Robert C. Torre Sherrill M. Polk v. James R. Brickey, Jr.

Robert C. Torre and Sherrill M. Polk (plaintiffs) appeal pro se the district court’s grant of summary judgment in favor of defendant. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

BACKGROUND

On October 18, 1999, plaintiffs filed a complaint against defendant, invoking the district court’s diversity of citizenship jurisdiction under 28 U.S.C. § 1332 . Plaintiffs alleged that defendant, their former neighbor, committed an intentional battery against them on October 20, 1997. Plaintiffs did not serve defendant with summons until February 15, 2000, nearly four months after they filed their complaint.

Defendant moved for summary judgment contending that the action was untimely because it was not commenced within two years of the alleged battery. Under Oregon law, summons must be served within 60 days of filing the complaint in order for the action to commence as of the date the complaint is filed. The district court, applying Oregon law, held that the action was not commenced until February 15, 2000, when the summons was served, rather than on October 18, 1999, when the complaint was filed, because plaintiffs failed to serve the summons within 60 days…