Telesca v. SAS INSTITUTE INC.

• Decision Date: 15 June 1999
• Docket Number: No. COA98-913.,COA98-913.
• Parties: Chris TELESCA, Plaintiff, v. SAS INSTITUTE INC., Defendant.
• Court: North Carolina Court of Appeals

516 S.E.2d 397

133 NC App. 653

Chris TELESCA, Plaintiff, v. SAS INSTITUTE INC., Defendant.

No. COA98-913.

Court of Appeals of North Carolina.

June 15, 1999.

Daniel F. Read, Durham, for plaintiff-appellant.

Ogletree, Deakins, Nash, Smoak and Stewart, P.C., by A. Bruce Clarke, C. Matthew Keen, and Robert A. Sar, Raleigh, for defendant-appellee.

GREENE, Judge.

Christopher Telesca (Plaintiff) appeals from the trial court's grant of SAS Institute's (Defendant) motion to dismiss.

Plaintiff was employed with Defendant as a photographer and was terminated. After his termination, Plaintiff filed a complaint with the Workplace Retaliatory Discrimination Division of the North Carolina Department of Labor (NCDOL), alleging retaliatory termination. The NCDOL issued Plaintiff a right-to-sue letter on 19 September 1995, giving Plaintiff until 18 December 1995 to commence a civil action against Defendant. On 18 December 1995, Plaintiff filed an application with the Wake County Superior Court clerk's office for an extension to file his complaint. On that same date, the clerk's office issued a summons to Defendant directing it to "answer the complaint of the plaintiff." The summons, however, was not accompanied by a complaint. On 22 December 1995, a deputy superior court clerk entered an order allowing Plaintiff's application, ordered Plaintiff's complaint to be filed on or before 7 January 1996,¹ and issued a civil summons commencing Plaintiff's suit. This summons, which was served on Defendant along with the order of the clerk authorizing the complaint extension, notified Defendant that it was required to serve its answer "to the complaint upon the plaintiff ... after you have been served with the complaint as authorized in the attached order." Plaintiff did not file his complaint until 9 January 1996.

On 29 April 1996, Plaintiff voluntarily dismissed his complaint against Defendant without prejudice, but refiled his complaint on 15 April 1997, alleging, among other claims, a violation of the Retaliatory Employment Discrimination Act (REDA).²

On 27 February 1998, Defendant moved to dismiss the REDA claim on the grounds that the statute of limitations had expired. The motion was allowed on 16 April 1998.

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The dispositive issue is whether a civil action is commenced, within the meaning of Rule 3 of our Rules of Civil Procedure, upon the filing of an application for an extension of time to file a complaint and upon the issuance of a summons.

A civil action under REDA must "be commenced by an employee within 90 days of the date upon which the right-to-sue letter was issued." N.C.G.S. § 95-243(b) (1993). A civil action can be commenced either by: (1) "filing a complaint with the court"; or (2) the issuance of a summons when a person makes an "application to the court ... requesting permission to file [a] complaint within 20 days" and "[the] court makes an order ... granting the requested permission." N.C.G.S. § 1A-1, Rule 3(a) (1990). "The summons and the court's order shall be served in accordance with the provisions of Rule 4." Id. Thus, an action is not commenced under the delayed service provision of Rule 3 until: (1) an application is made to the court for permission to file a complaint within twenty days; (2) the court enters an order granting that extension; and (3) a summons is issued pursuant to that order. See Osborne v. Walton, 110 N.C.App. 850, 431 S.E.2d 496 (1993)

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In this case, Plaintiff attempted to commence his action by delayed service. The application for the extension to file the complaint was filed on 18 December 1995 and a summons was issued by the clerk's office on that day. This summons was not sufficient to commence the action because it was not issued pursuant to an order entered by the clerk granting Plaintiff's application for an extension.

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