229 S.W.3d 23 (2006)
STATE of Arkansas, ex rel., ARKANSAS DEPARTMENT OF PARKS AND TOURISM, Appellant,
v.
Dr. Leroy O. JESKE, Trustee of the Trudy J. Jeske Revocable Trust Dated May 28, 1991, Appellee.
No. 05-684.
Supreme Court of Arkansas.
February 16, 2006.
*24 Mike Beebe, Att'y Gen., by: Don K. Barnes, Ass't Att'y Gen., Little Rock, for appellant.
Cypert, Crouch, Clark & Harwell, by: Marcus W. Van Pelt, Springdale, for appellee.
DONALD L. CORBIN, Justice.
Appellant State of Arkansas, ex rel., Arkansas Department of Parks and Tourism appeals the order of the Benton County Circuit Court dismissing its complaint for condemnation of land owned by Appellee Dr. Leroy O. Jeske, Trustee of the Trudy J. Jeske Revocable Trust dated May 28, 1991. On appeal, Appellant argues that it was error for the trial court to dismiss its complaint on the basis that it did not follow the procedures set forth in Ark.Code Ann. § 22-4-106 (Repl.2004), because it was not required to follow those procedures. Appellant also argues that the trial court erred in dismissing its suit on the basis that there was no evidence that the grant funding the condemnation was properly disbursed. We find no error and affirm.
On May 10, 2004, Appellant filed its complaint, pursuant to Ark.Code Ann. *25 §§ 22-4-102 (Repl.2004) and 22-4-103(1)(A) and (B) (Repl.2004), stating its intent to acquire and incorporate into Hobbs State Park certain lands owned by Appellee and situated in Benton County. According to the complaint, the lands were needed for future campgrounds and trails according to the long-range development plan approved by the Arkansas State Parks Recreation and Travel Commission. The complaint prayed that title to the lands be vested in Appellant.
That same day, Appellant also filed a "Declaration of Taking" averring that the property at issue, as well as its access rights, was condemned and taken under the power of eminent domain and the police power pursuant to Article 2, Sections 22 and 23 of the Arkansas Constitution, as well as sections 22-4-102 and 22-4-103(1)(A) and (B). According to this declaration, the public use for which the property and access rights were taken was to provide and maintain an adequate state park at Hobbs State Park. The declaration further stated that $547,000.00 was the amount estimated to be just compensation for the property and access rights and that such money had been deposited into the Registry of the Court.
On May 10, 2004, the circuit court entered an "Order For Delivery Of Possession," finding that Appellant was entitled to possession of the lands described in the complaint and that the amount of money deposited into the Registry of the Court was just compensation based on the appraised value of the property.
Appellee filed an answer on June 8, 2004, denying that Appellant was entitled to condemn and take the property described in the complaint. He also denied that there was any public necessity for the taking. Appellee also pled affirmatively that the complaint should be dismissed, pursuant to Ark. R. Civ. P. 12(b)(6), and requested that the Order of Possession be set aside because of Appellant's failure to state facts upon which relief could be granted. Specifically, Appellee stated that Appellant failed to allege that it had complied with the requirements of section 22-4-106.
Appellant subsequently filed a motion for summary judgment, arguing that the funding for the acquisition at issue was obtained through a grant from the Arkansas Natural and Cultural Resources Council (ANCRC) and not section 22-4-106; thus, it was not required to comply with the requirements of that code section. Attached in support of its motion was the affidavit of Greg Butts, Director of Arkansas State Parks. Therein, Mr. Butts averred that the acquisition of Appellee's land was approved by the ANCRC and that the appropriation for the grant from the ANCRC was made by Act 1102 of 2001.
Appellee filed a response to the motion arguing that Appellant was not entitled to summary judgment and requested that the trial court rule on its motion to dismiss filed pursuant to Rule 12(b)(6).
On February 2, 2005, the trial court entered an order dismissing Appellant's complaint. In so ruling, the trial court found that Appellant had failed to state a cause of action for which relief may be granted. The trial court noted that the grant funding the acquisition had a project beginning date of July 1, 2002, and an ending date of June 30, 2003, but that Appellant did not file its complaint until May 10, 2004. The court further noted that there was no evidence in the record that Appellant had filed an application for extension of the grant or that any such extension had been approved. Relying on the bylaws of the ANCRC, as well as certain sections of Act 1102, the appropriations act that was the source of the grant *26 at issue here, the trial court stated that Appellant was required to comply with all applicable state laws in attempting to acquire Appellee's land. The trial court ultimately concluded that Appellant failed to follow the procedures set forth in section 22-4-106 and, thus, dismissal of its complaint was warranted. The trial court further noted that the bylaws of the ANCRC and section 31 of Act 1102 required Appellant to follow applicable state law in acquiring property. Finally, the trial court ruled that the Order of Possession was void ab initio and therefore set it aside.
Appellant filed a motion for reconsideration on February 14, 2005. Therein, Appellant stated that it had attached exhibits to its motion for summary judgment establishing that the grant was proper under the policies of the Department of Parks and Tourism, as well as the ANCRC.[1] Appellant further averred that the grant had been extended by an appropriation in Act 1605 of 2003. Attached to the motion for reconsideration was a copy of the application seeking extension of the grant.
A second order was entered by the trial court on February 25, 2005, denying Appellant's motion for reconsideration. In that order, the trial court found that the supporting material submitted by Appellant with regard to the grant extension was untimely pursuant to Ark. R. Civ. P. 56(c)(1). The trial court again determined that Appellant had failed to comply with the procedures set forth in section 22-4-106, as well as the requirements of the ANCRC bylaws and section 31 of Act 1102. This appeal followed.
Before turning to the merits of the arguments raised in the instant appeal, we must first determine the appropriate standard of review. In its order, the trial court granted Appellee's motion to dismiss pursuant to Rule 12(b)(6). In that same order, however, the trial court stated that it reached its findings after reviewing the "Plaintiff's Motion for Summary Judgment, the Defendant's response to the Motion for Summary Judgment, the Briefs in support thereof, and the Defendant's Motion to Dismiss[.]" Included as exhibits to those pleadings were affidavits, a copy of the ANCRC's bylaws, copies of the applicable acts, and other supporting materials. The trial court specifically referred to these materials in its order; thus, because the trial court considered matters outside the pleadings, we will review this case as we would an appeal from an order granting summary judgment. See Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005).
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005); Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most *27 favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
As its first point on appeal, Appellant argues that the trial court erred in dismissing its complaint pursuant to Rule 12(b)(6), on the basis that it failed to follow the procedures set forth in section 22-4-106, because it was not required to follow those procedures. Specifically, Appellant argues that the funding for the acquisition in the instant case stemmed from an appropriation in Act 1102, which was subsequently renewed by Act 1605. Thus, according to Appellant, these appropriation acts are more specific legislation than section 22-4-106, and the more specific legislation should control.
Appellee counters that Appellant was required to follow the dictates of section 22-4-106 and its failure to state in its complaint that it had followed such procedures rendered the complaint defective, so that dismissal was warranted. Additionally, Appellee argues that the appropriations of Acts 1102 and 1605 were nothing more than general appropriations to the Department of Arkansas Heritage and did not specifically authorize the acquisition of the land in this case. Moreover, according to Appellee, nothing in the appropriations acts governs the procedures to be utilized by Appellant when acquiring land. Finally, Appellee points out that the trial court correctly determined that the bylaws of the ANCRC require an agency applying for acquisition funds to submit or have on file with the ANCRC the procedures required for acquisition.
