Opinion
Civil Action No. 7:18-1900-TMC-KFM
11-14-2018
Derrick Quinn, Plaintiff, v. Copart, Inc., Defendant.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendant's motion to dismiss (doc. 6) and the plaintiff's motion for summary judgment (doc. 9). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
PROCEDURAL HISTORY
The plaintiff filed his summons and complaint in the Court of Common Pleas for the County of Spartanburg on September 11, 2017 (doc. 1-1). The plaintiff, who is represented by counsel, asserts three causes of action against the defendant: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended (doc. 1-1 at 6); (2) age discrimination in violation of Title VII (id. at 7); and (3) hostile work environment and termination based upon his age and/or race and/or sex (id.).
Title VII does not provide a cause of action for age discrimination.
As noted by the defendant (doc. 6-1 at 1 n.4), this cause of action is presumably also brought pursuant to Title VII, although the complaint does not identify the statute.
On June 13, 2018, the plaintiff sent the summons, complaint, and requests for admission by certified mail, return receipt requested, to Corporation Service Company ("CSC"), the defendant's registered agent (doc. 6-2 at 11). The defendant's registered agent received the summons, complaint, and requests for admissions on June 15, 2018 (doc. 6-3 at 3). The defendant removed the matter to this court on July 12, 2018 (doc. 1).
The defendant filed its motion to dismiss on July 19, 2018 (doc. 6). On August 1, 2018, the plaintiff filed a motion for summary judgment (doc. 9). On August 2, 2018, the plaintiff filed a response in opposition to the defendant's motion to dismiss (doc. 10). On August 7, 2018, the defendant filed motions for extensions of time to file a reply in support of its motion to dismiss and a response to the plaintiff's motion for summary judgment (docs. 12, 13), which the undersigned granted (docs. 15, 16). On August 22, 2018, the defendant filed a response to the plaintiff's motion for summary judgment and a reply in support of the motion to dismiss (docs. 18, 19). The plaintiff then filed a motion for extension of time to file a reply in support of his motion, which the undersigned granted (docs. 21, 22). The plaintiff filed a reply on August 28, 2018 (doc. 25).
APPLICABLE LAW AND ANALYSIS
Defendant's Motion to Dismiss
The defendant argues that this action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process because the plaintiff failed to timely serve it with the summons and complaint as required by the South Carolina Rules of Civil Procedure. The undersigned agrees.
Because this action was originally filed in state court, service of the summons and complaint is required to be made in accordance with the South Carolina Rules of Civil Procedure. See Seabrooks v. Aiken Cty., C.A. No. 1:15-cv-04235-JMC, 2016 WL 4394275, at *2 (D.S.C. Aug. 18, 2016) ("When service of process is attempted prior to removal of the action to the District Court, the state rules for service of process govern.") (citations omitted). South Carolina Rule of Civil Procedure 3(a) provides:
A civil action is commenced when the summons and complaint are filed with the clerk of court if: (1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or (2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.Rule 3(a), SCRCP.
"Title VII and the [Age Discrimination in Employment Act ("ADEA")] allow an aggrieved party ninety days after receipt of a right-to-sue letter from the EEOC to file a civil action." Aziz v. Orbital Scis. Corp., No. 98-1281, 1998 WL 736469, at *1 (4th Cir. Oct. 19, 1998) (citing 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(e) (ADEA)). The plaintiff first argues that he timely filed an EEOC charge and subsequently filed a lawsuit within 90 days of receipt of the notice of right to sue (doc. 10 at 2). However, assuming that the plaintiff filed the summons and complaint in state court within the 90-day limitations period provided in Title VII and the ADEA, to timely commence an action under Rule 3(a)(1), the plaintiff still had to serve the filed summons and complaint within the 90-day period, and he makes no argument that he did so. See Rule 3(a)(1), SCRCP. In the alternative, the plaintiff could have timely commenced his state court action under Rule 3(a)(2) by serving the defendant within 120 days after filing the summons and complaint. See Rule 3(a)(2), SCRCP. However, the plaintiff did not serve the defendant with the summons and complaint until June 15, 2018 (doc. 6-1 at 3; doc. 10 at 2), which was 277 days after the summons and complaint were filed. Accordingly, the plaintiff's summons and complaint were not timely served, and thus the action was not properly commenced under South Carolina law.
As noted above, the plaintiff alleges a cause of action for "Employment Discrimination Based on Title VII - Age" (doc. 1-1 at 7). Title VII, however, provides a cause of action for discrimination based upon an "individual's race, color, religion, sex, or national origin," not age. 42 U.S.C. § 2000e-2(a). To the extent the plaintiff may argue that the claim is brought under the ADEA, the ADEA also provides that an individual must file a civil action within 90 days of receipt of the notice of right to sue. 29 U.S.C. § 626(e).
Neither party provided the court with the date of the issuance of the notice of right to sue or the plaintiff's receipt thereof.
The plaintiff argues that "[t]here is no statute of limitations for the filing of a Title VII claim. Rather, there is a 90-day period in which to file an action after receipt of a Right to Sue letter from the EEOC" (doc. 10 at 2). The undersigned disagrees. "Both Title VII and the ADEA have a ninety-day statute of limitations . . . ." Burris v. CSX Transp. Co., Inc., C.A. No. 4:17-2681-RBH-TER, 2018 WL 1701979, at *1 (D.S.C. Mar. 14, 2018) (citations omitted), R&R adopted by 2018 WL 1697298 (D.S.C. Apr. 6, 2018). As the court found in Burris,
It is undisputed that Plaintiff filed his summons and complaint within the ninety-day limitations period. However, he did not serve Defendant with the complaint within the limitations period or within 120 days of filing the summons and complaint. . . . Dismissal is appropriate when a plaintiff fails to timely commence an action.Id. (dismissing plaintiff's complaint where the complaint was served 266 days after it was filed in state court).
