MEMORANDUM AND ORDER
This matter is before the court on defendant Giant Corporation’s motion to dismiss pursuant to Federal Rule оf Civil Procedure 12(b)(6). In support of its motion, defendant states that the two-year statute of limitations of K.S.A. 60-513(a)(4) ran as of June 19,1988. Plaintiff's amended complaint, in which plaintiff named Giant Corporation as a defendant, was filed on June 23, 1988. Therefore, defendant Giant Corporation contends that plaintiff failed to file an аction against it within the two-year statute of limitations, and that plaintiff’s case against it should therefore be dismissed. In his opposition to defendant Giant Corporation’s motion to dismiss, plaintiff contends that his amendеd complaint was filed on May 20, 1988, when he filed his motion for leave to file a first amended complaint.
Thе court file reveals the following. First, plaintiff filed his motion for leave to file a first amended complаint on May 20, 1988. Attached as an exhibit to that motion was plaintiff’s proposed amended complaint. Second, on June 14,1988, the court
Under Federal Rule of Civil Procedure 3, “[a] civil action is commenced by filing a complaint with the court.” In diversity cases such as the one at bar, however, Rule 3 does not control when federal lawsuits commence for purposes of tolling state statutes of limitation.
Saraniero v. Safeway, Inc.,
A civil action is сommenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is оbtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the рlaintiff....
Thus, for statute of limitations purposes, a plaintiff must serve a defendant within 90 days of filing a complaint in оrder to toll the running of the statute as of the date on which the complaint was filed.
Although the defendant аrgues that K.S.A. 60-203 controls and plaintiff argues that Federal Rule of Civil Procedure 3 controls the determinatiоn of defendant’s motion, the court finds that neither the state statute nor the federal rule answers the questiоn presented by defendant’s motion: is an amended complaint deemed filed at the time it is presented to the court by way of motion for leave to amend, or at the time the court formally grants such a motion, or at the time the amended complaint is actually filed as a separate document (i.e., rather than as an exhibit to the motion for leave to amend)? Defendant evidently takes the position thаt the date the amended complaint is filed as a separate document is the date of filing. Plaintiff, on the other hand, argues that the amended complaint is deemed filed on the date the motion for lеave to amend is filed. The court agrees with the plaintiff.
In
Gloster v. Pennsylvania Railroad Co.,
To give sanction to objections to the amendment, that leave to amend must await the actual placement of a judge’s signature on an order to amend, would be to lend impracticality and injustiсe to federal judicial processes and proce-dure_ The Court has need for researсhing and deliberating upon the law as applied to the facts of the case, and this had to be done while applying time and energy to the many other matters in a busy court. The necessary time so consumed ... should not and cannot be permitted as an obstacle to justice. Such is the intendment and spirit of the Federal Rules of Civil Procedure.
Id.; see also Longo v. Pennsylvania Electric Co.,
The court holds that plaintiff’s amended complaint was effectively filed when his motion for leave to file an amended complaint was filed on May 20, 1988. To hold otherwise would punish plaintiff and other similarly situated plaintiffs for the court’s unavoidable delay in issuing an order granting leave to amend a complaint. In the case at hand, plaintiff filed his motion to amend well within the two-year statute of limitations. Furthermore, plaintiff served defendant Giant Corporation with
IT IS THEREFORE ORDERED that defendant Giant Corporation’s motion to dismiss is denied.
Notes
Plaintiff states in his brief that defendant Giant Corporation was served with the amended complaint on July 6, 1988, well within thе ninety day time limit of K.S.A. 60-203. Furthermore, Giant Corporation does not complain that plaintiff failed to properly serve the amended complaint. The court therefore accepts plaintiffs representation that defendant Giant Corporation was properly served on July 6, 1988.