Walker v. Armco Steel Corp.

Decision Date14 February 1979
Docket NumberNo. 78-1477,78-1477
PartiesFred N. WALKER, Plaintiff-Appellant, v. ARMCO STEEL CORPORATION, a corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Don Manners of Manners, Cathcart & Lawter, Oklahoma City, Okl., for plaintiff-appellant.

Burton J. Johnson and Richard L. Keirsey of Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., for defendant-appellee.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a Calendar C case.

This is a diversity action which raises the question whether Rule 3 of the Federal Rules of Civil Procedure or § 97 of Okla.Stat. title 12 (West Supp. 1978) determines when a case is filed in the federal court. Is it a state law or federal question? The underlying problem is whether Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) or Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) governs.

The United States District Court for the Western District of Oklahoma dismissed the action on the ground that it was outlawed by the statute of limitations in Oklahoma because it had not been filed in accordance with the Oklahoma rule; that although the case was actually filed in time, process was not served within the period of limitations prescribed by the Oklahoma statute. The trial court reasoned that the Oklahoma filing rule was integrated in the pertinent Oklahoma limitations provision. The trial court ruled that Hanna v. Plumer, supra, did not expressly overrule Ragan v. Merchants Transfer & Warehouse Co., supra, and, therefore, the latter case governed.

The facts are these:

Appellant Walker suffered an injury when a nailhead fragmented and hit his right eye, on August 22, 1975, while he was engaged in his work. The suit against Armco Steel Corporation, the manufacturer of the nail, alleges that the nail was defective. The complaint was filed in the Clerk's office of the United States District Court for the Western District of Oklahoma on August 19, 1977. Summons was issued the next day. For reasons which do not appear in the record, process was not served on Armco until December 1, 1977. On January 5, 1978, Armco filed a motion to dismiss plaintiff's complaint asserting that the statute of limitations barred the action. The motion was granted on April 18, 1978. The date of filing was three days prior to the date that the two-year statute would have barred the action. The issue, as indicated above, is when, if ever, the statute of limitations is tolled.

The Oklahoma statute which was relied on by the trial court and which is here sought to be applied reads:

An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons, or if service is sought to be procured by mailing, by a receipt of certified mail containing summons, within sixty (60) days.

Okla.Stat.Ann. tit. 12, § 97 (West Supp. 1978).

The above statute makes provision for faithful and diligent endeavor to procure service if it is carried out within 60 days of date of issuance, provided the summons is issued within the limitations period. Although the summons here was shown to have issued on time, the service was not completed within 60 days, nor is there any evidence that there was a diligent attempt to procure service. Therefore, the only hope which the plaintiff-appellant could entertain would be that the federal procedural provision would be ruled applicable.

There is another provision in the Oklahoma compilation, Okla.Stat.Ann. tit. 12, § 151 (West Supp. 1978), which provides that:

A civil action is deemed commenced by filing in the office of the court clerk of the proper court a petition and by the clerk's issuance of summons thereon. Where service by publication is proper, the action shall be deemed commenced at the date notice of publication is signed by the court clerk. Where service is sought to be effected by mailing, the action shall be deemed commenced when the envelope containing summons, addressed to the defendant or to the service agent if one has been appointed, is deposited in the United States mail with postage prepaid for forwarding by certified mail with a request for a return receipt from addressee only.

There is no indication, however, that this adds anything to §§ 95 and 97, both of which are construed by the Oklahoma Court of Appeals and the Supreme Court as limitation provisions.

The applicable Federal Rule is free of all of these complications. Rule 3 of the Federal Rules of Civil Procedure simply provides: "A civil action is commenced by filing a complaint with the court."

The question which we must consider is whether the Oklahoma statute, § 97, must be applied as the trial court applied it or whether Rule 3 of the Federal Rules of Civil Procedure should have been held to govern. The underlying issue is whether the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is consistent with the basic diversity notion that a federal court, sitting in diversity cases and administering state law, must apply not only substantive law of the forum state, but procedural law as well if the application of state procedural law changes the outcome of the case.

