552 F. Supp. 394 | E.D. Pa. | 1982
MEMORANDUM AND ORDER
The sole question presented by defendant’s motion for summary judgment
Plaintiff, a former employee of defendant, brings this action pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (FELA) for injuries purportedly sustained while at work on July 2, 1979. FELA requires that all actions brought thereunder “shall ... be commenced within three years from the day the cause of action accrued”. 45 U.S.C. § 56. In the case at bar, plaintiff, proceeding pro se, filed a motion to proceed in forma pauperis on July 1, 1982. Seven days thereafter, on July 8, 1982, the order was entered and plaintiff’s complaint filed. Hence, the question for decision is whether suit “commenced” within the meaning of Fed.R.Civ.P. 3 upon filing the application to proceed in forma pauperis or upon the subsequent docketing of the complaint. If the motion to proceed in forma pauperis “commences” the action and tolls the three-year statute, then the suit is not time-barred. However, if suit does not “commence” until the complaint is officially “filed”, then the limitations period has run.
Here, plaintiff’s FELA claim accrued on July 2, 1979. One day short of three years later, July 1, 1982, he filed his motion for leave to proceed in forma pauperis and thereby tolled the limitations period. Accordingly, plaintiff’s suit is not time-barred; defendant’s motion will be denied.
An appropriate order will issue.
. Although defendant captions its motion as a “Motion to Dismiss”, we properly treat it as seeking summary judgment because “matters outside the pleading are presented to and not excluded by the Court”. Fed.R.Civ.P. 12(b). See e.g., Affidavit of Jonathan F. Altman, Esq.