53 F.R.D. 384 | D. Mont. | 1971
OPINION AND ORDER
In this diversity case the applicable Montana Statute of Limitations is three years.
Actions are barred in Montana unless commenced within the times limited.
I prefer the certainty which a literal application of Rule 3 brings to limitations problems to the uncertainty created by a read-in requirement that there be reasonable diligence in the service of process. I think that a failure to serve process should be treated as a failure to prosecute under Rule 41(b).
I do not reach the law problems treated in the arguments as to the defendant’s liability for the allegedly defective design. It may be that on proof of the facts set out in defendant’s brief defendants will prevail but those facts are not in the complaint which, examined with liberality, states a cause of action.
The motion to dismiss is denied, and defendant given twenty (20) days within which to further plead.
. R.C.M.1947 § 93-2605, subd. 2.
. R.C.M.1947 § 93-2601.
. Sylvestri v. Warner & Swasey Co., 398 F.2d 598 (2d Cir. 1968).
. Rule 3, F.R.Civ.Pro.
. The history of the rules supports this position. Messenger v. United States, 231 F.2d 328 (2d Cir. 1956), 2 J. Moore, Federal Practice ¶ 406-1 (2d ed. 1953). Contra Hukill v. Pacific & Arctic Railway & Navigation Co., 159 F.Supp. 571 (D.Alas.1958) and the dictum in Sylvestri v. Warner & Swasey Co., supra note 3.