Creech v. NDT Industries, Inc., Civ. A. No. 3:91-3496-19.

• Citation: 815 F. Supp. 165
• Decision Date: 05 March 1993
• Docket Number: Civ. A. No. 3:91-3496-19.
• Parties: John CREECH, Plaintiff, v. N.D.T. INDUSTRIES, INC., d/b/a New Deal Technologies, Defendant.
• Court: U.S. District Court — District of South Carolina

815 F. Supp. 165

John CREECH, Plaintiff, v. N.D.T. INDUSTRIES, INC., d/b/a New Deal Technologies, Defendant.

Civ. A. No. 3:91-3496-19.

United States District Court, D. South Carolina, Columbia Division.

March 5, 1993.

Donald E. Jonas and Thomas K. Fowler, Jr., Columbia, SC, for plaintiff.

William O. Sweeny, III and Christopher J. Daniels, Nelson, Mullins, Riley & Scarborough, Columbia, SC, for defendant.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SHEDD, District Judge.

This product liability action is before the Court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff seeks summary judgment on defendant's tenth affirmative defense, in which defendant asserts the statute of limitations as a bar to plaintiff's causes of action.¹ Defendant seeks summary judgment on all of plaintiff's causes of action based on the applicable statute of limitations. While the parties have raised and briefed a variety of legal issues in support of their respective positions, it is unnecessary for the Court to address and resolve each issue. Instead, the Court, after carefully reviewing the record and controlling legal principles, concludes that plaintiff's commencement of this action was timely as a matter of law under the applicable statutes of limitation as computed under Rule 6(a) of the South Carolina Rules of Civil Procedure. Therefore, the Court will grant plaintiff's motion and deny defendant's motion.

I

Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not "a disfavored procedural shortcut, but rather it is an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). When the moving party properly supports its motion showing that it is entitled to judgment as a matter of law, the party opposing the motion must present "affirmative evidence" to establish a genuine dispute of material fact which is necessary to defeat the summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257-58, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, the Court is required to view any permissible inferences to be drawn from the underlying facts in the light most favorable to the non-moving party. Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). If, after viewing the evidence in the light most favorable to the nonmoving party, the Court finds that the nonmoving party has failed to make a showing sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial, the Court must grant summary judgment against that party. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990).²

In ruling on cross-motions for summary judgment, the Court must apply the same standard as it does for individual summary judgment motions. Arnold Pontiac-GMA, Inc. v. General Motors Corp., 700 F.Supp. 838, 840 (W.D.Pa.1988). Thus, the Court must rule on each motion independently, deciding in each instance whether the moving party has met its burden under Rule 56. Dan Barclay, Inc. v. Stewart & Stevenson Servs., Inc., 761 F.Supp. 194, 197-98 (D.Mass.1991). Because defendant is the party asserting the statute of limitations in this case, it bears the burden of establishing that the statute bars plaintiff's causes of action. Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781, 786 (1962). The Court is mindful that this fact impacts upon the burdens of production and persuasion the parties bear in regard to their motions. See Celotex, 477 U.S. at 330-34, 106 S.Ct. at 2556-58 (Brennan, J., dissenting) (setting forth the different burdens of the moving and non-moving parties when each party bears the burden of persuasion at trial).

II

The material facts as presented in the record are not in dispute. On November 23, 1985, plaintiff was injured while working for his employer on a machine manufactured by defendant, an Ohio corporation with its principal place of business in Dayton, Ohio.³ Plaintiff filed the Summons and Complaint in this Court on November 19, 1991, four days prior to the sixth anniversary of his injury, invoking the Court's diversity jurisdiction and alleging three causes of action: strict liability, negligence, and breach of warranties. On the same day, plaintiff mailed a copy of the Summons and Complaint from Columbia, South Carolina, to the Sheriff of Montgomery County, Ohio ("the Sheriff"), for service on defendant. The normal delivery time for mail from Columbia to Montgomery County is 2-3 days.

