Morton v. Meagher

• Decision Date: 19 October 2001
• Docket Number: No. Civ.A. 3:01CV173.,Civ.A. 3:01CV173.
• Citation: 171 F.Supp.2d 611
• Parties: Curtis Lee MORTON, Plaintiff, v. Patricia Ann MEAGHER, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

171 F.Supp.2d 611

Curtis Lee MORTON, Plaintiff, v. Patricia Ann MEAGHER, Defendant.

No. Civ.A. 3:01CV173.

United States District Court, E.D. Virginia, Richmond Division.

October 19, 2001.

Donald J. Gee, The Gee Law Firm, P.C., Petersburg, Virginia, for plaintiff.

William N. Watkins, Sands, Anderson, Marks & Miller, Richmond, Virginia, for defendant.

MEMORANDUM OPINION

PAYNE, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(B), this action was referred for Report and Recommendation on the merits of the defendant's motion to dismiss. The Report and Recommendation was filed on July, 23, 2001, and the defendant timely objected to the it.

STATEMENT OF FACTS

Curtis Lee Morton, a resident of Virginia, was struck by an automobile while driving in Chesterfield County, Virginia. Patricia Ann Meagher, a resident of Maryland was the driver of the vehicle that struck Morton. The automobile collision occurred in Chesterfield County, Virginia, on February 19, 1998.

In Virginia, there is a two year statute of limitations for bringing personal injury actions. Code of Virginia, § 8.01-243. On February 17, 2000, two days before the expiration of the applicable statute of limitations, Morton filed a Motion for Judgment in the Circuit Court for the City of Richmond, Virginia, against Meagher and her employer, Consolidated Freightways ("Consolidated"), on a theory of negligence. Morton sought damages in the amount of $500,000.00 plus interest and costs for personal injury, medical and related expenses, loss of earnings and earning capacity, and property damage. In a subsequently filed Amended Motion for Judgment, Morton increased the amount of his damage claim to $2,000,000.00 plus interest and costs.

Under Virginia law, a plaintiff has one year from the date of filing a Motion for Judgment in which to effect service of process. See Rules of the Supreme Court of Virginia, Rule 3.3. On February 6, 2001, Morton's counsel mailed copies of the Amended Motion for Judgment to Meagher, a non-resident, and to Consolidated, a non-resident corporation. To obtain personal jurisdiction over the out-of-state defendants, Morton served the Commissioner of the Division of Motor Vehicles (the "Commissioner"), as permitted by the Code of Virginia Section 8.01-326.1. Under that statute, the Commissioner is a statutory agent for issuance of process on nonresident defendants involved in automobile accidents on the highways in Virginia. However, under § 8.01-326.1, service on that statutory agent is not effective until the Commissioner files a Certificate of Compliance with the Clerk of the Court in which the action is pending. Morton served the Commissioner on February 15, 2001; and, on February 21, 2001, the Commissioner filed the Certificate of Compliance in the Circuit Court of the City of Richmond. The final date of the prescribed time period within which properly to effect service on the defendants was February 17, 2001.¹

While the action was pending in state court, Meagher filed a Motion to Quash and, as part of the prayer for relief therein, sought dismissal of the action for the reason that service had not been completed within the time permitted under Rule 3.3 of the Rules of the Supreme Court of Virginia. Thereafter, on March 22, 2001, the action was removed to this Court.

The Report and Recommendation on Meagher's motions concluded that service had been initiated by Morton within the applicable limitation period and that the failure of service was the Commissioner's error, not Morton's. For those reasons, the Report and Recommendation also concluded that the defective service of process could be cured under 28 U.S.C. § 1448, and that it was in the interests of justice and judicial economy to allow Morton to effect such a cure. Meagher timely filed an objection to the Report and Recommendation. Having considered the record, the Report and Recommendation, the objection and the further briefing on the objection, the Court finds that Meagher's Objection should be sustained and, as a result, the Report and Recommendation will not be adopted.

