9. P (a citizen of New York) files a complaint against D (a citizen of New Jersey) in the Federal District Court for the District of New Jersey on January 1, 2005. P’s complaint is for battery. P alleges that D, a New Jersey state trooper, committed battery in connection with D’s arrest of P in New Jersey on January 2, 2003. P serves D in hand while D is at his office in New Jersey. This manner of service is adequate under New Jersey law. D makes a pre-answer motion to dismiss on the grounds of inadequate service. This motion is denied by the court. D then serves an answer on P. The answer includes the defense that P’s action is outside New Jersey’s 2 year statute of limitations. Under New Jersey law, a statute of limitations is tolled on service. D’s answer also includes a counterclaim against P for breach of an unrelated contract. Which of the following is most accurate?
a. D’s statute of limitations defense should fail. D waived this defense putting a permissive counterclaim in his answer.
b. The district court was correct to deny D’s motion to dismiss for inadequate service. Because P’s action is under diversity, state service rules apply.
c. The district court was wrong to deny D’s motion to dismiss for inadequate service. According to Fed. R. Civ. P. 4(c)(2), “service may be effected by any person who is not a party and who is at least 18 years of age.”
d. D’s statute of limitations defense should fail because it was waived by not being joined with P’s motion to dismiss for inadequate service.
e. D’s statute of limitations defense should fail because, under federal law, a statute of limitations is tolled on filing, not service.