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10. Is the court likely to grant the seller's motion to dismiss?
The following week, the seller's attorney moved to dismiss the complaint for failure to effect timely service of process.
Four months later, the buyer's attorney received a voicemail from the seller's attorney asking whether she had ever filed the buyer's complaint. The buyer's attorney immediately mailed a copy of the complaint to the seller's attorney.
Before filing a federal civil action against a seller, a buyer's attorney unsuccessfully tried to settle with the seller's attorney. Three days before the limitations period on the buyer's claim expired, the buyer's attorney told the seller's attorney that she would file a complaint that day and asked the seller's attorney whether he would accept service of the summons and complaint. The seller's attorney agreed to do so. The buyer's attorney promptly filed the complaint but forgot to serve the seller's attorney.
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A is incorrect. A statute of limitations is a matter of state law, not federal law. Although FRCP 3 states that an action is commenced when a complaint is filed, the Supreme Court has held that state law governs how and when a statute of limitations runs. See Walker v. Armco Steel Corp., 100 S. Ct. 1978 (1980); Ragan v. Merchants Transfer & Warehouse Co., 69 S. Ct. 1233 (1949).
B is incorrect. As a general rule, a statute of limitations does not stop running until the formal commencement of an action. Thus, informal notice of a possible complaint is insufficient. The seller's attorney agreed to accept service but did not agree to accept untimely service. Further, the buyer's attorney said the complaint would be filed «that day.» That statement suggested that service would be made promptly, and certainly within the 90-day window authorized by FRCP 4(m). Additionally, the seller's attorney asking, 120 days later, whether the complaint had been filed underscores the seller's lack of notice that the buyer had decided to go forward with the action.
D is incorrect. The fact that the statute of limitations expired before the seller's attorney was served would not require dismissal because the complaint was filed before the expiration of the limitations period.