Brooks v. K.S.T., Inc.

• Decision Date: 09 October 2020
• Docket Number: Case No. 2:20-cv-00001
• Court: U.S. District Court — District of Vermont
• Parties: MICHAEL BROOKS, MARILYN BROOKS, and JOSEPH BROOKS, Plaintiffs, v. K.S.T., INC., d/b/a SNOWMOBILE VERMONT, and WE ARE SLEDS, INC., Defendants.

MICHAEL BROOKS, MARILYN BROOKS,and JOSEPH BROOKS, Plaintiffs, v. K.S.T., INC., d/b/a SNOWMOBILE VERMONT,and WE ARE SLEDS, INC., Defendants.

Case No. 2:20-cv-00001

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

October 9, 2020

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO EXTEND THE TIME FOR SERVICE OF PROCESS AND DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION TO DISMISS

(Docs. 6, 8, & 12)

Plaintiffs Michael Brooks, Marilyn Brooks, and Joseph Brooks (collectively, "Plaintiffs") bring this suit against Defendants K.S.T., Inc., d/b/a Snowmobile Vermont and We Are Sleds, Inc. (collectively, "Defendants"), arising from permanent injuries allegedly sustained by Michael and Marilyn Brooks during a guided snowmobile tour (the "Tour") operated by Defendants. In a one-count First Amended Complaint ("FAC"), Plaintiffs allege that Defendants negligently failed to properly train and prepare Plaintiffs to operate snowmobiles before and during the Tour; failed to properly supervise Plaintiffs through advanced sections of the snowmobile trail during the Tour; and failed to equip Plaintiffs with snowmobiles which had limited acceleration and speeds appropriate to their skill level and terrain selection. Plaintiffs allege diversity of citizenship subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) and (b).

On April 7, 2020, Defendants moved to dismiss the FAC, arguing that Plaintiffs' claims sounding in tort are barred by the three-year statute of limitations set forth in 12 V.S.A. § 512. (Doc. 6.) Although Plaintiffs filed their original Complaint before the statute of limitations expired, they did not serve it on Defendants within sixty days as required by Vt. R. Civ. P. 3. Defendants amended their motion to dismiss on May 1, 2020. (Doc. 8.)¹

On May 7, 2020, Plaintiffs opposed the motion to dismiss and moved to retroactively extend the time for service of process by fifteen days. (Doc. 12.) They requested that the court find their neglect in failing to meet the sixty-day service deadline excusable under Vt. R. Civ. P. 6(b)(1)(B) because the law is not clear as to whether Vt. R. Civ. P. 3 or Fed. R. Civ. P. 4(m), which provides a ninety-day service deadline.

Defendants replied to their motion to dismiss and opposed Plaintiffs' motion for an extension on May 21, 2020. Plaintiffs filed their reply on June 4, 2020, whereupon the court took the pending motions under advisement.

Plaintiffs are represented by Joshua L. Simonds, Esq. Defendants are represented by Edward D. Laird, Jr., Esq.

I. Procedural History.

Plaintiffs filed their Complaint on January 2, 2020. On February 3, 2020, Plaintiffs amended their Complaint, revising two paragraphs in which Plaintiff Marilyn Brooks was referred to as "Marilyn Kelly." (Doc. 2-1 at 4-5, ¶¶ 35-36.)

According to the affidavit of Attorney Simonds filed in connection with Plaintiffs' motion to extend, on February 19, 2019, Attorney Simonds contacted Defendants, who advised that they were represented by Attorney Thomas Aicher. On February 21, 2019, Attorney Simonds wrote to Attorney Aicher to provide background information regarding Plaintiffs' injuries and to request that he notify Defendants' insurer of Plaintiffs' claim; implement a litigation hold; and cooperate in conducting a site visit of the location of the incident. Attorney Simonds and Defendants' insurer communicated through September 4, 2019, at which time the insurer denied liability. Attorney Simonds advised the insurer to "keep the file open as a claim would be [forthcoming]." (Doc. 12-1 at 3, ¶ 12.)

On February 25, 2020, Attorney Simonds contacted Attorney Aicher via telephone to suggest pre-litigation mediation or Early Neutral Evaluation. That same day, Attorney Simonds provided Attorney Aicher with the Complaint, the FAC, and waivers of service of summons for both Defendants, and asked if Attorney Aicher would accept service. Attorney Aicher agreed that early mediation might be desirable and represented he would forward the waivers of service of summons, the Complaint, and the FAC to Defendants' insurer. Later that week, the insurer called Attorney Simonds to inform him that it had not yet decided whom to hire as Defendants' counsel.

On February 28, 2020, Charles Romeo, Esq. of Ryan, Smith & Carbine, Ltd. left Attorney Simonds a voicemail stating he and Edward Laird, Jr., Esq. would be representing Defendants in this matter. Attorney Simonds left Attorney Romeo a voicemail regarding the waivers of service of summons on March 2, 2020. On March 4, 2020, Defendants' counsel confirmed via email that they would not agree to waive service. Personal service was completed on March 17, 2020, seventy-five days after Plaintiffs filed their original Complaint.

