 F.R.D. 99, 101 (D.Minn.1964). It has been held that “[s]ince the rule had the concurrence of Congress, and since no contrary policy is expressed in the [substantive] statute governing . . . review, we think that the considerations of liberality and leniency which find expression in Rule 6(a) are . . . applicable . . . ”. *Union National Bank v. Lamb,*337 U.S. 38, 40-41, 69 S.Ct. 911, 913, 93 L.Ed. 1190 (1949).1 We view such an interpretation of Rule 6(a) as practical and fair.

The question before this Court is not whether Rule 6(a) applies to a federal statute but rather whether it applies to 5 V.I.C. § 31(5)(A). This Court is governed by the Federal Rules of Civil Procedure. Its procedure does not change with the nature of the suit before it.2 Thus, if Rule 6(a) affects the federal limitations period, it affects the Virgin Islands limitations period as well.

Applying Rule 6(a) to the facts before us, we find the action timely. The accident occurred on June 10, 1977 and the statute of limitations began to run on June 11. Pursuant to 5 V.I.C. § 31(5)(A) plaintiff had two years to bring suit and did so on Monday, June 11, 1979. Though the actions appears untimely it is within the limitation period. Rule 6(a) tolls the last day of the period of limitation if it falls on a Saturday, Sunday, or legal holiday. June 10,1979 was a Sunday. Therefore, the motion to dismiss the complaint must be denied.

1

. The minority viewpoint provides that Rule 6(a) applies to procedural actions only after the commencement of suit. *Joint Council Dining Car Employees Local 370 v. Delaware, L. & W. R. Co.,*157 F.2d 417, 420 (2d Cir. 1949). The limitations period is viewed as substantive law which cannot be altered by procedural rules. *See id. See generally*Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL: § 1163 (1969).

2

. There is a question as to whether Fed.R. Civ.P. 6(a) applies to state statute of limitations when actions are filed in federal court pursuant to diversity jurisdiction. *See*Wright and Miller, *supra.*