Varela v. Hi-Lo Powered Stirrups, Inc.

• Decision Date: 28 October 1980
• Docket Number: No. 79-477.,79-477.
• Parties: Julio D. VARELA, Appellant, v. HI-LO POWERED STIRRUPS, INC., Underwriters Laboratories, Inc., First Virginia Leasing Co., Will-Burt Co., National Restoration Corp., and A.A. Ladder & Supply Corp., Appellees.
• Court: D.C. Court of Appeals

424 A.2d 61

Julio D. VARELA, Appellant, v. HI-LO POWERED STIRRUPS, INC., Underwriters Laboratories, Inc., First Virginia Leasing Co., Will-Burt Co., National Restoration Corp., and A.A. Ladder & Supply Corp., Appellees.

No. 79-477.

District of Columbia Court of Appeals.

Argued en banc June 9, 1980.

Decided October 28, 1980.

Wayne M. Mansulla, Washington, D. C., for appellant.

Richard W. Galiher, Washington, D. C., for Hi-Lo Powered Stirrups, Inc.

James I. Serota, Chicago, Ill., for Underwriters Laboratories, Inc.

John T. Coyne and William J. Carter, Washington, D. C., filed a brief for First Virginia Leasing Co.

Edward J. Gorman, Jr., Washington, D. C., with whom Audrey F. Gorman, Washington, D. C., was on brief, for Will-Burt Co.

Edwin A. Sheridan, Fairfax, Va., for Nat. Restoration Corp.

David P. Durbin, Washington, D. C., filed a brief for A.A. Ladder and Supply Corp.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK and FERREN, Associate Judges.

NEWMAN, Chief Judge:

We consider in this case the question of what interpretation is to be given to Super. Ct.Civ.R. 3 (hereinafter Rule 3); more specifically, we must decide whether the filing of a complaint, without more, tolls the applicable statute of limitations. The pertinent facts of this case are simple: appellant Varela filed his complaint before the statutory period of limitations ran but did not attempt service (by certified mail) until three days after the period had run.¹ The trial court granted appellees' motion to dismiss this action based on the statute of limitations.

In Part I of this opinion we discuss the evolution and previous interpretations of Rule 3 and its predecessors. In Part II, we analyze present Rule 3, and the history and theory of Rule 3's identical federal counterpart, Fed.R.Civ.P. 3 (hereinafter Fed.R. 3), as well as their interrelationships with their respective Rule 4. In Part III, we analyze the decisions from those eight federal circuit courts of appeals which have dealt with the interpretation of Fed.R. 3. Finally, in Part IV, we hold that Rule 3 requires only the filing of a complaint to commence an action and thereby toll the statute of limitations; any questions as to lack of diligence on the part of a plaintiff in obtaining service of process are to be addressed by a motion filed pursuant to Super.Ct.Civ.R. 41(b). We reverse and remand to the trial court.

I

Rule 3, which is identical to Fed.R. 3, states:

A civil action is commenced by filing a complaint with the court.

The District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L.No. 91-358, title I, § 111, 84 Stat. 487 (1970), codified at D.C.Code 1973, § 11-946 (hereinafter the Court Reform Act) provided for the "adoption of the Federal Rules [of Civil Procedure (hereinafter the Federal Rules)] for use in the newly formed Superior Court." Rieser v. District of Columbia, 188 U.S.App.D.C. 384, 394, 580 F.2d 647, 657 (1978). While, as the court noted in Rieser, "the Federal Rules . . . from their inception have applied in all of the District of Columbia Courts, local and federal," id. at 392, 580 F.2d at 655, the fact is that, prior to 1970, under the Municipal Court Act, D.C.Code 1940 Supp., § 11-756(b), the rules adopted by the local courts only were required to "`conform as nearly as may be practicable to the forms, practice, and procedure . . . [then] obtaining under the Federal Rules of Civil Procedure.'" Taylor v. Yellow Cab Co. of D.C., D.C.Mun.App., 53 A.2d 691, 692 (1947) (emphasis added), quoting D.C.Code 1940 Supp., § 11-756(b).

Prior to the implementation of the Federal Rules, the court in Maier v. Independent Taxi Owner's Ass'n, 68 App.D.C. 307, 96 F.2d 579 (1938), held that "[h]aving regard to the local custom, we think the proper rule to be applied in the District of Columbia is that when a bill or declaration is filed and subpoena issued and delivered to the marshal for service before the statute has run, the statute is tolled." Id. at 310, 96 F.2d at 582 (emphasis added).²