We begin our analysis of this point by observing that we review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005); Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002). Thus, although we are not bound by the trial court's interpretation, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.
We recently articulated our rules of statutory interpretation in Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). Therein, we stated that:
The basic rule of statutory construction is to give effect to the intent of the legislature. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language, and the subject matter involved. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible.
Id. at 289, 213 S.W.3d at 614 (citations omitted).
Remaining mindful of these principles, we turn to the provisions at issue in the *28 instant case. Pursuant to section 22-4-103, the State Parks, Recreation and Travel Commission, shall have the sole authority:
(1)(A) To acquire in the name of the state by purchase, lease, or agreement such land within the state as it may deem necessary or proper for the extension, development, or improvement of the state park system.
(B) If the department is unable to agree with the owner of the land, or if by legal incapacity or absence of the owner, no agreement can be made for the purchase, the land may be acquired by condemnation proceedings instituted in the name of the state in the manner provided by law for the condemnation of property for public purposes. [Emphasis added.]
Section 22-4-106 sets forth the procedures for establishing state park property and provides in relevant part:
(a) The Department of Parks and Tourism and the State Parks, Recreation, and Travel Commission are directed to consult with and seek the advice of the Governor, the Director of the Department of Finance and Administration, and the Legislative Council before establishing and acquiring properties for new state parks or before making acquisitions of real property for additions to or expansions of existing state parks which have not been specifically authorized or funded by the General Assembly.
(b) The advice of the Governor, the director, and the Legislative Council shall be sought in writing by the department or the commission at least sixty (60) days prior to the final approval by the commission of any formal action to establish a new state park or to make acquisitions of real property for additions to or expansions of existing state parks if the action has not previously received specific legislative authorization.
According to Appellant, it was not required to follow the dictates of this section because the source of funds used to acquire Appellee's land was a grant from the ANCRC that was funded by Act 1102. Appellant avers that the appropriation set forth in Act 1102, and renewed in Act 1605, are the more specific provisions and, thus, should control over the more general provisions of section 22-4-106. We disagree.
A review of Act 1102 reveals that it is an appropriations act "for personal services and operating expenses for the Department of Arkansas Heritage[.]" Section 22 sets forth an appropriation of $12,000,000.00 for "grants/aids for state-owned lands or historic sites" to the ANCRC for the biennial period ending June 30, 2003. Section 28 provides that the Director of Arkansas Heritage shall be the disbursing officer for the appropriation set out in Section 22 and allows for transfer of such appropriation to a state agency. Section 31 further provides that disbursements of funds authorized by the act shall be in compliance with other state laws. Act 1605, which extended the ANCRC grant program until the biennial period ending June 30, 2005, provided a general appropriation of $14,000,000.00.
Nothing in Acts 1102 or 1605 specifically provided funding for Appellant to acquire Appellee's land. Moreover, nothing in either of those acts set forth any criteria to be followed in acquiring certain lands, other than to state that disbursements were to comply with other applicable state laws. Therefore, we cannot say that these acts constitute more specific legislation thereby negating any requirement that Appellant follow the procedures set out in section 22-4-106 for acquiring lands for additions or expansions of existing state parks.
*29 In fact, the appropriations set out in Acts 1102 and 1605 can be read harmoniously with the provisions of section 22-4-106. Clearly, the acts provide the funding mechanisms for Appellant to acquire additional lands, while section 22-4-106 establishes the procedures to be followed by Appellant when it attempts to acquire such lands. As we previously stated, we will interpret legislation relating to the same subject matter in a harmonious manner if possible. See Rose, 363 Ark. 281, 213 S.W.3d 607.
Our conclusion in this regard is further supported by a review of Act 729 of 1987, now codified at Ark.Code Ann. § 15-12-101 (Repl.2003), which established the ANCRC. Section 5 of that act reads in pertinent part:
It is not the intention of this Act that the said Council shall itself manage, operate, or maintain any lands so acquired, but, rather, that it shall, from time to time in its own discretion, make grants to other agencies of the State authorized by law to acquire, manage, for operate [sic], and maintain such lands.
Article XII, § III.G.3 of the ANCRC's bylaws, provides in pertinent part that: "agencies applying for acquisition funds must submit or have on file with the Council the procedures required for acquisition by their respective board, commission, or council, and verify that such procedures have been met." It is therefore clear to us that the role of the ANCRC in acquiring lands is limited to establishing grants for such acquisitions. More importantly, such grants are contingent on an agency following other applicable state laws, such as section 22-4-106.
Finally, we are not persuaded by Appellant's contention that following the requirements of section 22-4-106 in obtaining written approval from the Governor, Director, and Legislative Council is redundant where the acts funding the condemnation were approved by the legislature and the Governor. Again, we reiterate that the provisions of Acts 1102 and 1605 were nothing more than general appropriations to the ANCRC to be used to establish grants. The Governor and the General Assembly never reviewed or approved the particular condemnation at issue in this case. Thus, there is no redundancy in requiring such approval before the State is allowed to proceed to condemn and acquire the property.
In sum, if we were to accept Appellant's argument that section 22-4-106 was not applicable, we would be ignoring our prior case law holding that statutes that relate to the power of eminent domain should be strictly construed in favor of the landowner. See Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714 (2001); Columbia Cty. Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979). This we will not do.
Accordingly, we cannot say that the trial court erred in dismissing Appellant's cause of action on the basis that it failed to follow the procedures for condemnation established by section 22-4-106.
As a second point, Appellant argues that the trial court additionally erred in dismissing its complaint on the basis that there was no evidence that it had filed for an extension of the grant established by Act 1102. In this regard, the trial court noted that the appropriation established in Act 1102 expired on June 30, 2003, but that Appellant did not file its complaint in the instant action until March 10, 2004. Appellant argues, however, that it submitted proof that this appropriation was extended by Act 1605, until the period ending June 30, 2005. Thus, according to *30 Appellant, the trial court erred in denying its motion for reconsideration on this basis.
Appellee counters that Appellant did not submit such proof until its response to Appellee's reply to the motion for summary judgment and, thus, such evidence was not timely and could not be considered by the court, pursuant to Rule 56(c).
Having determined that the trial court correctly dismissed this cause of action on the basis that Appellant failed to follow the requirements of section 22-4-106, it is not necessary for this court to address the merits of this argument on appeal.
Affirmed.
NOTES
[1]  Appellant first raised the issue that the grant had been extended through an appropriation in Act 1605 of 2003 in its reply to Appellee's response to the motion for summary judgment. Attached to the brief were the affidavits of Greg Butts and Randy Dennis stating that the grant had been properly extended, but the application for extension was not submitted to the court until Appellant filed the motion for reconsideration.


