explaining that a plaintiff in a removed case was entitled “in federal court post-removal” to seek to serve the defendants within the period provided for in Fed. R. Civ. P. 4(m)
How later courts described this case
- explaining that a plaintiff in a removed case was entitled “in federal court post-removal” to seek to serve the defendants within the period provided for in Fed. R. Civ. P. 4(m)
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1644
JACQUELINE RICE,
Plaintiff - Appellant,
v.
ALPHA SECURITY, INCORPORATED; BUDGET MOTELS, INCORPORATED,
d/b/a Comfort Inn Alexandria; WATERLOO HOSPITALITY,
INCORPORATED, d/b/a Comfort Inn Alexandria,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-01025-GBL-TCB)
Argued: January 29, 2014 Decided: February 25, 2014
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Mary Ann Kelly, LAW OFFICES OF MARY ANN KELLY, Fairfax,
Virginia, for Appellant. Douglas Conrad Meister, MEYERS, RODBELL
& ROSENBAUM, PA, Riverdale, Maryland; Stephen William Robinson,
MCGUIREWOODS, LLP, Tysons Corner, Virginia, for Appellees. ON
BRIEF: Dennis Chong, Michael J. Hoare, MICHAEL J. HOARE, P.C.,
Washington, D.C., for Appellant. Nicholas D. SanFilippo,
MCGUIREWOODS, LLP, Tysons Corner, Virginia, for Appellees Budget
Motels, Incorporated and Waterloo Hospitality, Incorporated.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant Jacqueline Rice appeals the dismissal of her
sexual harassment lawsuit against Appellees Alpha Security,
Budget Motels, and Waterloo Hospitality. Rice filed this suit in
Virginia state court. Under Virginia law, service of process is
typically to be effected within one year of the commencement of
the suit, but Rice perfected service after one year and 16 days.
Appellees removed the case to federal court and thereafter moved
to dismiss for insufficient service.
After first denying Appellees’ motions, the district court
then reversed itself and dismissed the case with prejudice,
holding that service of process was fatally untimely in state
court and that it could not be cured after the case’s removal to
federal court. On appeal, Rice contends that the court failed to
consider her right under Virginia law to take a nonsuit, which
would have effectively dismissed the case without prejudice and
permitted her to re-file it within six months. We agree with
Rice, and we vacate the judgment and remand for further
proceedings.
I.
Rice’s claims arose during the course of her employment as
a night-shift security officer on assignment at a Comfort Inn
hotel in Alexandria, Virginia. Rice alleges that throughout her
employment, her manager sexually harassed her, subjecting her to
3
a hostile work environment, and that Appellees wrongfully
terminated her employment after she complained about the
misconduct. She filed a charge of discrimination against
Appellees with the Equal Employment Opportunity Commission
(EEOC) and the EEOC’s subsequent investigation found reasonable
cause to believe that discrimination occurred. On August 15,
2011, Rice initiated the instant lawsuit in the Circuit Court
for Fairfax County, Virginia.
After filing her lawsuit, Rice did not immediately serve
the complaint and summons on Appellees; in fact, she failed to
do so for more than eleven months. Nearing the twelve-month
mark, the court scheduled a hearing to determine whether service
had been perfected. Before the hearing was held, however, Rice
exercised her right to a nonsuit under Va. Code Ann. § 8.01-380.
The court granted the nonsuit on August 14, 2012, one day before
the twelve-month mark, thus terminating her case.
A little more than two weeks later, on August 30, 2012,
Rice filed a motion asking the court to vacate its order
granting the nonsuit, and the court granted her request.
According to that order, the court’s previous “Order of August
14, 2012, granting [Rice’s] Motion for a Nonsuit, is hereby
VACATED; and [Rice’s] suit with all claims against all
Defendants is pending in this Court.” J.A. 23. Rice then
immediately attempted to locate the registered agents of
4
Appellees to effect service, but she was unable to do so until
the next day, August 31, 2012 – one year and 16 days after the
initiation of her lawsuit.
Appellees removed the case to the Eastern District of
Virginia under federal question jurisdiction, and they
subsequently filed motions to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(2) and (5). The district court held two
oral arguments on Appellees’ motions to dismiss. Originally, the
court entered a short order denying the motions, but following
reargument, the court entered a memorandum and order granting
the motions to dismiss with prejudice. A final judgment was
entered on April 16, 2013, and Rice timely appealed.
II.
The issues on appeal are whether Rice failed to effect
timely service under Virginia law and, if so, whether she could
cure the defect upon removal of the case to federal court. We
review the instant dispute of law de novo, as there are no
contested issues of fact. In re Beach First Nat’l Bancshares,
Inc., 702 F.3d 772, 776 (4th Cir. 2012).
A.
