Harkin

MEMORANDUM **

1. As of January 11, 1997, the facts underlying Harkin’s malpractice claim had all occurred, and Harkin had “diseover[ed] or through the use of reasonable diligence should have discovered” those facts. Mt. Code Ann. § 27-2-206. Thus, the claim accrued and the statute of limitations began to run on that date, and, unless tolled, the statute expired on January 11, 2000. See Spolar v. Datsopoulos, 314 Mont. 364, 367-69 , 66 P.3d 284 (2003).

Harkin’s claim is time-barred for two reasons. First, the tolling agreements entered into by Harkin and Best extended the statute of limitations until February 1, 2001. When Harkin filed suit, however, the malpractice claim was property of his bankruptcy estate. See In re Pace, 67 F.3d 187 , 191 n. 7 (9th Cir.1995). Harkin thus had no authority to prosecute the claim until the bankruptcy trustee assigned it to him on December 28, 2001-nearly eleven months after the expiration of the statute as extended by the tolling agreements. Second, the effects of the tolling agreements were specifically limited to Harkin and Best and did not benefit the bankruptcy estate. Harkin was thus assigned an already expired claim.

2. In light of the…