The plaintiff also appears to argue that his failure to timely commence this action in state court should be excused because he communicated with opposing counsel his intent to file a summons and complaint alleging federal causes of action (doc. 10 at 2-3). Specifically, on June 5, 2017, prior to the filing of the instant action in state court, the plaintiff filed another lawsuit against the defendant and two individual defendants in state court alleging state law claims (C.A. No. 2017-CP-42-01961P). That case remains pending in state court. The plaintiff's counsel states that, in an email dated August 10, 2017, he asked the defendant's counsel, who also represents the defendant in the pending state court action, if he would "accept service of the federal action in Quinn v. Copart?" (doc. 10 at 3; doc. 10-1). Defense counsel responded that he would accept service (doc. 10-1). On September 11, 2017, the plaintiff filed the summons and complaint in state court alleging federal claims that were later removed to this court in the instant action (doc. 1-1). According to the plaintiff's counsel, he emailed a copy of the summons and complaint to the defendant's counsel on May 30, 2018 (doc. 10 at 1-2), and defense counsel advised him that he was not authorized to accept service by email. The plaintiff then served the defendant's registered agent by certified mail on June 15, 2018, as discussed above (id. at 2). As argued by the defendant, the reason for the plaintiff waiting some nine months to serve the filed summons and complaint is unknown and can only be answered by the plaintiff's counsel. Nonetheless, the plaintiff provides no support for his argument that the fact defense counsel knew the plaintiff "intended to bring Title VII claims" since August 2017 somehow excuses the plaintiff's failure to timely serve the defendant with the summons and complaint.
Here, "[t]his action was never properly commenced in state court because it was not timely served. 'The removal of a case to federal court cannot breathe jurisprudential life in federal court to a case legally dead in state court.'" Burris, 2018 WL 1701979, at *2 (quoting Rice v. Alpha Sec., Inc., 556 F. App'x 257, 260 (4th Cir. 2014)). Accordingly, the defendant's motion to dismiss for insufficient service or process pursuant to Rule 12(b)(5) should be granted (doc. 6) Moreover, because dismissal without prejudice would be futile since the 90-day statute of limitations for the plaintiff's claims has expired, such dismissal should be with prejudice. See id. at *3 (citing Mann v. Standard Motor Prods., 532 F. App'x 417, 418 (4th Cir. 2013)).
Plaintiff's Motion for Summary Judgment
The plaintiff argues that summary judgment should be granted in his favor because the defendant failed to serve responses to the requests for admission that were served along with the summons and complaint on June 15, 2018 (doc. 9). The plaintiff notes that, pursuant to 28 U.S.C. § 1450, "All injunctions, orders, and other proceedings had in such action prior to . . . removal shall remain in full force and effect until dissolved or modified by the district court." The plaintiff contends that because the requests for admission were served before the case was removed on July 12, 2018, the defendant's failure to serve responses with 45 days requires that the requests be deemed admitted (doc. 9 at 1).
In Steen v. Garrett, the Honorable David C. Norton, United States District Judge, considered this issue and adopted the view of the "vast majority of courts" that "discovery requests are not injunctions, orders, or proceedings of a state court," under 28 U.S.C. § 1450, and thus "admission requests served in a state case need not be answered once the case is removed to federal court, if the deadline to answer those requests did not lapse before removal." C.A. No. 2:12-CV-1662-DCN, 2013 WL 1826451, at *2 (D.S.C. Apr. 30, 2013). Judge Norton further found that this interpretation comported with a plain reading of the Federal Rules of Civil Procedure, which provide that parties may not seek discovery before they have participated in a Rule 26(f) conference. Id. at *3. See Fed. R. Civ. P. 26(d)(1) ("A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) . . . . "). While the plaintiff urges the court to adopt the reasoning of the United States District Court for the Western District of Virginia in Mann v. Metro. Life Ins. Co., C.A. No. 99-0036, 1999 WL 33453411 (W.D. Va. July 9, 1999), in which the court determined that requests for admission properly served in a state court case remain in force when the case is removed to federal court, the undersigned finds Judge Norton's reasoning to be persuasive and thus recommends that the district court also adopt the view of the "vast majority of courts."
Here, the defendant had 45 days from June 15, 2018, to respond to the requests for admission. See Rule 36, SCRCP ("a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him"). The case was removed to federal court on July 12, 2018, before the defendant's responses were due. As in Steen, the "discovery requests were thus rendered 'null and ineffective'" when the defendant removed this case to federal court. Id. (quoting Wilson ex rel. Wilson v. Gen. Tavern Corp., C.A. No. 05-cv-81128, 2006 WL 290490, at *1 (S.D. Fla. Feb. 2, 2006)). Based upon the foregoing, the plaintiff's motion for summary judgment (doc. 9) should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court grant the defendant's motion to dismiss (doc. 6) and deny the plaintiff's motion for summary judgment (doc. 9).
IT IS SO RECOMMENDED. November 14, 2018
Greenville, South Carolina
s/Kevin F. McDonald
United States Magistrate Judge
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).