Under Virginia law, service of process is timely if it is
effected on a defendant “within twelve months of commencement of
the action,” or alternatively if the court finds that “the
plaintiff exercised due diligence to have timely service made on
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the defendant” but did not succeed. Va. Code Ann. § 8.01-275.1.
After twelve months, upon a finding that neither has occurred,
the defendant may obtain a judgment against the plaintiff with
prejudice. § 8.01-277(B).
On appeal, Rice has appeared to concede that she did not
demonstrate due diligence in her service attempts. App. Br. 11-
12. Our review of the record suggests that this is a prudent
concession, as Rice did not attempt service until August 30,
2012, and did so only once. Thus, we need only consider whether
Rice’s service on August 31, 2012 satisfies the twelve-month
requirement.
Calculation of the instant case’s period for service
implicates a historical procedural mechanism under Virginia law
known as a “voluntary nonsuit” or “nonsuit.” A nonsuit allows
litigants the opportunity to end a pending litigation,
effectively without prejudice to either party. Va. Code Ann.
§ 8.01-380; see also Alderman v. Chrysler Corp., 480 F. Supp.
600, 603 (E.D. Va. 1979) (applying Virginia law). A party may
take one nonsuit as a matter of right, and additional nonsuits
are possible with permission from the court. Va. Code Ann.
§ 8.01-380(B).
A nonsuit may be taken any time before (1) “a motion to
strike the evidence has been sustained;” (2) “the jury retires
from the bar;” or (3) “the action has been submitted to the
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court for decision.” § 8.01-380(A). Of particular relevance to
this appeal, a plaintiff may obtain a nonsuit even if she has
not perfected service or her time for perfecting service has
expired, so long as a dispositive motion has not been filed.
§ 8.01-277(B); see also Berry v. F&S Financial Marketing, Inc.,
626 S.E.2d 821, 824 (Va. 2006).
In the instant case, Rice sought, then had vacated, a
nonsuit order. She now contends that because her case was
nonsuited for seventeen days (that is, between the grant of the
nonsuit and its subsequent vacatur), those days ought not count
in the calculation of the one year period. Thus, although in an
ordinary situation Rice was to have served process by August 15,
she takes the position that her service on August 31 was timely
because seventeen days should have been subtracted from her
period for service.
We reject this argument. The effect of “vacating” an order
is to “nullify or cancel; make void; invalidate.” Ferguson v.
Commonwealth, 658 S.E.2d 692, 695 (Va. Ct. App. 2008) (citing
Black’s Law Dictionary 1584 (8th ed. 2004)); see also NLRB v.
Goodless Bros. Elec. Co., 285 F.3d 102, 110 (1st Cir. 2002)
(defining “vacate” as “to render inoperative; deprive of
validity; void; annul” and that an order to vacate “wipes the
slate clean”). Once Rice successfully moved to have her nonsuit
vacated, it ceased to exist, and effectively, it never did. It
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therefore could not have any further effect on the litigation,
because it is as if it never occurred. Id.
Rice has not cited to any statute or case law holding that
a vacated nonsuit order can extend a litigant’s period for
service. She instead contends that Frey v. Jefferson Home
Builders, Inc., 467 S.E.2d 788 (Va. 1996), is persuasive by
analogy. In Frey, the Virginia Supreme Court found service
timely when the last day of the service period fell on a legal
holiday and the plaintiff completed service on the next business
day. Id. at 790. But the Court relied on a provision of the
Virginia Code that specifically allowed for an extension of
service when the last day for service was a holiday. Here, the
provision governing nonsuits is silent as to a suspension of the
service deadline, and Frey is thus inapposite.
We conclude that Rice’s nonsuit, and its subsequent
vacatur, does not change the service of process requirement set
forth under §§ 8.01-275.1 and 8.01-335. As a matter of law, the
twelve-month period for service ended on August 15, 2012, but
Rice did not serve process until August 31, 2012. Her service of
process was therefore untimely under Virginia law.
B.
Having determined that Rice did not timely serve process in
state court, we now consider whether Appellees’ removal of the
case to federal court provided Rice with an opportunity to cure
8
her untimely service of process. The district court held that
Rice’s claims do not survive removal, but we disagree.
When a case is removed to federal court, a plaintiff may be
afforded additional time to complete service or to obtain
issuance of new process if, prior to the case’s removal,
“service of process has not been perfected prior to removal,” or
“process served proves to be defective.” 28 U.S.C. § 1448.
Federal Rule of Civil Procedure 4(m) dictates that the plaintiff
serve process within 120 days or be subject to a dismissal of
her federal action without prejudice.
Courts have held that this additional 120-day period does
not apply to cases that “would have been dismissed as time-
barred had it remained in state court.” Marshall v. Warwick, 155
F.3d 1027, 1033 (8th Cir. 1998); see also Wallace v. Microsoft
Corp., 596 F.3d 703, 707 n.2 (10th Cir. 2010); Witherow v.