166 F.3d 1204
22 Employee Benefits Cas. 1843,Pens. Plan Guide (CCH) P 23,950DNorbert S. Belfer, Corrine Belfer, as Executrix of Estate ofNorbert S. Belfer, Deceasedv.Elaine Zee, Individually, as Plan Administrator of LightingWorld, Inc. Employees Profit-Sharing Plan, Delaware CharterGuarantee & Trust Company, Trustee of Lighting World, Inc.Employees Profit-Sharing Plan, Burce Belfer, Linda Merling,Marc Belfer, Lighting World, Inc.
NOS. 97-5725, 98-5153
United States Court of Appeals,Third Circuit.
September 22, 1998

1
Appeal From:  D.N.J.

2
Affirmed in part, Reversed in part.


    14-908
    Lin v. Lynch
                                                                                BIA
                                                                                Cheng, IJ
                                                                               A200 748 222
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    1st day of February, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    FENG LIN,
                   Petitioner,

                   v.                                                14-908
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Thomas V. Massucci, New York, New
                                         York.

    FOR RESPONDENT:                      Joyce R. Branda, Acting Assistant
                                         Attorney General; Melissa
                                         Neiman-Kelting, Senior Litigation
                               Counsel; Anthony J. Messuri, Trial
                               Attorney, Office of Immigration
                               Litigation, United States
                               Department of Justice, Washington,
                               D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

    Petitioner Feng Lin, a native and citizen of the People’s

Republic of China, seeks review of a March 6, 2014, decision

of the BIA affirming a May 24, 2012, decision of an Immigration

Judge (“IJ”) denying Lin’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”).   In re Feng Lin, No. A200 748 222 (B.I.A. Mar. 6, 2014),

aff’g No. A200 748 222 (Immig. Ct. N.Y. City May 24, 2012).      We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed both

the IJ’s decision and the BIA’s decision “for the sake of

completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

2008).     The    applicable    standards   of   review   are   well

established.     See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

                                  2
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).              Lin does not

challenge the finding that his asylum application was untimely

or the agency’s denial of CAT relief; accordingly we review the

agency’s adverse credibility determination only as it relates

to Lin’s application for withholding of removal.

    For asylum applications governed by the REAL ID Act, such

as Lin’s, the agency may, considering the totality of the

circumstances,      base   a   credibility      finding   on    an   asylum

applicant’s    “demeanor,       candor     or     responsiveness,”        the

plausibility   of    his   account,      and    inconsistencies      in   his

statements, without regard to whether they go “to the heart of

the applicant’s claim.”        8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).            We “defer

to an IJ’s credibility determination unless, from the totality

of the circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”            Xiu Xia Lin,

534 F.3d at 167.

    Substantial evidence supports the IJ’s determination that

Lin’s claim that he was persecuted on account of his Christian

faith was not credible.        In so finding the IJ relied on Lin’s

internally inconsistent testimony, inconsistencies between his
                                   3
testimony and his documentary evidence, and Lin’s demeanor when

testifying.   Lin originally testified that he was baptized

around Easter, in April 2011, but when confronted with his

baptism certificate, he confirmed that he was baptized in

October of that year.    Further, his explanation for failing to

remember changed: he first stated that he could not remember

the date because he was experiencing a good deal of stress in

the United States; he later testified that he intentionally did

not remember his baptism date because he felt that baptism was

just a ritual.

    Lin’s testimony also conflicted with his evidence.        He

testified that he was hospitalized after he was released from

detention in China and that a doctor issued a certificate saying

that he had soft tissue contusions.    However, he omitted this

entirely from his asylum application, and his parents did not

mention either his hospitalization or their search for the

hospital certificate in the letter they wrote in support of

Lin’s application.      Further, Lin testified that his parents

paid a fine upon his release from detention, but the fine receipt

he submitted lists Lin himself as the payer.

                                4
    A     finding   concerning       a     party’s     demeanor   is

“paradigmatically the sort of evidence that a fact-finder is

best positioned to evaluate.”    Li Zu Guan v. INS, 453 F.3d 129,

140 (2d Cir. 2006).    Accordingly, we give an IJ’s demeanor

finding “particular deference.”          Ji Chen v. U.S. Dep’t of

Justice, 426 F.3d 104, 113 (2d Cir. 2005).           Here, the record

supports the specific example the IJ cited in making that

finding – Lin’s long pause followed by a failure to answer a

question regarding his baptism.

    The totality of the circumstances support the agency’s

adverse credibility determination.         Because Lin’s claim for

withholding of removal depends upon his credibility, the

finding that he is not credible is dispositive of his petition.

Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2010).

    For the foregoing reasons, the petition for review is

DENIED.

                             FOR THE COURT:
                             Catherine O=Hagan Wolfe, Clerk

                                 5


(2008)
Andrea CHAPPETTA, Plaintiff,
v.
Israel SOTO, Defendant.
Civil Action No. 3:06cv1913 (SRU).
United States District Court, D. Connecticut.
September 29, 2008.

RULING ON MOTION FOR SUMMARY JUDGMENT
STEFAN R. UNDERHILL, District Judge.
This case raises fundamental questions about how Connecticut's accidental failure of suit statute, Connecticut General Statutes § 52-592, applies to actions commenced in federal court. Andrea Chappetta's initial lawsuit against Israel Soto failed because she did not serve Soto with her complaint alleging negligence within the two-year statute of limitations. Chappetta refiled her claims against Soto, contending that her claims are eligible to be "saved" by section 52-592 because her initial lawsuit was dismissed as untimely due to insufficient service. I conclude that, in light of the Connecticut Supreme Court's decision in Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), which distinguished "timely commencement" for purposes of section 52-592 from "timely commencement" for purposes of the statute of limitations, Chappetta may invoke section 52-592 to save her claims. Therefore, Soto's motion for summary judgment is denied.

I. Factual Background
On June 8, 2003, Soto and Chappetta were involved in a motor vehicle accident, which caused Chappetta to suffer personal injuries. In February 2005, Soto's insurance agent, Michael Cholowa of Progressive Insurance Company, offered to settle the claim with Chappetta's attorney. The parties did not settle, because they could not agree on a settlement figure.
On June 3, 2005, within the two-year statute of limitations, Chappetta filed her complaint in this diversity action, naming Soto, along with Regal Entertainment Group and Regal Cinemas, Inc., as defendants (Case No. 05cv896). On June 6, 2005, Chappetta mailed Soto a request for waiver of service of process, care of his insurer. Those materials included: a notice of lawsuit, a copy of the complaint, and a letter requesting that Progressive make arrangements to have Soto execute the waiver. After Soto refused to execute the waiver, Chappetta had Soto formally served with the summons and complaint on September 22, 2005, more than two years after the accident occurred.

II. Discussion

A. Standard of Review

Summary judgment is appropriate when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment). Here there are no genuine issues of material fact. The motion turns exclusively on an interpretation of Connecticut law.

