Rosa v. Cantrell, 81-1487

• Decision Date: 10 December 1982
• Docket Number: No. 81-1487,81-1504.,81-1487
• Citation: 705 F.2d 1208
• Parties: Rebecca L. ROSA, as Personal Representative of Michael Rosa, Deceased, Plaintiff-Appellant/Cross-Appellee. v. Ed CANTRELL, Defendant-Appellee/Cross-Appellant and Matt BIDER, James Callas, and the City of Rock Springs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

705 F.2d 1208

Rebecca L. ROSA, as Personal Representative of Michael Rosa, Deceased, Plaintiff-Appellant/Cross-Appellee. v. Ed CANTRELL, Defendant-Appellee/Cross-Appellant and Matt BIDER, James Callas, and the City of Rock Springs, Defendants-Appellees.

Nos. 81-1487, 81-1504.

United States Court of Appeals, Tenth Circuit.

December 10, 1982.

COPYRIGHT MATERIAL OMITTED

George A. Zunker, Urbigkit & Whitehead, Cheyenne, Wyo., for plaintiff-appellant/cross-appellee.

Glenn Parker, Hirst & Applegate, Cheyenne, Wyo. (James L. Applegate and Harold Frederick Buck, Hirst & Applegate, Cheyenne, Wyo., with him on the brief), for defendant-appellee The City of Rock Springs.

Eugene S. Hames, Wood, Ris & Hames, Denver, Colo. (William K. Ris, Wood, Ris & Hames, Denver, Colo., and James E. Fitzgerald, Cheyenne, Wyo., with him on the brief), for defendant-appellee/cross-appellant.

Before SETH, Chief Judge, DOYLE, Circuit Judge, and BOHANON, Senior District Judge.^*

WILLIAM E. DOYLE, Circuit Judge.

This is a homicide case brought by the wife of the victim of the homicide, one Michael Rosa who was shot and killed by the defendant Cantrell on July 15, 1978. It was alleged that this was just two days before Rosa was to have appeared before a grand jury which had been empaneled by the State to investigate alleged corruption in Rock Springs. At the time Cantrell was employed by the City of Rock Springs, Wyoming as the Public Safety Director. The victim was an undercover agent who worked for the City and was under the supervision of Cantrell. The plaintiff Rebecca Rosa brought the action on July 14, 1980 in the United States District Court for the District of Wyoming. Her status was that of personal representative of her deceased husband. Count One was based on Wyoming's wrongful death statute, W.S. § 1-38-101, whereas Count Two alleged a cause of action arising under federal law, 42 U.S.C. § 1983. Named as defendants in this latter suit were Cantrell and the City of Rock Springs, Wyoming.

The principle issue in the case is whether the trial court erred in dismissing the wrongful death action. The court's conclusion was that the statute of limitations had run, a conclusion which was reached despite the fact that Cantrell had not been available for the service of summons during the period following the filing.

From the date of the filing the sheriff's office made an effort to locate Cantrell but he was not to be found. Finally on July 29, 1980, some two years following the incident, an alias summons was issued for Cantrell and service was attempted upon him in Douglas, Wyoming. This was unsuccessful. On August 14, 1980 a second alias summons was issued for Cantrell and was delivered to the U.S. Marshal in Sweetwater County, Wyoming. This summons, along with the complaint, was left with Cantrell's wife at their home in Rock Springs. The return of the Marshal stated that on September 4, 1980 he had served a copy of the summons and complaint with a person of suitable age residing in the defendant's usual place of abode (in Rock Springs). Mrs. Cantrell held the complaint and summons for two weeks during which time she neither reported to the marshal nor did anything. After the two weeks had passed she notified Rosa's counsel that Ed Cantrell had not been at that address and had not received the service. She further stated she did not know his whereabouts. However, personal service was ultimately made on Cantrell in Fall River County, South Dakota, on October 17, 1980.

Cantrell's counsel filed a motion to quash service and to dismiss the complaint against him on the ground that the statute of limitations had run. This contention was made notwithstanding the fact that he had not been present within the county in which the homicide occurred during the period following the filing of the complaint and the issuance of the summons.

The trial court dismissed the wrongful death claim against Cantrell on February 26, 1981. The judge found that this Count was barred by the statute of limitations, § 1-38-102(d) and Rule 3(b) of the Wyoming Rules of Civil Procedure. This latter Rule requires that the complaint be served within 60 days from the date of the filing of the complaint. If there is a failure to make this service within 60 days, then the action is deemed commenced on the date of service. The trial court also found that the attempted service on Cantrell on September 4, 1980 was void inasmuch as the place where the summons was left was not his usual place of abode.

