Dial v. Ivey, Civ. No. 73-198

• Decision Date: 07 February 1974
• Docket Number: 73-199.,Civ. No. 73-198
• Parties: Harold J. DIAL, Plaintiff, v. Thomas David IVEY, Defendant. John B. DIAL, Plaintiff, v. Thomas David IVEY, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

370 F. Supp. 833

Harold J. DIAL, Plaintiff, v. Thomas David IVEY, Defendant.

John B. DIAL, Plaintiff, v. Thomas David IVEY, Defendant.

Civ. Nos. 73-198, 73-199.

United States District Court, E. D. Oklahoma, Civil Division.

February 7, 1974.

Clifford K. Cate, Jr., Muskogee, Okl., Ben T. Benedum, Norman, Okl., for plaintiffs.

Donald G. Hopkins, Tulsa, Okl., for defendant.

ORDER

DAUGHERTY, Chief Judge.

These companion cases arise from an automobile accident occurring July 5, 1971 in Muskogee County, Oklahoma. The Plaintiffs are Oklahoma citizens and Defendant is a citizen of Georgia. The actions were filed in this Court on July 3, 1973. Summons in each case was issued on that date and served on the Oklahoma Secretary of State in accordance with the provisions of the Oklahoma Nonresident Motorist Act (47 Oklahoma Statutes § 391 et seq). Plaintiffs' attorney mailed Notice of Suit to Defendant by Certified Mail to an address in Sharpsburg, Georgia, which Notice was returned to sender marked "Moved—Left No Address". Plaintiff's attorney asserts in his Proof of Mailing that the Notice was mailed to Defendant at his last known address. Plaintiffs subsequently learned of Defendant's whereabouts and had a summons issued August 30, 1973 which was served personally on Defendant in Atlanta, Georgia along with a copy of the Complaint on September 7, 1973.

Defendant has filed a Motion to Dismiss in each case urging that the statute of limitations has run. He alleges that no service was effected by the summons issued July 3, 1973 and that the statute of limitations had run by the time Defendant was personally served with summons September 7, 1973.

In their Response to the Motions to Dismiss, Plaintiffs urge that the service requirements of the Oklahoma Nonresident Motorist Act were complied with and the service of July 3, 1973 was effective.

Defendant has replied to the Responses of Plaintiffs alleging that Plaintiffs failed to comply with the provisions of 47 Oklahoma Statutes 1971 § 398 relating to proof of service because they failed to file the required Proof of Mailing until October 10, 1973, after the Defendant's Motions to Dismiss were filed October 9, 1973. Defendant urges that strict compliance with the provisions of the Oklahoma Nonresident Motorist Act is required to effect valid service under the Act.

Service of process in this diversity action is governed by Rule 4(d)(1) and (7), Federal Rules of Civil Procedure, which provides same may be made in accordance with the laws of the state in which the District Court is held. Parks v. Slaughter, 270 F.Supp. 524 (W.D.Okl.1967). The defense of limitations is also governed by the law of the State where the action arises. Bechler v. Kaye, 222 F.2d 216 (Tenth Cir. 1955).

In the instant case, it must be determined if the Defendant was served in accordance with the laws of Oklahoma and whether the action was commenced within the applicable period of limitations. Actions for personal injuries are required to be brought within two years from the date the injuries occurred. 12 Oklahoma Statutes 1971 § 95. An action is deemed commenced for the purposes of computing the limitations period as set out in 12 Oklahoma Statutes § 97 which provides:

"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."

The procedure for serving summons pursuant to the Oklahoma Nonresident Motorist Act was set out in Moore v. Dunham, 240 F.2d 198 (Tenth Cir. 1956) to be:

"Oklahoma's Nonresident Motorist Act provides for the service of summons on a nonresident motorist defendant by serving a copy of the original summons or notice of suit with the Secretary of State, 47 O.S.A. § 394(a), and by mailing notification of suit to the defendant by restricted registered mail at his last known residence or place of abode, within ten days after serving notice on the Secretary of State. 47 O.S.A. § 394(b). A return receipt is required, 47 O.S.A. § 396, (Since repealed) which shall be filed with the Clerk of the district court in which the action is brought. 47 O.S.A. § 398."

In this action, summons was issued July 3, 1973. Plaintiffs' attorney mailed notice of suit to Defendant July 10, 1973 according to the postmark on the letter filed as an exhibit to the Proof of Mailing. In this Proof of Mailing, it is asserted that this Notice of Suit was sent to Defendant at his last known address and that same was returned "Moved—No address."

In Williams v. Egan, 308 P.2d 273 (Okl.1957), it was held that service was valid when the Nonresident Motorist Act was substantially complied with. In the instant case, the provisions in 47 Oklahoma Statutes 1971 § 394 requiring service on the Secretary of State and requiring notice to be sent to the Defendant at his last known address were complied with.

Defendant complains that the Plaintiffs failed to strictly comply with the provisions of 47 Oklahoma Statutes 1971 § 398 which provides:

"Proof of mailing of a copy of

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