Firestone Tire & Rubber Co., 530 F.2d 160, 168 (3d Cir. 1976)
(superseded by statute on unrelated grounds). These courts rely
on the reasoning that state law governs the case’s procedure up
to its removal, and a suit that failed to satisfy state
procedural obligations cannot be revived by the language of
§ 1448. Put another way, the removal of a case to federal court
cannot “breathe jurisprudential life in federal court to a case
legally dead in state court.” Witherow, 530 F.2d at 168.
9
On the instant facts, however, it is not clear that Rice’s
case was in fact “legally dead” under Virginal law; indeed, the
contrary is true. Our analysis on this point leads us -- once
again -- to the plaintiff’s right in Virginia courts to take a
nonsuit.
By all accounts, a nonsuit is an expansive and powerful
weapon bestowed upon the plaintiffs’ bar by the Virginia General
Assembly. Under this statutory right, a plaintiff may elect, for
a myriad of reasons and at practically any given point in time,
to terminate her case or to otherwise postpone it with minimal
consequence. As the Virginia Supreme Court has observed,
[t]he right to take a nonsuit on the eve of trial,
notwithstanding a defendant’s loss of time and expense
incurred in preparation, and notwithstanding any
disruption which may result to the court’s docket, is
a powerful tactical weapon in the hands of a
plaintiff. The General Assembly has provided, in Code
§ 8.01–380, several conditions to give balance to the
exercise of that right. Nonsuit remains, however,
distinctly a weapon in the arsenal of a plaintiff.
Trout v. Commonwealth Transp. Comm’r, 400 S.E.2d 172, 174 (Va.
1991); see also Lawrence v. Hanson, 197 F. Supp. 2d 533, 539
(W.D. Va. 2002) (describing plaintiff’s right to nonsuit as “one
of [his] primary privileges under state law”).
Virginia courts have indicated that the right to a nonsuit
is deserving of doctrinal protection. In Collins v. Shepherd,
for example, the Virginia Supreme Court invalidated a local rule
that had permitted the clerk to procedurally dismiss cases which
10
had not been served within one year because the rule deprived
the plaintiff of the opportunity to pursue a nonsuit. 649 S.E.2d
672, 676 (Va. 2007). The Court reasoned that “[i]n the absence
of this local rule, Collins would have retained the right to
take a nonsuit and refile his civil action beyond the one-year
limitation period established by the local rule.” Id. Because
the rule “abridged [the plaintiff’s] substantive right to take a
nonsuit and refile his case,” it was invalid. Id. at 675.
We are persuaded that we should apply Collins’s teaching to
the case at bar. When Rice’s case was removed to federal court,
Rice still had the option to seek a nonsuit, and if she had
successfully done so, her case would not be subject to dismissal
as time-barred. The parameters of § 8.01-380 were certainly
satisfied, in that the defendants had not submitted the action
to the court for decision. It is also likely that, since her
first nonsuit was vacated, Rice would have been entitled to a
nonsuit as a matter of right; in any event, a Virginia court may
allow additional nonsuits under certain circumstances. And
importantly, Rice maintained the right to take a nonsuit even
though her twelve-month period for service had expired. See
Berry, 626 S.E.2d at 824. Because Rice still had options left in
state court to pursue her cause of action, the removal of the
case to federal court should not change that outcome.
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The district court rejected Rice’s argument on the ground
that she had “already exercised her right to one nonsuit” such
that “dismissal here on the basis of defective service under
state law does not hastily deprive Plaintiff of any rights she
could have obtained in state court.” J.A. 142. But, as discussed
earlier, Rice’s nonsuit was vacated and deprived of any
validity; it was void. Just as the vacated nonsuit did not serve
to suspend the service requirement, it also cannot be treated as
an exhaustion of her right to take at least one nonsuit.
Finally, we reject Appellees’ argument that we should
affirm on the alternative ground that Rice failed to serve
process within 120 days of the case’s removal to federal court.
The district court had originally denied Appellees’ motions to
dismiss, thereby authorizing Rice to proceed with her case
without perfecting service. When, five months later, the court
reversed course and granted Appellees’ motions, Rice’s timely
appeal was sufficient to preserve her right to perfect service
of process upon our remand.
III.
We hold that although her original service of process was
defective, Rice is entitled to the opportunity to cure the
defect in federal court post-removal. Accordingly, we vacate the
judgment of the district court and remand the case to the
district court with instructions to allow Rice 120 days to serve
12
process in accordance with the dictates of 28 U.S.C. § 1448 and
Fed. R. Civ. P. 4(m).
VACATED AND REMANDED
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