The first case in the District of Columbia, decided after the effective date of the Federal Rules of Civil Procedure, which addressed the question of the interpretation of Fed.R. 3 was Reynolds v. Needle, 77 U.S. App.D.C. 53, 132 F.2d 161 (1942), where the United States Court of Appeals stated succinctly that: "[t]his [the filing of the complaint] commenced the action. Rule 3 . . .," id. at 54 n. 1, 132 F.2d at 162 n. 1, thereby implying that such commencement tolled the statute of limitations. In Clark v. Keesee, D.C.Mun.App., 136 A.2d 394 (1957), we explicitly acknowledged that "[t]he Maier case was modified by the adoption of Rule 3 of the Federal Rules. . . . The Reynolds case did not involve any problem of diligence and only stands for the proposition that an action is commenced upon the filing of the complaint." Id. at 396-97. However, eleven years later, in Criterion Insurance Co. v. Lyles, D.C.App., 244 A.2d 913 (1968), we virtually ignored the changes wrought by Fed.R. 3, by Reynolds, and by Clark, and reaffirmed the earlier interpretation of the local rule as established by Maier and Huysman:

Taking cognizance of this local custom, courts in this jurisdiction have developed the rule that an action is "commenced" when the complaint is filed and the summons is issued and delivered to the Marshal for service. Ordinarily, the applicable statute of limitations stops running at this point. Our rule . . . [is] based upon the principle that an action commences when a plaintiff has done all that is incumbent upon him toward the issuance and service of process. Since local custom places an extra obligation upon the initiator of a civil action, the statute of limitations ordinarily does not cease to run until that obligation is fulfilled. [Id. at 914 (emphasis added) (footnote omitted) (citations omitted).]

Two points should be noted concerning the opinion in Criterion: first, it is clear from the above passage that the court accepted the common sense notion that "commencement" of an action implied the tolling of the statute of limitations. Secondly, the court also made clear the fact that the "extra obligation" placed on a plaintiff in order to toll the statute of limitations — of delivering the summons to the marshal for service — was derived from local custom, and was now being read into the plain language of Rule 3, i. e., the additional obligation did not derive from the underlying language of the rule itself.

The Court Reform Act was passed two years after Criterion. Exercising its "plenary" power to legislate for the District of Columbia under Art. I, § 8 cl. 17 of the Constitution, see Palmore v. United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 1676, 36 L.Ed.2d 342 (1973); Rieser v. District of Columbia, supra 188 U.S.App.D.C. at 388, 580 F.2d at 651, the Congress mandated the Federal Rules for use in the new Superior Court. Id., 188 U.S.App.D.C. at 394, 580 F.2d at 657. D.C.Code 1973, § 11-946, states in part:

The Superior Court shall conduct its business according to the Federal Rules of Civil Procedure . . . unless it prescribes or adopts rules which modify those Rules. Rules which modify the Federal Rules shall be submitted for the approval of the District of Columbia Court of Appeals, and they shall not take effect until approved by that court.[³]

The legislative history of § 11-946 reflects the congressional intent that the local courts were to be governed by the federal rules, and not by local rules or custom, such as the court had relied on in reaching its decisions in Criterion and Maier. The Senate report on the Court Reform Act makes this intention explicit:

This section [§ 11-946] states a clear preference for the use of the Federal rules at both the trial and the appellate levels of the local court system. Unless there is a particular need for deviation from the Federal rules because of the peculiar local jurisdiction or because of the particular exigencies of the local situation, it is expected that the Federal rules shall be followed. [S.Rep.No. 405, 91st Cong., 1st Sess. 21 (1969).]

The new section 11-946 requires the Superior Court to conduct its business according to the Federal rules unless the court affirmatively prescribes modifications thereof. All modifications are to be approved before taking effect by the District of Columbia Court of Appeals. [Id. at 24 (emphasis added).]

See also H.R.Rep. No. 907, 91st Cong.2d Sess. 44, 138 (1970).

II

Appellees contend that both the legislative history of Fed.R. 3, and the interpretation that has been placed on that Rule by the various federal circuit courts, all indicate that both Federal and Super.Ct.Civ.R. 3 must be read in conjunction with their Rule 4(a) counterparts. In particular, appellees argue that while the federal courts have uniformly held that an action commences upon the filing of a complaint, this has only been because under Fed.R. 4(a), unlike Super.Ct.Civ.R. 4(a), once a complaint is filed, the clerk of the court automatically delivers the summons to the marshal for service; i. e., once the complaint has been filed, the plaintiff has done all that is incumbent upon him to do. For tolling purposes, he will not be charged with any delay in service that may result from a lack of diligence on the part of the clerk or marshal. Once all that is left to be done are "ministerial" acts entrusted to court personnel, the statute is tolled. Appellees argue that since the District provides for service not only by the marshal, but also by a plaintiff himself — and in fact it is highly common for a plaintiff to elect to serve process other than by use of the marshal in the District — where a plaintiff takes it upon himself to serve process, he should not be held to have effectively tolled the limitations period until he has "placed the process in the proper channel for service and has done all that is incumbent on him to ensure prompt...