B. Chappetta I
In Chappetta's initial suit, Civil Case No. 3:05cv896 (SRU), I granted summary judgment in favor of Soto. Soto argued that, because Chappetta failed to serve him within the two-year limitations period, Chappetta's suit was not commenced within Connecticut's statute of limitations. Although Chappetta timely filed her complaint in federal court, I held that her suit against Soto had not been timely commenced for statute of limitations purposes because Soto was not actually served until after the statute of limitations had expired. Chappetta v. Soto ("Chappetta I"), 453 F.Supp.2d 439, 442 (D.Conn.2006).
In reaching that conclusion, I first determined that, because the case was founded on diversity jurisdiction, Connecticut's statute of limitations and service rules governed. Id. (citing Converse v. General Motors Corp., 893 F.2d 513, 515 (2d Cir. 1990); Slekis v. National Railroad Passenger Corp., 56 F.Supp.2d 202, 204 (D.Conn.1999)). In Connecticut, personal injury suits alleging negligence must be brought within two years from the date the injury is first sustained or discovered. Conn. Gen.Stat. § 52-584. Furthermore, Connecticut follows the actual service rule, meaning a lawsuit is only "commenced" upon actual service on the defendant. Palacio v. Munies, 1999 WL 608818, at *2 (D.Conn.1999). Therefore, because Chappetta actually served Soto on or after September 22, 2005, more than two years after the accident occurred, I concluded Chappetta's claims against Soto were untimely and granted summary judgment.
Chappetta initiated this separate action by refiling her claims against Soto in November 2006. She contends that she is eligible to proceed on the merits pursuant to Connecticut's accidental failure of suit statute (hereinafter, the "savings statute"), Conn. Gen.Stat. § 52-592, because her initial suit was dismissed as untimely due to insufficient service. Soto filed the pending motion for summary judgment shortly thereafter, arguing that her claims are time-barred and that she is not eligible to invoke the savings statute.

C. The Savings Statute and Rocco
Connecticut's savings statute provides, in pertinent part, that "[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, ... the plaintiff... may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." Conn. Gen.Stat. § 52-592(a). The parties do not dispute that Chappetta's initial action failed to be tried on the merits due to insufficient service, nor do they dispute that Chappetta filed the present action within one year after the initial action was dismissed.
Thus, the question raised by the present motion is whether Chappetta's initial suit meets the requirements of "timely commencement" for purposes of the savings statute so that her claims are saved pursuant to section 52-592. The Connecticut Supreme Court, in Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004), held that "commencement" for purposes of the statute of limitations is different than "commencement" for purposes of the savings statute. "[T]he language of § 52-592 distinguishes between the commencement of an action and insufficient service .... [and] cannot be construed to mean good, complete and sufficient service of process." Id. at 550-51, 848 A.2d 352. To determine whether Chappetta's initial suit was timely commenced for purposes of the savings statute, we must look to the Rocco decision.
The Rocco plaintiffs brought their initial action in the United States District Court for the District of Connecticut, alleging personal injuries arising out of a motor vehicle accident. Id. at 544-45, 848 A.2d 352. The accident occurred on July 18, 1998; the plaintiffs filed their complaint in federal court on July 6, 2000, within Connecticut's two-year statute of limitations for personal injury suits alleging negligence. Id. at 545, 848 A.2d 352. The plaintiffs then sought to serve the defendant, a Pennsylvania resident, pursuant to the request for waiver of service procedure established by Rule 4(d)(2) of the Federal Rules of Civil Procedure.[1]Id. In compliance with the requirements of Rule 4(d), the plaintiffs sent the defendant, via certified mail to her home address: the summons and complaint, two copies of a notice and request for waiver of formal service, along with a self-addressed, prepaid envelope for the return of the signed waiver. Id. at 546, 848 A.2d 352. According to the certified mail receipt, the materials were delivered to the defendant's home on July 14, 2000, four days before the expiration of the limitations period. Id. The defendant subsequently refused to sign the waiver request and the limitations period expired before the plaintiffs were able to formally serve the defendant pursuant to Rule 4(e) on September 13, 2000. Id. The federal District Court granted the defendant's motion for summary judgment on the ground that the plaintiffs had failed to timely commence their action before the expiration of the two-year statute of limitations because service was not formally made until September 2000. Id.
The Rocco plaintiffs subsequently commenced a second suit in Connecticut Superior Court, alleging the same cause of action against the defendant. Id. The defendant moved for summary judgment on the ground that the federal court action had not been timely commenced within the meaning of the savings statute due to a lack of proper service. The Superior Court granted the defendant's motion. Id. at 547, 848 A.2d 352. The plaintiffs appealed that ruling, arguing that their initial suit was timely commenced for purposes of the savings statute because the defendant received "clear and unmistakable notice" of suit via the delivery of the Rule 4(d) materials prior to the expiration of the limitations period. Id. The defendant argued that the savings statute was inapplicable to the plaintiffs' action because, in Connecticut, a suit is timely commenced only when the defendant is properly served. Id. at 547-48, 848 A.2d 352. Therefore, because the defendant had not been formally and properly served pursuant to Rule 4(e) until after the expiration of the limitations period, she argued, the savings statute did not apply. Id. at 548, 848 A.2d 352.
The Connecticut Supreme Court disagreed with the defendant, concluding that her interpretation of the savings statute would render it "meaningless." Id. at 548, 550, 848 A.2d 352. "If the savings statute requires effective commencement of the original action, and commencement requires valid service of process, as the defendant argues, then any failure of service of process would require us to conclude that no action had been commenced and that the statute does not apply." Id. at 550, 848 A.2d 352. The Court declared such an interpretation would render "superfluous" one of the statute's primary purposes: "to save those actions that have failed due to insufficient service of process." Id. Significantly, the Court noted that the language of the savings statute "distinguishes between the commencement of an action and insufficient service of process by providing that the action may fail following its commencement because of insufficient service." Id. (emphasis in original). "To accept the view that improper or insufficient service defeats such an action would undermine the statute's clear and unambiguous meaning and preclude the filing of a second action." Id. at 550-51, 848 A.2d 352. The Rocco Court thus concluded that commencement of an action for purposes of section 52-592 "cannot be construed to mean good, complete and sufficient service of process." Id. at 551, 848 A.2d 352.

