Rehearing and Rehearing En Banc Denied January 28, 1988.
LAY, Chief Judge.
This is a medical malpractice action in which jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332 (1982). Marilyn Hughes and her husband, Russell, citizens of Illinois, are suing the Mayo Clinic, Inc., et al. ("Mayo Clinic").
The defendants filed an answer and simultaneously served a demand for an affidavit of expert review pursuant to Minn. Stat.Ann. § 145.682. Because the Hugheses could not locate an expert who would state that the defendants had deviated from the applicable standard of medical care, Mayo Clinic moved for summary judgment. In response to the Mayo Clinic's motion, the Hugheses urged that the action was commenced on July 8, 1986, before the Minnesota statute became effective, and, alternatively that the malpractice was so obvious, as demonstrated by the X ray, that no expert opinion was required under Minn.Stat.Ann. § 145.682. The Hugheses base their argument on the express language of rule 3 of the Federal Rules of Civil Procedure, which states that an action is "commenced" when the complaint is filed with the court.
The district court, the Honorable Robert G. Renner, held that Minn.Stat.Ann. § 145.682 applied because the suit was not commenced under Minnesota law until the summons was served on the defendant. Minn.R.Civ.P. 3.01 (Supp.1987).
The district court reasoned that under Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), state law, rather than Fed.R.Civ.P. 3, governs the date of commencement. Since this court construes Walker differently than did the district court, however, we address
The relevant facts in Ragan and Walker were similar. In both cases, the plaintiff failed to serve the defendants within the time provided by the relevant state statute of limitations. In both opinions the Court construed the policies expressed in Erie as dictating that compliance with Fed.R.Civ.P. 3 does not toll the state statute of limitations. Walker, 446 U.S. at 750-51, 100 S.Ct. at 1985-86; Ragan, 337 U.S. at 532-33, 69 S.Ct. at 1234-35. The rule that evolved from those cases is that where there is no direct clash betwen federal and state procedural law, and the state procedural rule is an integral part of the state scheme, the state law requirements must be met. The Court reasoned that Fed.R.Civ.P. 3 as applied in Ragan was not intended to be so broad in scope so as to toll a state statute of limitations. Walker, 446 U.S. at 750-51, 100 S.Ct. at 1985-86; Ragan, 337 U.S. at 533, 69 S.Ct. at 1234-35.
While the Court found that the facts in Ragan and Walker did not present a direct clash with state law, in Hanna the Court found a direct, irreconcilable conflict. Hanna involved Fed.R.Civ.P. 4(d)(1), which permits service of process at respondent's home by leaving the summons and complaint with someone of suitable age and discretion. The person served need not be the defendant. Hanna, 380 U.S. at 461, 85 S.Ct. at 1138-39; Fed.R.Civ.P. 4(d)(1). In Hanna, the service of summons was made on the defendant executor's wife pursuant to rule 4. The applicable state law, however, required service of process to be personally delivered to the defendant. While the Court in Hanna enforced the federal rule on service of process rather than the Massachusetts rule, Walker made clear that Hanna did not overrule Ragan.
In the present case, the district court held that Walker required dismissal because the affidavit of expert review requirement is an integral part of the state's medical malpractice scheme. After analyzing the policies raised in Erie, Ragan, Hanna, and Walker, however, we conclude that rule 3 of the Federal Rules of Civil Procedure governs the date from which the Hughes' suit was commenced. Since Minn.Stat.Ann. § 145.682 does not apply to suits commenced prior to August 1, 1986, the requirement of expert review does not apply to the Hughes' suit.
Walker instructs us that "[t]he first question must therefore be whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court." Walker, 446 U.S. at 749-50, 100 S.Ct. at 1985. Justice Marshall, writing for the Court in Walker, also makes clear that only in cases of direct conflict between state and federal procedural rules does the Hanna analysis apply. Walker, 446 U.S. at 750 n. 9, 100 S.Ct. at 1985 n. 9. Walker does not require us to read Fed.R.Civ.P. 3 narrowly in order to avoid this conflict; rather, the Court instructs us that the federal rules are to be "given their plain meaning." Id. Thus, it is clear that rule 3 is sufficiently broad to control the issue of the date of the commencement of the action. Furthermore, there is a direct conflict
While an analysis of Ragan, Hanna, and Walker supports our holding, it is helpful to consider in addition the purpose behind rule 3. The Walker Court quoted approvingly from Professors Wright and Miller's treatise on federal practice, which states: "Rule 3 simply provides that an action is commenced by filing the complaint and has as its primary purpose the measuring of time periods that begin running from the date of commencement; the rule does not state the filing tolls the statute of limitations." Walker, 446 U.S. at 750 n. 10, 100 S.Ct. at 1985 n. 10 (emphasis added) (quoting from 4 C. Wright and A. Miller, Federal Practice and Procedure § 1057, at 191 (1969)).
The Hughes' action does not present a tolling problem. Even so, Justice Marshall's discussion of the policies involved in construing a federal-state procedural rule conflict in Walker is helpful. The Court states:
Walker, 446 U.S. at 751-52, 100 S.Ct. at 1985-86 (footnotes omitted).
The Hughes' suit does not raise the same policy issues as those addressed in Walker.
Moreover, we find the Hanna rule controls the applicability of rule 3 in this narrow, singular instance because it does not contravene the policy factors behind Erie. In Hanna, the Court wrote that the outcome-determinative test in Erie and York had to be read with reference to the twin aims of Erie: "discouragement of forum-shopping and avoidance of inequitable administration of the laws." Hanna, 380 U.S. at 468, 85 S.Ct. at 1142.
There was no forum shopping in this suit, and our holding will not promote forum shopping in the future. Here, as in Walker, there is no evidence that the plaintiffs filed in federal court in order to avoid those service requirements. The plaintiffs could have filed in state court, and, if they were aware of the new legislation, they could have sought an expedited service of process in the state court to assure service of summons before August 1. Furthermore, all suits commenced after August 1 will be governed by the Minnesota statute. Thus, there exists no great policy question governing future cases.
Second, there is no "inequitable administration of law" by our adherence to Fed.R.Civ.P. 3. If plaintiffs are unable to prove sufficient evidence of malpractice, they may face either summary judgment or a directed verdict. The best that might be said, by borrowing from Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), is that the Minnesota statute does not bear "on a State-created right vitally" and affects this diversity litigation only "formally or negligibly." Guaranty Trust, 326 U.S. at 110, 65 S.Ct. at 1470. Furthermore, the Hanna Court recognized, 380 U.S. at 467-74, 85 S.Ct. at 1141-46, as it did in Guaranty Trust, 326 U.S. at 108-11, 65 S.Ct. at 1469-71, and Cohen v. Beneficial Loan Corp., 337 U.S. 541, 555, 69 S.Ct. 1221, 1229-30, 93 L.Ed. 1528 (1949), that "the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems
For the reasons announced, the judgment of the district court is reversed and the cause remanded for further proceeding.