The Sheriff has a post office box at the main post office in Dayton. All mail addressed to the Sheriff's office is delivered to the main post office and, like other mail, is sorted, tied, and placed in the post office box at least six days per week (Monday-Saturday). When personnel are available, mail is also sorted and placed in the post office box on Sundays. The sorting process begins late each night and continues through approximately 8:00-8:30 a.m. each morning. A courier from the Sheriff's Office retrieves the mail each weekday morning between 5:00 and 5:30 a.m. No mail is retrieved by the Sheriff's Office on Saturday or Sunday, or on weekday afternoons. Any mail to the Sheriff's Office which is sorted and placed in the post office box after the courier picks up the mail remains in the box until the following morning, except for mail that is sorted and placed in the box on Fridays and over the weekend. That mail remains in the post office box until Monday morning. Once the mail is retrieved by the courier, it is opened and logged into a book by the Civil Process Division of the Sheriff's Office.

The Summons and Complaint were logged in the Civil Process Division on Monday, November 25, and the sworn Return to the Summons and Complaint indicates that the Sheriff received those documents on that same day. On Wednesday, November 27, a deputy sheriff for Montgomery County served the Summons and Complaint on defendant.

III

For each of plaintiff's causes of action, the applicable limitations period required him to commence this suit within six years from the date that the cause of action accrued:⁴strict liability — S.C.Code Ann. § 15-3-530(2) ("An action upon a liability created by statute other than a penalty or forfeiture");⁵negligence — S.C.Code Ann. § 15-3-530(5) ("An action for any injury to the person or rights of another, not arising on contract, not enumerated by law, and those provided in Section 15-3-545");⁶ and breach of warranty — S.C.Code Ann. § 36-2-725(1) ("An action for breach of any contract of sale must be commenced within six years after the cause of action has accrued").⁷ Under Rule 3(a) of the South Carolina Rules of Civil Procedure, which is applicable in this diversity case, "a civil action is commenced by filing and service of a summons and complaint."⁸ Rule 3(b) further provides:

For the purpose of tolling any statute of limitations, an attempt to commence an action is equivalent to commencement thereof when the summons and complaint are filed with the clerk of court and delivered for service to the Sheriff of the county in which defendant usually or last resided, or if a corporation be defendant, to the sheriff of the county in which any person designated by statute to accept service usually or last resided; provided that actual service must be accomplished within a reasonable time thereafter.

S.C. R.Civ.P. 3(b).

Plaintiff contends that because he delivered the Summons and Complaint to the Sheriff by no later than November 25, 1991, and the Sheriff served the Summons and Complaint on defendant within a reasonable time (two days) thereafter, his attempted service was sufficient to commence this action under Rule 3(b). Recognizing that November 25, 1991, is two days after the sixth anniversary of the date of his injury, plaintiff argues that Rule 6(a) of the South Carolina Rules of Civil Procedure applies to extend the limitations period to November 25. Rule 6(a) states in pertinent part:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period begins to run is not to be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a State or Federal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor such holiday.

S.C. R.Civ.P. 6(a).⁹ Plaintiff thus contends that because the sixth anniversary of the date of his injury was a Saturday (November 23), under Rule 6(a) the limitations period ran until November 25, which was the first Monday following November 23 and, therefore, his delivery of the Summons and Complaint to the Sheriff by no later than that date was sufficient to constitute an attempted commencement of this action under Rule 3(b).¹⁰

A.

The Court concludes that plaintiff's position is correct. Initially, the Court notes that by its terms, Rule 6(a) specifically applies "in computing any period of time prescribed by the rules of civil procedure, by order of court, or by any applicable statute." S.C. R.Civ.P. 6(a) (emphasis added). Rule 6(a), like the other state rules of civil procedure, "governs the procedure in all South Carolina courts in all suits of a civil nature. ..." S.C. R.Civ.P. 1. In South Carolina, statutes of limitations are considered to be procedural. Jenkins v. Meares, 302...