D. Interpreting Rocco
The principal legal holding of Rocco is that the commencement of an action for purposes of the savings statute means something less than the commencement of an action for statute of limitations purposes. In all other respects, the Connecticut Supreme Court decided that case on its facts. The Court did not need to, and accordingly did not, state a general rule concerning when an action brought in federal court is commenced for purposes of the savings statute. It is my duty to predict, based on Rocco, how the Connecticut Supreme Court would decide this case.
One plausible reading of Rocco is that a federal court lawsuit has been commenced within the meaning of the savings statute only upon the defendant's receipt of actual notice of the suit. Such a reading receives support from the Rocco Court's statement that "we agree with the plaintiffs that the original action was `commenced' within the meaning of the savings statute when the defendant received effective notice of that action within the time period prescribed by § 52-584." Id. See also id. at 552, 848 A.2d 352 ("the plaintiffs' original action was `commenced' for purposes of the savings statute, when the defendant received actual notice of the action within the time period prescribed by the statute of limitations.").
In my view, however, the better reading of Rocco is that the Court held that the defendant's receipt of actual notice of the pendency of a federal court action is sufficient, but not necessary, to commence an action for purposes of the savings statute. In other words, by indicating that the action was commenced "when" the defendant received notice, the Court meant, that on that date, which was within the statute of limitations, the Rocco plaintiffs' action had been commenced; it did not mean that the action had been commenced because the defendant received actual notice or that the action was commenced by reason of the receipt of actual notice. Several aspects of the Rocco decision support this view.
First, the Court's discussion of the notice issue arose from its analysis of the requirements of the waiver of service provisions of Rule 4(d) of the Federal Rules of Civil Procedure. It recited the portion of Rule 4(d) that provides that any defendant who "receives notice of an action in the manner provided in [the rule] has a duty to avoid unnecessary costs of serving the summons." Id. at 551, 848 A.2d 352; see generally id. at 551-52, 848 A.2d 352. The Court explained that all of the items "required under rule 4(d)(2) to effect service of process ... had been delivered to the defendant ... four days before the two year statute of limitations had expired." Id. at 552, 848 A.2d 352.
Second, the Court strongly suggested that Rocco was an easy case, not one close to the line. Significantly, the Court noted that, "[b]y following the procedure set forth in rule 4(d)(2) to obtain a waiver of formal service from the defendant, the plaintiffs, for all practical purposes, also satisfied the requirements of state law pertaining to formal service of process." Id. at 553, 848 A.2d 352. In other words, "for all practical purposes," the statute of limitations was met. An action has certainly been commenced within the meaning of the savings statute if the statute of limitations has actually or practically been met.[2]
The Rocco plaintiffs satisfied the statute of limitations "for all practical purposes" because of the manner in which an action is commenced in Connecticut state court. In Connecticut, before filing the complaint in court, the plaintiff must serve the defendant with a writ of summons and the complaint Conn. Gen.Stat, § 52-45a.[3] The plaintiff must retain a "proper officer" to formally serve the defendant, which generally means a state marshal, constable, sheriff, or sheriff's deputy. Conn. Gen.Stat. § 52-50. Proper service requires either "in hand" service, where the officer literally hands the defendant a copy of the summons and complaint, or "abode" service, where the officer leaves the summons and complaint at the defendant's home or any place "where he would most likely have knowledge of service of process." Conn. Gen.Stat. § 52-57(a); Plonski v. Halloran, 36 Conn.Supp. 335, 420 A.2d 117, 117 (1980) (citing Clegg v. Bishop, 105 Conn. 564, 569, 136 A. 102 (1927)). The purpose of abode service "is to ensure actual notice to the defendant that the action is pending." Hartford Nat'l Bank & Trust Co. v. Tucker, 178 Conn. 472, 479, 423 A.2d 141 (1979). Once the officer makes service, he or she completes the "return of service," or "writ of return," which is used to prove that the defendant was properly served. Conn. Gen.Stat. § 52-46a; Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123 (2006) ("[W]e look to the facts described in the sheriffs return to demonstrate compliance with the requirements for service of process. `The return is prima facie evidence of the facts stated therein.'") (quoting Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390, 132 A.2d 573 (1957)). A plaintiff then initiates the action in Connecticut Superior Court by "returning" to court for filing the completed writ of return, along with the original summons and complaint. Until that point in time there has been no action pending in the state court, nor has a docket number been assigned. It therefore makes sense that, under Connecticut practice, an action is commenced for purposes of the statute of limitations when the defendant is served, rather than when complaint is filed, because that is what occurs first.[4]See, e.g., Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996) ("This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant."); Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974) ("[A]n action is commenced not when the writ is returned but when it is served upon the defendant."). In federal court, in contrast, the complaint is filed first, then served along with the summons, and the return of service serves only to prove service has been made, not to open a court case.
Finally, the Rocco Court noted these significant differences between the commencement of an action in federal and state court. The Court explained: "the plaintiffs filed the complaint in the District Court, as required under the federal rules, prior to the issuance of the signed and sealed summons. Accordingly, there is ample support for our conclusion that the original action was commenced in a timely manner within the meaning of the savings statute." Id. (citation omitted). The Court seemed in the quoted passage to acknowledge as significant the fact that a case is opened and pending in federal court upon the filing of the complaint, with service made only thereafter. In a real sense, therefore, an action is commenced in federal court upon filing; indeed, with federal court cases other than diversity of citizenship cases, the statute of limitations is satisfied upon the filing of the complaint rather than service of process. Although commencement in the sense of opening a federal court case and assigning a docket number does not satisfy the statute of limitations under Connecticut law, the Rocco Court suggested that it might constitute "commencement" of an action for purposes of the savings statute.
For the foregoing reasons, I conclude that a federal court action is commenced for purposes of the savings statute when it is filed. If an action governed by Connecticut law is filed in federal court within the statute of limitations, but is not properly served pursuant to Connecticut law so that it has not been timely commenced for purposes of the statute of limitations, the savings statute permits it to be brought again within one year.

E. Application to Chappetta's Suit

Chappetta satisfied the savings statute's requirement that her lawsuit be "timely commenced" when she filed her complaint in federal court prior to the expiration of the statute of limitations, despite failing to successfully serve Soto before the limitations period lapsed. Her lawsuit later failed because of insufficient or improper service. Thus, Chappetta meets the requirements of the savings statute; her claims against Soto are "saved" and may proceed on the merits.

III. Conclusion
For the foregoing reasons, Soto's motion for summary judgment (doc. # 10) is DENIED.
It is so ordered.
NOTES
[1]  At the time Rocco was decided, the pertinent provisions were codified as Rule 4(d)(2). Those same provisions have subsequently been redistributed into Rule 4(d)(1) and (d)(2). For clarity's sake, I will refer to those provisions as Rule 4(d).
[2]  In Rocco, the Connecticut Supreme Court could not review the correctness of the ruling that the initial action had not been commenced within the statute of limitations, because that ruling was made by the District Court, not by a Connecticut Superior Court. Res judicata would have prevented the Supreme Court from reaching the issue, in the event it disagreed. There is nothing to be gained from speculating what the Supreme Court might have done had it been able to review the statute of limitations issue; the point is simply that the Court noted just how close the Rocco plaintiffs came to satisfying the statute of limitations.
[3]  Connecticut General Statutes § 52-45a states that "[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint." This is also known as "mesne process." Connecticut Practice Book, § 8-1.
[4]  In federal court, however, the opposite occurs. The plaintiff files his or her complaint first, and then seeks service of process on the defendant. In federal question actions, the suit is considered timely commenced if it is filed before the expiration of the statute of limitations. Henderson v. United States, 517 U.S. 654, 657 n. 2, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) ("In a suit on a right created by federal law, filing a complaint suffices to satisfy the statute of limitations."). Rule 4(m) provides that the plaintiff has 120 days to serve the defendant after the complaint has been filed.