II. Whether the Court May Consider the Affidavits of James A. Dumont, Esq., Gregory A. Weimer, Esq., and Lisa Shelkrot, Esq.

In support of their motion for an extension of time to complete service, Plaintiffs attached affidavits from three Vermont lawyers, James A. Dumont, Esq., Gregory A. Weimer, Esq., and Lisa Shelkrot, Esq., regarding their understanding of whether the Vermont Rules of Civil Procedure govern the time for service of process in a federal diversity action (the "attorney affidavits"). Defendants assert that the attorney affidavits are proffered as the opinions of legal experts on the ultimate issue and, for that reason, they are inadmissible.

Although "[a]n opinion is not objectionable just because it embraces an ultimate issue[,]" Fed. R. Evid. 704, "[a]s a general rule an expert's testimony on issues of law is inadmiss[i]ble." United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); see also Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) ("This circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion.").The attorney affidavits opine on whether the Federal or Vermont Rules of Civil Procedure apply in a diversity action under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), which is a legal conclusion. To the extent they are intended to illustrate the reasonableness of Plaintiffs' approach and the alleged experts' shared interpretation of the applicable rules, "Erie-type problems [are] not to be solved by reference to any traditional or common-sense substance-procedure distinction[.]" Hanna v. Plumer, 380 U.S. 460, 465-66 (1965). The court thus does not consider the attorney affidavits in deciding the parties' motions.

III. Conclusions of Law and Analysis.

A. Whether Vt. R. Civ. P. 3 Applies in Federal Diversity Actions.

"Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). State laws that significantly affect a plaintiff's "right to recover" in federal court, such as statutes of limitations, are considered state substantive law which federal courts must apply. Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 109 (1945). Although federal law governs service of process when there is a "direct collision" between the Federal Rules of Civil Procedure and state laws, Hanna, 380 U.S. at 472 (holding Fed. R. Civ. P. 4 controlled rather than the Massachusetts in-hand service of process rule), federal courts must apply state service of process rules where there is no such collision because the "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 v. Armco Steel Corp., 446 U.S. 740, 751 (1980).

Fed. R. Civ. P. 3 provides that "[a] civil action is commenced by filing a complaint with the court[,]" and Fed. R. Civ. P. 4(m) allows ninety days for service. Pursuant to Vt. R. Civ. P. 3(a), however, "[a] civil action is commenced by filing a complaint with the court. . . . When an action is commenced by filing, summons and complaint must be served upon the defendant within [sixty] days after the filing of the complaint." Id. If a plaintiff "files the case within the limitation period," then under Vermont law, "the plaintiff must complete service within the time limit specified in Rule3 or [the] plaintiff will lose the filing date for purposes of statute of limitations compliance." Clark v. Baker, 2016 VT 42, ¶ 11, 201 Vt. 610, 615-16, 146 A.3d 326, 329-30; see also Weisburgh v. McClure Newspapers, Inc., 396 A.2d 1388, 1389 (Vt. 1979) ("[I]f the filing of a complaint is to be effective in tolling the statute of limitations as of that filing date, timely service under the [Vermont] Rules of Civil Procedure must be accomplished.").

This court has consistently held that Vt. R. Civ. P. 3 is an integral part of Vermont's statutes of limitations and therefore applies in federal diversity actions. See, e.g., Zhang v. Smugglers' Notch Mgmt. Co., 2012 WL 2872841, at *2 (D. Vt. July 12, 2012) (holding "service must be achieved within Vermont's [sixty]-day limit when failure to do so would exceed the statute of limitations."); Hitzig v. Hubbard, 2009 WL 1810850, at *2 (D. Vt. June 25, 2009) (holding Vt. R. Civ. P. 3's "[sixty]-day period controls in a federal diversity case, and that the limitations period is no longer tolled after the [sixty] days has elapsed"); Lucus v. Wengert, 2007 WL 2792496, at *3 (D. Vt. Sept. 25, 2007) ("Rule 3 makes service of process an integral part of the Vermont statute of limitations because under Vermont law, in order to toll the statute of limitations as of the filing date, timely service must be accomplished."); Cuocci v. Goetting, 812 F. Supp. 451, 452 (D. Vt. 1993) ("[I]t is Vermont law, not Federal law, which determines when a plaintiff's action is commenced for purposes of tolling the statute of limitations" because the "Vermont Supreme Court has indicated that Vt. R. Civ. P. 3 is an integral part of Vermont's limitations statutes.") (citing Weisburgh, 396 A.2d at 1389); Poulos v. Wilson, 116 F.R.D. 326, 330 (D. Vt. 1987) ("We . . . are...