DISCUSSION

The validity of service of process in an action before it is removed to federal court is determined by the law of the state pursuant to which service was made. See, e.g., Brazell v. Green, 67 F.3d 293, 1995 WL 572890 (4th Cir.1995) (unpublished); Osborne v. Sandoz Nutrition Corp., 67 F.3d 289, 289, 1995 WL 597215 (1st Cir. 1995) (unpublished); Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir.1993); Allen v. Ferguson, 791 F.2d 611, 616 n. 8 (7th Cir.1986); 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1082 (1987, Supp. 2001). Under Virginia law, the applicable provision setting the time within which properly to serve a defendant is Rule 3.3 of the Rules of the Supreme Court of Virginia, which states:

No judgment shall be entered against a defendant who was served with process more than one year after the commencement of the action against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.

Rule 3.3 (emphasis added).

This action was filed against Meagher when the original Motion for Judgment was filed on February 17, 2000. Therefore, under Rule 3.3, the last day that service could be properly effectuated was February 17, 2001. It is undisputed that the filing of the Certificate of Compliance by the Commissioner, the final piece in the calculus of effective service of process when serving a defendant through the Commissioner as statutory agent for service of process, did not occur until February 21, 2001, four days beyond the time allowed for effecting valid service under Supreme Court of Virginia Rule 3.3.

Thus, under the undisputed facts and the unambiguous terms of Rule 3.3, there can be no judgment against Meagher in this action unless the Court "finds as a fact that [Morton] exercised due diligence to have timely service on [Meagher]." Morton has not even argued that service was effected timely or that she exercised due diligence to serve Meagher. And, indeed, the record is devoid of any evidence of due diligence.

Instead, Morton relies on the reasoning in McIntyre v. Wright, 1993 WL 946375 (Va. Cir. Ct. December 16, 1993) for the proposition that service incorrectly effectuated by a statutory agent may be perfected at a later date. In McIntyre, the Commissioner had been requested to serve an out-of-state defendant who had been involved in an automobile collision. The Commissioner failed adequately to serve the defendant because he forwarded process to a wrong address in Virginia where service had been unsuccessfully attempted at least once before, instead of sending it to the last known postal address or the address provided by the plaintiff, as directed by the applicable state statute. See Code of Virginia, § 8.01-326.1. Rather than dismissing the action or granting the motion for default judgment that had been made by the plaintiff, the state circuit court concluded that the defect in service could and should be cured because the defect was not the plaintiff's fault. The Report and Recommendation found that reasoning persuasive and thereupon applied the rationale of McIntyre to the facts of this action.

However, the facts in McIntyre are far different than the facts presented here. For example, the record in McIntyre appears to demonstrate the exercise of due diligence by the plaintiff (who had attempted service on previous occasions) and clear fault by the Commissioner (who did not serve at the last known address which the plaintiff had provided). Moreover, in McIntyre the timeliness of service does not appear to have been at issue. Certainly, it was not decided. Here, service is at issue and it undeniably was not timely. Moreover, here, the plaintiff exercised no diligence at all. Indeed, the request for service was made on the Commissioner two business days (February 15, 2001) before the time for effecting service (February 17, 2001) expired.² Nothing in the record reflects that the plaintiff even informed the Commissioner of the proximity of the deadline.

It is not reasonable to expect that the Commissioner would file the requisite Certificate of Compliance within one day after receiving the request for service. Thus, on this record, the Commissioner did not incorrectly effectuate service, he simply did not file the requisite Certificate of Compliance the day after his office was served. Instead, the Certificate of Compliance was filed the following week, four business days after the request for service was received and two business days after the last date on which effective service could have been achieved under Rule 3.3.³

The court, in McIntyre, was lenient at least in part because the plaintiff had instructed the Commissioner on the proper last known address and the Commissioner incorrectly failed to follow that instruction. Here, the plaintiff simply did not allow the Commissioner enough time to properly fulfill the duties imposed by the statute before the expiration of the prescribed time limits. Thus, even if McIntyre supplied the proper rule of decision (which it does not), the facts here would not fall within its reach.

On this record, service was not effected within the time frame prescribed by state statute and, therefore, the case was "dead" before it was removed to federal court. The Report and Recommendation even concludes, and correctly so, that a Virginia state court would have dismissed the case had it not been removed. It is contrary to the correlative doctrines of comity and federalism to allow a case that would be dead under state law to be revived upon removal by a federal court applying the same state law that would have led to the termination of the case in the state court. Nonetheless, Morton argues that, once a case is removed, 28 U.S.C. § 1448 (hereinafter " § 1448") allows a federal district court to correct deficient service.

In...