Randy Gallagher, Plaintiff-appellant, v. Allied Weldery, Inc.; Wes Warren, Defendants-appellees, 972 F.2d 1339 (9th Cir. 1992)

MEMORANDUM^** 

Randy Gallagher, the appellant, argues that the district court erred when it failed to apply Idaho's "choice of law" rules in granting the appellees' motion for summary judgment. The court granted the motion on the ground that this diversity action was barred by Idaho's two-year statute of limitations, Idaho Code § 5-219.¹ 

Gallagher urges that we analyze the Idaho statute of limitations as a substantive rather than as a procedural provision, and thereby conclude that Montana's three-year statute of limitations applies under choice of law principles. However, the Supreme Court has squarely rejected any mandate that a statute of limitations be applied as a substantive rather than as a procedural rule where there is a choice of law issue in a diversity action.²  Sun Oil Co. v. Wortman, 486 U.S. 717, 726-729 (1988). See also, FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 487 (9th Cir. 1991) (citing with approval a Texas district court opinion that a statute of limitations is procedural in nature); Alberding v. Brunzell, 601 F.2d 474, 476 (9th Cir. 1979) (observing that "statutes of limitations are a procedural matter governed by the law of the forum.").

The most recent Idaho case, which relies on a decision of Idaho's Supreme Court, states:

Our initial inquiry involves a choice of laws. We must determine whether to apply the laws of Alberta, Canada, the jurisdiction in which the action arose, or those of this state, wherein the present action is being prosecuted. In general, the forum applies its own statutes of limitation to actions before it. Miller v. Stauffer Chemical Co., 99 Idaho 299, 301, 581 P.2d 345, 347 (1978). Thus, a foreign plaintiff is subject to Idaho's limitation periods, except as otherwise provided by statute.

Attorney General of Canada v. Tysowski, 118 Idaho 737, 800 P.2d 133, 135 (Idaho App.1990).

The district court was bound to apply Miller and Tysowski. Bancorp Leasing & Fin. Corp. v. Agusta Aviation Corp., 813 F.2d 272, 274 (9th Cir. 1987) (a federal court with diversity jurisdiction must decide the issues as though it were a state court). Moreover, we vacated Jenkins v. Armstrong World Industries, Inc., 643 F. Supp. 17 (D. Idaho 1985), in which the federal district court, in contrast to Miller and Tysowski, found Idaho's statute of limitations was substantive. Meyer v. Armstrong World Industries, Inc., 820 F.2d 329 (9th Cir. 1987). Gallagher's appellate brief should have revealed that fact instead of discussing Jenkins at length.

For these reasons, the district court's order granting summary judgment was proper.

AFFIRMED.