138 B.R. 413 (1992)
In re Soly SROUR, Debtor.
The CIT GROUP/FACTORING MANUFACTURERS HANOVER, INC. successor to the CIT Group/Factoring Meinhard-Commercial, Inc., Plaintiff,
v.
Soly SROUR, Defendant.
Bankruptcy No. 90 B 20296, No. 90 ADV. 6070.
United States Bankruptcy Court, S.D. New York.
April 1, 1992.
*414 Marc Stuart Goldberg & Associates, P.C., New York City, for debtor.
Strassberg & Strassberg, P.C., New York City, for plaintiff.
DECISION ON AMENDED COMPLAINT, MOTION FOR ORDER DISMISSING AMENDED COMPLAINT AND CROSS-MOTION FOR SUMMARY JUDGMENT
HOWARD SCHWARTZBERG, Bankruptcy Judge.
Soly Srour ("Srour"), the debtor in this voluntary Chapter 7 case, has moved in accordance with Federal Rule of Civil Procedure 12(c) and Federal Rule of Bankruptcy Procedure 7012 to dismiss the amended complaint of CIT Group/Factoring Manufacturers Hanover, Inc. ("CIT"), a judgment creditor, in an adversary proceeding brought on by CIT to deny Srour's discharge pursuant to 11 U.S.C. §§ 727(a)(2) and (4). Srour asserts that CIT's amended complaint objecting to discharge must be dismissed as untimely under Federal Rule of Bankruptcy Procedure 4004(a) because it was filed more than 60 days after the initial meeting of creditors. In addition, Srour argues that this court should dismiss CIT's amended complaint under Federal Rule of Civil Procedure 41 and Federal Rule of Bankruptcy Procedure 7041 because CIT failed to pursue diligently the action that it had commenced.
CIT opposes the debtor's motion for several reasons. CIT asserts that the amended complaint is not time barred under Rule 4004 because the original complaint, which was timely filed, apprised Srour of the facts and circumstances upon which the objection to discharge under 11 U.S.C. § 727 is based. CIT also contends that its amended complaint should not be dismissed under Rule 4004(a) for failure to prosecute because Srour and his attorney, Marc Stuart Goldberg ("Goldberg"), are responsible for delaying the action. CIT further argues that Srour's motion to dismiss the action for failure to prosecute is procedurally defective because Srour did not provide *415 the United States Trustee with notice of the motion as required by Rule 7041. CIT has made a cross-motion for summary judgment on its amended complaint to deny Srour's discharge pursuant to Federal Rule of Civil Procedure 56 and Bankruptcy Rule 7015.

FACTUAL BACKGROUND
Srour and his wife, Jean Srour, residents of Larchmont, New York, were the sole shareholders and officers of Status Signature, Inc. ("Status"), a corporation in the business of manufacturing clothing. Status entered into a factoring agreement with CIT Group/Factoring Meinhard-Commercial, Inc. the predecessor of CIT, the plaintiff in this case. Pursuant to that agreement, Status' obligations to CIT were guaranteed both by Srour personally and by Ingram Collection, Ltd. ("Ingram"), an affiliated corporation. The agreement also granted CIT a security interest in all of Status' accounts receivable, the proceeds thereof, as well as all goods relating to such accounts receivable. Status ceased operating in June, 1987.
In January, 1989, CIT sued Status in New York State Supreme Court for defaulting on the factoring agreement. Srour and Ingram were also named as defendants in that action based upon their guaranties of Status' debts. On October 4, 1989, as a result of CIT's lawsuit, the parties entered into a consent judgment in favor of CIT in the amount of $4,873,303.00.
Srour filed with this court a petition for relief under Chapter 7 of the Bankruptcy Code on April 10, 1990. Thereafter, CIT timely filed a proof of claim with the court in the amount of the judgment. CIT filed a complaint in an adversary proceeding to declare Srour's debt nondischargeable under 11 U.S.C. § 523(a)(4) on June 15, 1990. Three days later, the meeting of creditors, mandated by 11 U.S.C. § 341(a), took place. Following the meeting, Eric Kurtzman, the Chapter 7 trustee, filed with the court a no-asset report. Kurtzman was then discharged as trustee. Srour has not yet obtained his discharge.
In its original complaint, CIT asserts six claims for relief on its cause of action against Srour under 11 U.S.C. § 523(a)(4). In all of the claims, CIT essentially alleges that Srour diverted property from Status in 1987, when it was insolvent. CIT claims that in 1987 Srour gave office equipment belonging to Status, upon which CIT had a security lien, to Touro College and that Srour deducted the donation as a charitable expense on his personal income tax return. CIT also argues that Srour and his wife received excessive salaries from the corporation and that Srour provided his wife with a "no show" job at Status. In addition, CIT claims that Srour obtained his 1978 Mercedes automobile from Status for little or no consideration which he listed as exempt property on his Chapter 7 petition. CIT also alleges that during Status' insolvency, either Srour or his wife, insiders under 11 U.S.C. § 101(31), borrowed $64,396.00 from the company.
Srour answered CIT's complaint on August 17, 1990. His time to answer had previously been twice enlarged, with CIT's consent. Thereafter, on October 4, 1990, CIT moved in this court to amend the complaint. Srour made a cross-motion to dismiss the complaint for failure to state a cause of action and failure to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b). On November 5, 1990, after a hearing, the court granted Srour's cross-motion and gave CIT leave to replead within thirty days after entry of an order. CIT's motion to amend the complaint was dismissed as moot. An order reflecting the court's decision was entered on January 2, 1991.
On January 11, 1991, CIT served an amended complaint with the caption First Amended Complaint Objecting To Discharge. In the amended complaint, CIT objects to the debtor's discharge pursuant to 11 U.S.C. §§ 727(a)(2) and (4). The amended complaint sets forth nine causes of action. The set of facts upon which CIT bases its first five claims for relief in the amended complaint are substantially the same as the claims CIT set forth in the original complaint. CIT also asserts four *416 claims which are based on entirely new facts.
The additional claims asserted by CIT in the amended complaint are based upon facts that were not alleged in the original complaint. In one of the claims, CIT charges that Srour transferred his own property to his wife for the sole purpose of preventing CIT from collecting its judgment from him. CIT asserts that Srour stopped working for Status in 1987 and became re-employed. At that point, Srour closed all bank accounts in his name. In 1989, after CIT commenced the suit on his guaranty, CIT alleges that at Srour's behest, his employer began depositing his pay checks directly into his wife's bank account without consideration. Because of this transfer, CIT alleges that Srour should be denied a discharge under 11 U.S.C. § 727(a)(2).
CIT further argues that Srour possesses unfettered access to his wife's bank account and has an equitable interest in the account to the extent of his salary. Srour did not list the account on his schedules. CIT charges that Srour's salary is used by his wife to pay the mortgage on their residence which she owns. Thus, the debtor's income is used to accumulate equity in the home. This equitable interest is not listed in Srour's schedules. CIT claims that under 11 U.S.C. § 727(a)(4), the omission of the home and bank account from Srour's schedules constitutes a false oath and willful concealment of an asset of the estate and accordingly warrant denial of discharge.
Srour filed his answer to the amended complaint on February 11, 1991. In the answer, Srour denies virtually all of CIT's allegations and asserts that CIT's claim is untimely. In addition, Srour requests costs and attorney's fees. On February 7, 1992, Srour moved to dismiss the complaint on the grounds that it is untimely under Bankruptcy Rule 4004(a) which provides that actions to deny discharge under 11 U.S.C. § 727 must be brought within 60 days after the initial 11 U.S.C. § 341(a) meeting of creditors. CIT's complaint objecting to Srour's discharge was not served until almost seven months after the first meeting of creditors. In addition, Srour seeks to dismiss CIT's amended complaint under Federal Rule of Civil Procedure 41 and Bankruptcy Rule 7041 alleging that CIT neglected to prosecute the action zealously. It has been more than a year since CIT served its original complaint.
CIT resists the debtor's motion and sets forth several arguments in support of its position. CIT contends that its amended complaint is not untimely under Rule 4004(a) because the allegations contained in the original complaint to declare CIT's debt nondischargeable under 11 U.S.C. § 523 put the debtor on notice that a cause of action objecting to discharge under 11 U.S.C. § 727 could be asserted.
CIT also argues that its amended complaint should not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute because the delay in pursuing the action was the fault of Srour and his attorney, Goldberg. CIT asserts that it was not neglectful in pursuing the action. Rather, CIT claims that the debtor repeatedly failed to comply with valid discovery requests and alleges that Srour failed to produce documents, appear for deposition and respond to requests for admissions. CIT also attributes the delay to Goldberg's failure to advise CIT of dates that his firm would be available to try the case despite CIT's repeated requests for such information. CIT further argues that the complaint should not be dismissed under Bankruptcy Rule 7041 because the United States trustee was not given proper notice of the motion as required by the statute. In addition, CIT has made a cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and Bankruptcy Rule 7015 on its amended complaint to deny Srour's discharge under 11 U.S.C. §§ 727(a)(2) and (4).

