Woerter v. Rosenthal
WOERTER v. ROSENTHAL
- Proceeding
- district
- Area
- civil
- Panel
- Connor (author)
Analysis
The defendant moved for summary judgment on the ground that the statute of limitations barred the plaintiff's action on a promissory note. The court denied the motion, holding that the complaint's allegation that the defendant had not resided in California for four years raised a genuine issue of fact regarding the tolling of the statute of limitations.
| What the court decided | The model |
|---|---|
Motion for summary judgment denied“The motion of the defendant is denied.” | agree with court The court correctly applied the standard for summary judgment under Rule 56. The complaint contained an allegation that the defendant had not resided in California for four years since the cause of action accrued. Under California law (and general principles of limitations law), the absence of a defendant from the state can toll the statute of limitations. Because the complaint alleged facts that, if true, would toll the statute, a genuine issue of material fact existed as to whether the action was time-barred. Therefore, summary judgment was inappropriate. |
The order itself: sound — The order is sound. It correctly distinguishes between a motion to dismiss (where the face of the complaint controls) and a motion for summary judgment (where affidavits and evidence are considered). It identifies a specific allegation in the complaint (defendant's non-residence) that creates a factual dispute regarding the tolling of the statute of limitations. It cites appropriate contemporary authorities for the Rule 56 standard. The reasoning is concise but legally accurate for the time.
Opinion — Connor
J. F. T. O’CONNOR, District Judge.
This is an action on a promissory note for $13,964.97 with interest. The defendant answered and, among other defenses, interposed the bar of the statute of limitations. Thereafter, the defendant moved for summary judgment. Said motion raises the issue of the statute of limitations.
This court has heretofore considered the question of interposing the statute of limitations as a bar to recovery under a motion to dismiss where the facts alleged in the complaint clearly established that the action was barred by the statute of limitations. Wright v. Bankers Service Corporation, D.C., 39 F.Supp. 980; Wright v. Gibson, 9 Cir., June 15, 1942, 128 F.2d 865. Also, Abram et al. v. San Joaquin Cotton Oil Co., D.C., 46 F.Sup.p. 969, filed June 3, 1942. Several authorities are cited in each of the foregoing cases. However, the complaint alleges: “ * * * plaintiff is informed and believes, and on such information and belief alleges that the defendant has not resided within the State of California for a period of four years since the accrual of the cause of action herein sued upon.”
This allegation in the complaint raises a question of fact as to whether or not the statute of limitations is a bar to the action, and the issue, therefore, cannot be determined upon affidavits.
Federal Rules of Civil Procedure, rule 56 (c), 28 U.S.C.A. following section 723c; Chemical Foundation, Inc., v. Universal-Cyclops Steel Corporation, United States District, D.C.W.D.Pa., April 2, 1942, 2 F.R.D. 283; McElwain v. Wickwire Spencer Steel Co., 2 Cir., Feb. 21, 1942, 126 F.2d 210; 3 Moore’s Federal Practice, page 3184, § 56.04.
The motion of the defendant is denied.
Cites, in this corpus
- Wright v. Bankers Service Corporation 8451 · 1941-07-12