The trial court also granted the motion of the City of Rock Springs to dismiss the § 1983 claim based upon the fact that the cause of action was said to have arisen July 15, 1978, and therefore the doctrine of sovereign immunity was in effect then. The court relied on the Wyoming case of Oroz v. Board of County Commissioners of Carbon County, 575 P.2d 1155 (Wyo.1978).

The court denied Cantrell's motion to dismiss the civil rights claim against him. It found here that the claim raised a federal question which was controlled by the Federal Rules of Civil Procedure; that this complaint was properly filed within the two year statute of limitations as provided by Wyoming law on July 14, 1980, just one day short of the two year period. A final judgment which was entered March 28, 1981 dismissed the wrongful death claim against him and also the civil rights claim as against the City of Rock Springs.

The contentions on appeal are that:

1. The trial court erred in dismissing the wrongful death claim against Cantrell as being barred by the statute of limitations;

2. The court erred in refusing to apply the Wyoming Savings Clause § 1-3-118 of the Wyoming statutes. This, as we will presently see, will allow the plaintiff to refile the complaint;

3. The court erred in refusing to uphold the service based upon the tolling of the statute of limitations;

4. The court erred in ruling that the City of Rock Springs was immune from suit under § 1983;

5. That if the City is not immune, nevertheless the dismissal of the § 1983 claim ought to be affirmed because of the state law defenses of payment and/or failure to file notice of a claim with the City;

6. That the court erred in determining that the § 1983 claim against Cantrell should not be dismissed as being barred by the Wyoming statute of limitations;

7. That the personal representative of the decedent had standing to bring this § 1983 claim on her behalf or on behalf of the descendants of the decedent.

I. THE CONTENTION THAT THE ACTION COMMENCED IN ACCORDANCE WITH RULE 3 OF THE APPLICABLE FEDERAL RULE OF PROCEDURE

The argument of appellant is that the Supreme Court's decision in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), applies to this case. In Hanna the Supreme Court held that in a diversity case service is governed by the Federal Rules of Civil Procedure, rather than those of the state. But this conflict between the Hanna v. Plumer decision and that in Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) has been settled by the Supreme Court in Walker v. Armco Steel Corporation, 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). There is no rationale which supports the contention that Hanna v. Plumer is applicable. The decision in Walker clearly dictates that the Wyoming Rules of Civil Procedure are to be applied in this diversity action.

This conclusion does not, however, end the matter. Even accepting the fact that the doctrine of Walker v. Armco Steel Corporation, 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980) governs this issue, we nevertheless are of the opinion that under all of the facts and circumstances here that personal jurisdiction over the defendant has been established; and that the service made at the defendant's home was effective; that the Wyoming Savings statute § 1-3-118 furnishes an alternative basis for obtaining jurisdiction over the defendant Cantrell.

II.

Do the facts and law establish the validity of the service of process based upon the delivery of the complaint and summons to Mrs. Cantrell on September 4, 1980? Was this his home in Rock Springs, Wyoming, or was the service valid by reason of the tolling of limitations statute W.S. Section 1-3-116? This nullifies the running of limitations during abscondence, absence or concealment. The alternative issue is whether, as a result of the absence, abscondence or concealment by the defendant, the statute was tolled. We further consider whether the Wyoming savings statute is applicable.

The Wyoming Savings statute § 1-3-118 was also designed for situations like this where the plaintiff files the action in a timely manner and makes a diligent good faith effort to serve the defendant but is unable to complete service within the sixty day time period through no fault of his own. The various attempts at service dispel any notion of lack of good faith. This statute provides:

If in an action commenced in due time, a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits and the time limited for the commencement of the action has expired at the date of the reversal or failure, the plaintiff, or his representatives if he dies and if the cause of action survives, may commence a new action within one (1) year after the date of the failure or reversal. This provision also applies to any claim asserted in any pleading by a defendant.

DO THE FACTS AND LAW ESTABLISH THAT SERVICE WAS VALID; THAT THE ACTION HAD COMMENCED WITHIN THE PROVISIONS OF WYOMING LAW?

We here address the issues as to whether the circumstances establish, first, the validity of the service on Sept. 4 as a result of delivery of the summons and complaint at his usual place of abode; or, in the alternative, as a result of absconding or leaving the state or concealment, does the Wyoming tolling statute § 1-3-116 apply so as to extend the period within which service could be made. A...