In S.J. v. Issaquah School District, December 11, 2006 for the United States Court of Appeals for the Ninth Circuit 470 F.3d 1288 held that federal law, rather than state law, applies to the time limit for serving the complaint. The Plaintiff filed a petition for review of an administrative agencies order but did not serve summons until after 30 days had elapsed. The state had a statute which provided that a petition for review must be filed and served within 30 days of the final order by a state administrative agency.
A district court concluded that service came too late and dismissed the suit on the basis that it lacked jurisdiction.
In reversing and remanding the Court of Appeals said:
“We have previously held that Rule 3 of the Federal Rules of Civil Procedure controls when an action which arises under federal law is “commenced” for purposes of tolling the statute of limitations borrowed from state law. Sain v. City of Bend, 309 F.3d 1134, 1136 (9th Cir. 2002). It follows that federal procedural rules thereafter govern the action, at least when there is a federal rule to apply. There is, because Rule 4(m) of the Federal Rules of Civil Procedure provides a time limit for service of process (120 days). Accordingly, we hold that a federal court borrowing a state’s time period for filing suit brought under federal law should not also borrow the state’s time limits for serving the complaint. As S.J.’s IDEA action was timely commenced for purposes of tolling the borrowed statute of limitations when it was filed within 30 days, we reverse.”