Campbell v. Miller

2003 DNH 155

• Court: District Court, D. New Hampshire
• Decided: September 11, 2003
• Docket: CV-03-208-JD
• Status: Published

Opinion

Campbell v. Miller CV-03-208-JD 09/11/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Campbell and Carolyn M. Campbell

v. Civil No. 03-208-JD Opinion No. 2003 DNH 155 Thomas R. Miller, et al.

O R D E R

The plaintiffs, Mark A. and Carolyn M. Campbell, brought

suit in state court against Thomas Miller, Nantucket Beadboard

Company, Inc., and Doe defendants, alleging that Mark was injured

in a workplace accident due to the defendants' negligence.

Carolyn Campbell brought a claim for loss of consortium. The

Campbells filed a motion to amend the writ of summons to add new

defendants. Brock Manufacturing and National Bulk Eguipment,

which was granted by the state court. The defendants then

removed the action to this court. Defendant Brock Manufacturing

moves to dismiss on the ground that the claims against it are

barred by the statute of limitations.

The parties agree that the plaintiffs' cause of action

against Brock Manufacturing accrued on March 10, 2000. The

applicable limitations period is three years. N.H. Rev. Stat.

Ann. ("RSA") § 508:4. In New Hampshire courts, "[f]or purposes

of complying with the statute of limitations, an action shall be deemed commenced on the date of service of the writ, or the date

of entry of the writ, whichever event occurs first." N.H. Super.

C t . R. 2. The original writ is dated June 5, 2002, and the

returns of service indicate that the named defendants were served

on June 12, 2002. The Campbells' motion for late entry of the

original writ was granted on February 6, 2003.

On February 24, 2003, the Campbells filed a motion to amend

their writ to add Brock Manufacturing and National Bulk

Eguipment. The amended writ was appended to the motion and was

filed with the motion. The state court granted the motion to

amend on February 27, 2003.1 On April 1, 2003, the Campbells

moved to extend the return date on the amended writ because the

Merrimack County Sheriff's Department advised them that the

amended writ could not be served on the New Hampshire Secretary

of State, for purposes of the two new defendants, until a new

return date was set. The Campbells reguested a return date of

the first Tuesday in May, 2003.

In response to the Campbells' motion, Strafford County

Superior Court issued an "Order of Notice - Civil Action" on

1The Campbells state in their objection to Brock Manufacturing's motion to dismiss that the state court granted their motion to amend on March 19, 2003. The court does not find any document in the statecourt record that indicates state court action on March 19, 2003. C f ."Plaintiff's Motion to Extend Return Date," 5 3.

2 April 9, 2003, in which it set May 6, 2003, as the return date

for the amended writ. According to the returns of service, the

New Hampshire Secretary of State, Brock Manufacturing, and

National Bulk Eguipment were served on April 15, 2003. The

defendants removed the case to this court on May 14, 2003.

"The statute of limitations is an affirmative defense, and

the defendant bears the burden of proving that it applies."

Donnelly v. Eastman, 826 A.2d 586, 588 (N.H. 2003). Once it

appears that the statute of limitations would bar the plaintiff's

claim, the plaintiff bears the burden of proving that an

exception applies. Furbush v. McKittrick, 821 A.2d 1126, 1129

(N.H. 2003) .

The parties agree that the three-year period allowed by RSA

508:4 expired on March 11, 2003.2 Brock Manufacturing contends

that the amended writ was filed with the Strafford County

Superior Court on April 1, 2003, and that it was served on April

15, 2003.3 As both events occurred after March 11, Brock

Manufacturing contends that the claims against it are barred by

the statute of limitations.

2Brock Manufacturing asserts that date as the end of the limitations period, and the Campbells do not dispute the date.

3The record does not show that the amended writ was entered on April 1, 2003. The Campbells filed a motion to extend the return date on that date.

3 In response, the Campbells do not dispute Brock

Manufacturing's assertion of the operation of the limitations

period. Instead, the Campbells argue that the court's delay in

acting on their motion to amend caused the delay in entry of the

amended writ and service of the writ on Brock Manufacturing. The

Campbells assert, without citation to the record, that the state

court did not grant their motion to amend until March 19, 2003.

They state: "It is clear that the plaintiffs preserved all their

rights by filing the motion to add parties well within the

statute of limitations and took all appropriate action thereafter

to notify the defendants of the Court's ruling thereon." Obj. 5

4.

The record demonstrates that the state court granted the

Campbells' motion to amend on February 27, 2003, just three days

after it was filed and within the limitations period. The

Campbells cite no authority to support their theory that a motion

to amend with the amended writ appended, or even a granted motion

to amend, tolls the limitations period as to newly added parties.

Therefore, the Campbells have not carried their burden to show

that an exception to the statute of limitations would apply in

these circumstances. The claims brought against Brock

Manufacturing are dismissed as barred by the statute of

limitations.

4 Conclusion

For the foregoing reasons, the defendant's motion to dismiss

(document no. 13) is granted. The plaintiffs' motion for leave

to file a surreply (document no. 18) is granted and the surreply

was considered. All claims against the defendant. Brock

Manufacturing, are dismissed.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

September 11, 2003

cc: John E. Durkin, Esguire John A. Curran, Esguire Charles P. Bauer, Esguire Lawrence B. Gormley, Esguire