Peters v. Benway’s Transportation, No. S0793-03 Cncv (Katz, J., Mar. 11,
2004)



[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
Chittenden County, ss.:



BRENDA PETERS

v.

BENWAY’S TRANSPORTATION &
DAVID RICHIE




                                 ENTRY

       Defendants seek to dismiss claims under V.R.C.P. 12(b) for failure
to serve process in a timely manner. Plaintiff opposes this motion by
arguing that her failure was the result of excusable neglect.

      Plaintiff’s cause of action against defendants accrued on September
18, 2000. Under 12 V.S.A. § 511, plaintiff had until September 17, 2003,
three years later, to file suit against defendants for this incident. Plaintiff
commenced her action by filing her complaint on June 27, 2003, initially
putting her well within the statutory deadline. All plaintiff needed to do to
complete filing under V.R.C.P. 3, and thereby preserve her claim, was to
serve defendants with process by August 26, 2003, sixty days later.
Plaintiff failed to do so for any of the defendants within this time period
and did not file anything with the court until September 26, 2003, nine days
after the expiration of her cause of action. At that time, plaintiff filed for a
V.R.C.P. 6(b) extension to serve defendants, which she was granted
without review. Defendants challenge this extension.

         Normally, when a plaintiff fails to serve process within the sixty day
period of Rule 3, she has two options: 1) to re-file and serve properly under
Rule 3, or 2) to make a motion for an extension of time to serve under Rule
6(b)(2). See Poulos v. Wilson, 116 F.R.D. 326 (D.Vt. 1987) (granting a
Rule 6(b)(2) motion when defendant was served one day after the time for
Rule 3 service lapsed but eight days before statute of limitations ran). By
the time plaintiff realized her mistake in late September, it was too late to
re-file because she was now beyond the three year deadline of § 511.
Instead, plaintiff sought the second option to extend her filing time under
Rule 6(b). While Rule 6(b) is applicable to problems with Rule 3, it is
limited in its application. See Raymond v. Int’l Bus. Mach. Corp., 148 F.3d
63, 66 (2d Cir. 1998) (noting that Rule 6 is applicable to most but not all
time requirements within the Rules of Civil Procedure). The problem with
plaintiff’s argument is that by accepting her extension of time to serve, we
would not just extend the time allowed under Rule 3 but would also extend
the time allowed under the statute of limitations. 12 V.S.A. § 511. This
latter time period created by statute is outside the Rules of Civil Procedure
and therefore outside the scope of Rule 6(b), making it ineligible for such
an extension. Hammons v. Int’l Playtex, Inc., 676 F. Supp. 1114, 1118
(D.Wyo. 1988), vacated and remanded by party stipulation, 872 F.2d 963
(10th Cir. 1989) (noting that the 60 days under Rule 3 was an “integral part
of the statute of limitations” and any enlargement would frustrate its
policies); 4B C.Wright & A.Miller, Federal Practice and Procedure § 1165,
at 519–20 (2002).

        Unlike the more flexible rules of procedure, the statute of limitations
can only be tolled or barred under specific circumstances. See 12 V.S.A. §
512(4) (delaying the accrual of a cause of action until discovery of injury);
White v. White, 136 Vt. 271 (1978) (discussing estoppel as a bar to
asserting the statute of limitations). While Rule 3 does toll the statute of
limitations for its sixty day period, it requires that service to be timely.
Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594, 595 (1979) (Under,
Rule 3, the statute of limitations will extend to the end of the 60 days
provided in Rule 3 so long as timely service is accomplished.). To extend
plaintiff’s time for service would bootstrap plaintiff into the statute of
limitations in violation of Rule 3's limited tolling and Rule 6(b)’s
inapplicability. Fercenia v. Guiduli, 2003 Vt. 50, at ¶ 9. Plaintiff cannot
use Rule 6(b) as a procedural end-run around the finality imposed by the
legislature in the statute of limitations. Notwithstanding our prior granting
of plaintiff’s motion to extend time for service, plaintiff’s service of
defendants was untimely in violation of Rule 3 and 12 V.S.A. § 511.

       Based on the foregoing, defendants’ motion to dismiss is granted.



       Dated at Burlington, Vermont________________, 2004.
