On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-3883.
Before: HIGGINBOTHAM and SLOVITER, Circuit Judges, and ROTH, District Judge.*fn*
In West v. Conrail, 481 U.S. 35, 107 S. Ct. 1538, 95 L. Ed. 2d 32 (1987), the United States Supreme Court explained the significance of its decision in DelCostello v. Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). In West, the Court noted that DelCostello had filled a gap in federal law by determining that the six-month limitations period prescribed in § 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b) (1982), should be applied to hybrid claims under § 301 of the NLRA, 29 U.S.C. § 185 (1982). The Court went on, however, explicitly to hold that it did not intend, by so filling a gap in the federal law, "to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b) of the National Labor Relations, Act. West v. Conrail 481 U.S. at 38, 107 S. Ct. at 1541. Rather, the Court found that "Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service ad the period within which service must be made." Id. Rule 4(j) of the Federal Rules requires that service normally be made within 120 days of filing. Id.
Here, the parties concede that appellant's cause of action under § 301 accrued on January 7, 1985 at the earliest. The parties also concede that appellant filed his claim on July 3, 1985, in accordance with Rule 3, and within six months of the accrual of his claim. It is also agreed that appellee was served with the complaint no later than July 16, 1985, within 120 days from July 3, 1985, in accordance with Rule 4(j) of the Federal Rules, and in accordance with all other provisions of Rule 4. Since West establishes that valid Rule 4 service is valid service for purposes of § 301, and since appellant properly filed under Rule 3 within the DelCostello period, appellant's claim was not time-barred. See West v. Conrail, 820 F.2d 90 (3d Cir. 1987) (per curiam) (service valid under Rule 3 and Rule 4 is valid service for hybrid claims).
Accordingly, the district court's order granting summary judgment for appellee because the action was untimely will be reversed in light of West and this case remanded to the district court for ...