Smith v. Skakel, 21038.
| Decision Date | 28 June 1971 |
| Docket Number | No. 21038.,21038. |
| Citation | 444 F.2d 526 |
| Parties | Jack A. SMITH, Plaintiff-Appellant, v. James C. SKAKEL, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Eugene J. Fisher, Detroit, Mich., on brief for plaintiff-appellant.
James K. Robinson, Detroit, Mich., for defendant-appellee; Miller, Canfield, Paddock & Stone, Detroit, Mich., on brief.
Before PHILLIPS, Chief Judge, and EDWARDS and CELEBREZZE, Circuit Judges.
Appellant Smith appeals from dismissal of his suit for violation of contract after service was finally made upon the defendant some nine and one-half years after the cause of action accrued.
Federal jurisdiction in this case is based upon diversity of citizenship and, hence, the Michigan Statute of Limitations of six years is concededly applicable. Mich.Comp.Laws § 600.5807(8) (1963). Appellant, however, contends that since the suit was filed one day prior to the running of the six years, service of process (even three and one-half years later) serves to toll the statute of limitations if diligent efforts to accomplish service of process have been made.
The United States Supreme Court has decided that state limitations laws must be applied by federal courts in diversity cases. Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
The sole question on this appeal is whether or not under applicable Michigan law and all of the facts and circumstances of this case the Michigan Statute of Limitations should be held to have been tolled for three and one-half years. Applying Michigan law, the District Judge held "that the Statute of Limitations has run and that the case should be dismissed," saying that, "I can't hold three years, and a half as reasonable time."
The legal issues involved herein have been considered recently by the Michigan Court of Appeals in Guastello v. Citizens Mutual Insurance Co., 11 Mich.App. 120, 160 N.W.2d 725 (1968), and decided adversely to appellant's position.
Michigan case law appears to have required "due diligence to give notice to the defendant" and "reasonable promptitude in serving the original summons and alias summonses." Yeager v. Mellus, 328 Mich. 243, 248, 43 N.W.2d 836, 838 (1950). These two standards were in force by case law at the times applicable to the instant litigation.
Since then a Michigan statute has specifically defined the time for service under the circumstances of this case as a maximum of 90 days. The applicable section of the Michigan Compiled Laws states:
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...of Cause No. 69 C 148(1) tolled the statute of limitations. Mayo Clinic v. Kaiser, supra, 383 F.2d at p. 656; Smith v. Skakel, 444 F.2d 526, 527 (6th Cir. 1971); Murphy v. Citizens Bank of Clovis, 244 F.2d 511, 512 (6th Cir. 1957). Cause No. 69 C 148(1) was pending in this court almost two ......
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Gleason v. McBride
...of events and long after the running of the three year statute of limitations did not constitute due diligence. See Smith v. Skakel, 444 F.2d 526, 527 (6th Cir.1971) (service 3 1/2 years after 6 year statute of limitations expired was not due diligence). The district court also correctly he......
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...by the district court does find support in several cases involving diversity of citizenship jurisdiction. See, e. g., Smith v. Skakel, 444 F.2d 526 (6th Cir. 1971); Murphy v. Citizens Bank of Clovis, 244 F.2d 511 (10th Cir. 1957); Newhart v. George F. Hellick Coffee Co., 325 F.Supp. 1047 (E......
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