DISCUSSION

DISMISSAL OF AMENDED COMPLAINT UNDER RULE 41(b)
Federal Rule of Civil Procedure 41(b) permits a defendant to move for dismissal *417 of an action or claim based on a plaintiff's failure to prosecute the action. Rule 41 is expressly made applicable to adversary proceedings through Bankruptcy Rule 7041 which provides as follows:
Rule 41 FR Civ P applies in adversary proceedings, except that a compliant objecting to the debtor's discharge shall not be dismissed at the plaintiff's insistence without notice to the trustee, the United States trustee, and such other persons as the court may direct, and only on order of the court containing terms and conditions which the court deems proper. (emphasis added.)
Fed.R.Bankr.P. 7041. In this case, although Srour's motion to dismiss is procedurally valid, it is denied on factual grounds.
Srour's motion is procedurally proper even though he failed to give the United States trustee notice. Notice has only been given to counsel for CIT. The statutory language indicates that service on the United States trustee is necessary only if the motion to dismiss under Rule 7041 is unopposed by the plaintiff. The advisory notes relating to the statute make this clear and explain that service on the United States trustee is required because a dismissal of an objection to discharge raises special concerns that the plaintiff may have been induced to dismiss the action. Fed. R.Bankr.P. 7041 advisory committee's note (1983). In this case, where the plaintiff contests the motion, the possibility of collusion between the parties is absent. See In re Joseph, 121 B.R. 679, 681 (Bankr. N.D.N.Y.1990). Therefore, service on the United Stated trustee is not required.
However, Srour's motion to dismiss is denied on substantive grounds. Dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b) is discretionary. Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734, 739 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.1982). However, such a motion should be granted only where the plaintiff has clearly engaged in dilatory conduct. State Establishment for Agric. Prod. Trading v. M/V Wesermunde, 838 F.2d 1576, 1582 (11th Cir. 1988), cert. denied, 488 U.S. 916, 109 S.Ct. 273, 102 L.Ed.2d 262; 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987). Therefore, the court must determine whether the plaintiff's delay or contumacious conduct justifies dismissal of the case.
In this case, the facts do not establish that CIT has unduly held up the action. Goldberg has submitted an affidavit in which he states that the plaintiff's attorney has made no affirmative efforts to prosecute the action other than uncompleted discovery attempts. CIT has explained that Srour and his attorney, Goldberg, are responsible for the delay. According to uncontroverted facts asserted in CIT's papers, Srour stalled the action by failing to comply with valid discovery demands on three separate occasions. Indeed, Goldberg concedes that Srour has never responded to CIT's requests for admissions. CIT's papers also indicate that Goldberg failed to supply CIT with dates that he would be available to try the case despite CIT's repeated requests for such information. The action was adjourned on consent several times without a date. It should be noted that even if Goldberg's allegations attributing the delay to CIT's counsel were accepted as true, dismissal is inappropriate in this case. Dismissal is a harsh sanction and is not proper where failure to prosecute is due to the negligence of the plaintiff's attorney rather than the plaintiff. Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126 (3d Cir.1987).