Unquestionably, § 97, Supra (the Oklahoma statute), is in direct conflict with Rule 3 of the Federal Rules of Civil Procedure with respect to what constitutes a filing which will toll the statute of limitations. That the Oklahoma provision is not only a filing provision but a limitations one as well is to be gleaned from the statute as well as the cases. See, for example, Tyler v. Taylor, 578 P.2d 1214 (Okl.App. 1977), and State ex rel. Roacher v. Caldwell, 522 P.2d 1031 (Okl. 1974). So even though the Oklahoma statute may be complex and even mysterious as compared with the federal provision in that it obligates the litigant not only to timely file the case but also to see that process issues and that the adversary is served on time in order to toll the statute of limitations, it is the law of Oklahoma. The fact that the local law appears technical and cumbersome is not a factor to be weighed. The controlling aspect is whether the outcome of the case is changed as a result of applying or not applying the state rule.

In support of the mentioned approach, defendant-appellee urges that the Supreme Court's decision in Ragan v. Merchants Transfer...

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7 cases
  • Roberts v. Magnetic Metals Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 14, 1979
    ...867 (1971) (federal tolling rule applied in diversity action), discussed in 71 Colum.L.Rev. 865 (1971); But cf. Walker v. Armco Steel Corp., 592 F.2d 1133 (10th Cir. 1979), Cert. granted, --- U.S. ----, 100 S.Ct. 43, 62 L.Ed.2d 29, (1979) (state's rule on tolling not displaced by Fed.R.Civ.......
  • Walker v. Armco Steel Corporation
    • United States
    • U.S. Supreme Court
    • June 2, 1980
    ...judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants. Pp. 752-753. 10 Cir., 592 F.2d 1133, Don Manners, Oklahoma City, Okl., for petitioner. Jay M. Galt, Oklahoma City, Okl., for respondent. Mr. Justice MARSHALL delivered the ......
  • Hammons v. International Playtex, Inc., C87-0235-B.
    • United States
    • U.S. District Court — District of Wyoming
    • January 14, 1988
    ...in Wyoming Rule 3(b). A long line of cases in the Tenth Circuit require parties to follow state tolling rules. See Walker v. Armco Steel Corp., 592 F.2d 1133 (10th Cir.1979), aff'd, 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir.......
  • Bradley v. Val-Mejias
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 23, 2004
    ...Here Bradley is asserting state law claims and it is undisputed that the Kansas law of the forum controls. See Walker v. Armco Steel Corp., 592 F.2d 1133, 1135 (10th Cir.1979) (noting that a federal court sitting in diversity and administering state law must apply the state law statute of l......
  • Request a trial to view additional results
2 books & journal articles
  • Walker v. Armco Steel Corporation: the Jurisprudence of Federal Rule 3
    • United States
    • Seattle University School of Law Seattle University Law Review No. 5-03, March 1982
    • Invalid date
    ...within sixty (60) days. Id. 22. Walker v. Armco Steel Corp., 452 F. Supp. 243, 245 (W.D. Okla. 1978). 23. Walker v. Armco Steel Corp., 592 F.2d 1133, 1136 (10th Cir. 1979). The court of appeals applied Ragan despite having concluded that Ragan relied on the York outcome determinative test i......
  • Federal "procedural" rules undermine important state interests in Shady Grove Orthopedic Associates. P.A. v. Allstate Insurance Co.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 34 No. 1, January 2011
    • January 1, 2011
    ...See West v. Conrail, 481 U.S. 35, 39 (1987). (59.) Walker, 446 U.S. at 750 n.9. (60.) Id. at 744 (citing Walker v. Armco Steel Corp., 592 F.2d 1133, 1135 (10th Cir. (61.) Shady Grove, 130 S. Ct. at 1438 (majority opinion). (62.) Id. at 1459 (Stevens, J., dissenting). (63.) In re Rhone-Poule......

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