DISMISSAL OF AMENDED COMPLAINT UNDER RULE 4004(a)
Rule 4004(a) of the Federal Rules of Bankruptcy Procedure sets forth the time limit for filing a complaint objecting to the debtor's discharge and provides in pertinent part as follows:
(a) Time for Filing Complaint Objecting to Discharge; Notice of Time Fixed. In a chapter 7 liquidation case a complaint objecting to the debtor's discharge *418 under § 727(a) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a).
Fed.R.Bankr.P. 4004(a). Under Rule 4004(a), the time for objecting to discharge in this case expired August 17, 1990. Although CIT's original complaint objecting to the dischargeability of its debt under 11 U.S.C. § 523 was within the time set by Rule 4004(a), the claims for relief asserted in the amended complaint under 11 U.S.C. § 727 were not. The issue for this court to decide is whether the claims in the amended complaint objecting to the debtor's discharge under 11 U.S.C. § 727 relate back to the date that the original complaint was filed.
Federal Rule of Civil Procedure 15(c) sets forth the standard for determining whether an amended complaint relates back to the filing of the original complaint and states that
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Fed.R.Civ.P. 15(c). Bankruptcy Rule 7015 expressly makes Rule 15 applicable to adversary proceedings such as this case. Under Rule 15(c), if the original pleading sufficiently indicates the factual situation out of which the claim arises, the amendment will relate back. Kelcey v. Tankers Co., 217 F.2d 541, 543 (2d Cir.1954); Holdridge v. Heyer-Schulte Corp. of Santa Barbara, 440 F.Supp. 1088, 1093 (N.D.N.Y.1977); In re Gunn, 111 B.R. 291, 292 (9th Cir.BAP 1990); In re Dean, 11 B.R. 542, 545 (9th Cir.BAP 1981); In re Fondren, 119 B.R. 101, 104 (Bankr.S.D.Miss.1990). However, an amendment which states an entirely new claim for relief based upon a different set of facts, will not relate back. Holmes v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir.1985). Therefore, to determine whether an amendment relates back under Rule 15(c), it is necessary to examine the similarity between the facts set forth in the original and amended complaints.
It is well settled that an amendment which does not allege additional or different facts will relate back under Rule 15(c) even if the amendment seeks relief based upon a new cause of action. Tiller v. Atlantic Coast Line R.R. Co., 323 U.S. 574, 575, 65 S.Ct. 421, 422, 89 L.Ed. 465, 467 (1945); Staren v. Am. Nat'l Bank & Trust Co. of Chicago, 529 F.2d 1257, 1263 (7th Cir.1976); De Malherbe v. Int'l Union of Elevator Constructors, 449 F.Supp. 1335, 1354 (N.D.Cal.1978); In re Kelley, 46 B.R. 63, 67 (Bankr.E.D.Va.1985). The standard for relation back under Rule 15(c) has been enunciated as follows:
The Federal Rules do not depend on the concept of "cause of action," thereby shifting the emphasis from a theory of law as to the "cause of action" to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. Thus, an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back.
James Moore et al., Moore's Manual Federal Practice and Procedure § 909.09[9], 9-153 (2d ed. 1991) (footnotes omitted). The policy behind this rule is to insure that the defendant was apprised of the facts and circumstances in issue. In order for an amendment to relate back, it is crucial that the defendant have ample notice from the original complaint of the particular conduct and facts that are alleged. Holmes, 757 F.2d. at 1566; In re Barnes, 96 B.R. 833, 839 (Bankr.N.D.Ill.1989); In re Wahl, 28 B.R. 688, 690 (Bankr.W.D.Ky.1983).
The original complaint asserted six claims, all alleged to be nondischargeable because of the debtor's fraud or defalcation while acting in a fiduciary capacity as proscribed under 11 U.S.C. § 523(a)(4). In the first claim, Srour is alleged to have donated to Touro College office equipment belonging to Status which are recoverable as a fraudulent transfer. This language is essentially repeated in the first claim in the amended complaint. The second claim in the original complaint alleges that Srour caused Status to employ his wife, Jean, in a "no show" job. This language is repeated with additional language in the third claim of the amended complaint, but characterized as a fraudulent conveyance of Status' *419 assets. The fourth claim in the original complaint asserts that Srour caused Status to increase his salary at a time when Status was insolvent. This point is repeated as the second claim in the amended complaint. The fifth claim in the original complaint alleges that a 1978 Mercedes automobile claimed by Srour as exempt, was actually owned by Status subject to CIT's lien. The fourth claim in the amended complaint repeats this charge but also states that the automobile was transferred by Status to Srour in fraud of Status' creditors. The sixth claim in the original complaint alleges that the debtor and his wife, as insiders, received a loan of approximately $64,396.00. This language is repeated in the fifth claim of the amended complaint.
Hence, the first five claims in the amended complaint repeat the allegations contained in the original complaint, with additional embellishments. However, instead of seeking a determination of nondischargeability based on fiduciary fraud under 11 U.S.C. § 523(a)(4), the plaintiff now asserts that the facts give rise to a willful transfer of Status' assets to the debtors, recoverable as an attempt to hinder, delay or defraud the creditors of Status.
The balance of the claims in the amended complaint assert facts which were never included in the original complaint. The sixth claim in the amended complaint relates to an alleged violation of the factoring contract between Status and the plaintiff's predecessor. The seventh claim in the amended complaint asserts that Srour transferred his salary to his wife to defraud his creditors. The eighth claim charges that Srour omitted from his schedules his equitable interest in his wife's bank account. The ninth claim asserts facts supporting a claim that Srour omitted from his schedules his equitable interest in the residence he shares with his wife. Accordingly, claims Six through Nine in the amended complaint do not set forth facts which may relate back to the allegations in the original complaint and are now time barred by Rule 4004(a). Under Rule 15(c), the claims in the amended complaint which are based upon entirely different conduct not previously mentioned in the complaint cannot relate back. Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.1973), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90; Holdridge, 440 F.Supp. at 1093; Barnes, 96 B.R. at 837; In re Ksenzowski, 56 B.R. 819, 829 (Bankr.E.D.N.Y.1985); Wahl, 28 B.R. at 690.
Although the first five claims in the amended complaint may relate back to the original complaint in order to overcome the sixty day time limit imposed under Rule 4004(a), they must also overcome another obstacle. The plaintiff, CIT, has cross-moved for summary judgment. CIT's cross-motion for summary judgment requires the court to focus on the merits of the pleadings.

SUMMARY JUDGMENT FOR THE NON-MOVING PARTY
CIT has invoked the power of the court to render summary judgment against the debtor. Hence, this invocation gives the court the authority to render summary judgment for the other party even if not requested by him if it appears warranted because a motion for summary judgment searches the pleadings. Viger v. Commercial Ins. Co. of Newark, N.J., 707 F.2d 769, 774 (3d Cir.1983); Morrissey v. Curran, 423 F.2d 393 (2d Cir.1970), cert. denied, 399 U.S. 928, 90 S.Ct. 2245, 26 L.Ed.2d 796 (1970).
The first five claims in the amended complaint implicate allegedly fraudulent transfers of assets owned by the debtor's corporation, Status, as distinguished from fraudulent conveyances of his own property. Although the debtor may have a derivative interest in his corporation's assets, the term "property of the debtor" as expressed in 11 U.S.C. § 727(a)(2)(A) has reference to property in which the debtor has a direct proprietary interest. M Corp. Management Solutions, Inc. v. Thurman (In re Thurman), 901 F.2d 839, 841 (10th Cir. 1990) ("Congress intended to limit the reach of § 727(a)(2)(A) only to those transfers of property in which the debtor has a direct proprietary interest."); In re Wines, 114 B.R. 794, 796 (Bankr.S.D.Fla.1990).
It does not follow that because the debtor may have caused his corporation to transfer its assets in fraud of its creditors, it should also follow that the transfer of *420 property of another entity should support a denial of the debtor's discharge when he is not charged with having fraudulently transferred any of his own property within the meaning of 11 U.S.C. § 727(a)(2)(A). M Corp., 901 F.2d at 841; Wines, 114 B.R. at 796. Accordingly, the amended complaint, which is limited to the first five claims, is legally insufficient under 11 U.S.C. § 727(a)(2)(A). Therefore, the debtor is entitled to an order for summary judgment in his favor.
The plaintiff, CIT, would have been in a better position had it not amended its complaint. The original six claims for nondischargeability based on fiduciary fraud under 11 U.S.C. § 523(a)(4) were facially satisfactory as a matter of law and might have survived a motion for summary judgment because of disputed questions of fact. The four new claims bottomed on 11 U.S.C. § 727 may not be considered because they are time barred by Rule 4004(a), notwithstanding that they state valid claims which if true, would bar the debtor's discharge. On the other hand, the first five claims in the amended complaint seeking to bar the debtor's discharge under 11 U.S.C. § 727(a)(2)(A), which substituted for the six nondischargeability claims in the original complaint and addressed the issue of fiduciary fraud, simply do not pass muster when viewed in the context of the motion for summary judgment which CIT raised. In effect, CIT shot itself in the foot when it substituted five legally insufficient discharge claims for six validly expressed nondischargeability claims and then pulled the trigger by cross-moving for summary judgment, which exposed the legally insufficient complaint as the target for its summary judgment motion.

CONCLUSIONS OF LAW
1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b)(2)(J).
2. Debtor's motion to dismiss the amended complaint under Bankruptcy Rule 7041 and Federal Rule of Civil Procedure 41(b) is denied. The facts do not establish that the plaintiff engaged in dilatory tactics or conduct that would justify a dismissal.
3. Debtor's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(c) and Bankruptcy Rule 7012 is granted in part as to amended claims Six through Nine. These claims are based on new facts and are time barred pursuant to Bankruptcy Rule 4004(a).
4. The first five claims in the amended complaint are based on facts alleged in the original complaint and are proper amendments which may relate back to the filing of the original complaint in accordance with Federal Rule of Civil Procedure 15(c).
5. CIT's cross-motion for summary judgment searches the pleadings and invokes the court's authority to grant summary judgment against CIT and in favor of the debtor because the amended complaint is legally insufficient in that it fails to implicate "property of the debtor", as required under 11 U.S.C. § 727(a)(2)(A).
6. The debtor is entitled to an order for summary judgment based on the pleadings.