Opinion
Civil Action No. 3:01CV173
July 23, 2001
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter was referred to the court for a report and recommendation on the Defendant's motion to dismiss the Plaintiffs claim for failure of proper service of process and/or failure to state a claim upon which relief can be granted. ( 28 U.S.C. § 636(b)(1)(A); Order, May 17, 2001; Fed.R.Civ.P. 12(b)(4), 12(b)(6)). The Defendant's challenge is properly analyzed in regard to the sole issue of whether service of process was sufficient for the action to survive the applicable statute of limitations period. If not, can any deficiency in service be cured under 28 U.S.C. § 1448? The court finds the following procedural history and related facts to be relevant:
"The underlying Amended Motion for Judgment clearly alleges a cause of action for which relief can be granted if the court has jurisdiction so that Fed.R.Civ.P. 12(b)(6) is not implicated.
1. The cause of action involves a claim for damages resulting from an automobile accident that occurred on February 19, 1998, in Chesterfield County, Virginia. The Plaintiff, a Virginia resident, asserts he was injured due to the negligence of the Defendant, a Maryland resident (Amended Mot. for J.);
2. The action was initially filed by the Plaintiff in the Circuit Court for the City of Richmond on February 17, 2000, but the Plaintiff did not attempt formal service of process until February 13, 2001, as permitted by state law (attachments of court records to Def.'s Mot. to Quash, filed Feb. 22, 2001);
3. The lawsuit was served on the Virginia Commissioner of Motor Vehicles (Commissioner) on February 15, 2001, as permitted by state law for service on non-resident natural persons for claims arising out of vehicular accidents in Virginia (Id.);
4. The required Affidavit of Compliance to confirm service of process on the Commissioner was filed in the state court on February 22, 2001, three days after the expiration of the applicable statute of limitations (Id., Va. Code §§ 8.01-308, 8.01-3 10, 8.01-326.1, 8.01-243, Va. R. Sup.Ct. 3.3);
5. The Defendant received actual notice of the lawsuit by mail which was initiated on or about February 6, 2001, and received by the Defendant before the expiration of the applicable statute of limitations (PI.'s Resp. to Mot. to Quash);
6. The Defendant filed a motion to quash service of process in the state court but the matter was removed to this court pursuant to 28 U.S.C. § 1441 and 1446 before the motion could be resolved (Not. of Removal by Def. Consolidated Freightways, filed Mar. 22, 2001);
7. The case was removed to this court by a second defendant, Consolidated Freightways, subsequently determined to be an improper party and dismissed from the action by consent of the remaining parties (Order, May 17, 2001); and
8. The Defendant thereafter filed the pending Motion to Dismiss on the basis of the authority and arguments previously raised in the related Motion to Quash (Def.'s Mot. to Dismiss).
An Amended Motion for Judgment in which only the ad damnum was increased was filed thereafter and before service was attempted.
"The Plaintiffs Response asserting that a copy of the lawsuit was mailed to the Defendant on February 6, 2001, states that a certificate of service confirms the representation. The court assumes that counsel is referring to the notary certification contained on his affidavit describing his efforts to serve the Defendant within the state. The court otherwise accepts the representation as true, confirmed by defense counsel during oral argument on the motion. (Attachments to Def.'s Mit. to Quash).
ANALYSIS
person, including a non-resident, who operates a motor vehicle within the Commonwealth of Virginia is deemed to have appointed the Commissioner of the Virginia Department of Motor Vehicles as his statutory agent for purposes of service of process for claims arising out of the operation of a motor vehicle within the state. Va. Code §§ 8.01-307(2),308. Service of process on the Commissioner "shall be made by leaving a copy of such process. . . , in the hands, or in the office, of such Commissioner. . ." Va. Code § 8.01-310(A). Service of process on a statutory agent, including the Commissioner, is only effective when the agent (not the initiating party) causes a certificate (affidavit) of compliance to be filed in the appropriate state court. Va. Code § 8.01-326.1. Substituted service on a natural person by mail is only effective in actions "for which no particular mode of service is prescribed. . ." Va. Code § 8.01 296.The Defendant argues that the service in this case was not just defective, but that it was never accomplished as a matter of law and therefore cannot be cured pursuant to 28 U.S.C. § 1448 upon removal. See Witherow v. Firestone Tire Rubber Co., 530 F.2d 160, 168 (3rd Cir. 1975)("[i]mplicit in our conclusion is that § 1448 cannot be utilized to breathe jurisprudentially life in federal court into a case legally dead in state court.") (emphasis added). The Plaintiff argues that once removed, this court has the authority under § 1448 to effect or complete service as if the action were initiated in the federal court and that such a result is appropriate where the Defendant acknowledges receiving actual notice within the prescribed time period.
Each position has merit. On the one hand, the Defendant supports her arguments with no less than federal circuit and Supreme Court authority. In addition to the Third Circuit Opinion in Witherow v. Firestone Tire Rubber Co., the Defendant cites precedent from the First Circuit, 2000 Ct. Sup. the Eighth Circuit, and the Supreme Court for the consistent proposition that state procedural rules control on the question of the sufficiency of service of process in diversity cases that have been removed to federal court and that § 1448 is not intended to resuscitate an action that was fatally flawed in the state forum.
Osborne v. Sandoz Nutrition Corp., 1995 WL 597215, at *2 (1SC Cir. Oct. 6, 1995)(unpublished).
Marshall v. Warwick, 155 F.3rd 1027, 1031 (8th Cir. 1998).
Walker v. Armco, 446 U. 5. 740, 754 (1978).
The Plaintiff, on the other hand, relies on what it asserts to be the plain meaning of § 1448 which Plaintiff argues allows a federal court to correct any defects in service on the basis that the parties, in effect, start anew once a case is removed. A recent case from the Fourth Circuit appears to justify remedial relief on the strength of § 1448 at least in cases in which the defending party "had notice of the suit and [does] not claim to have been prejudiced. . . Brazell v. Green, 1995 WL 572890, at *1 (4th Cir. Sept. 29, 1995)(unpublished). The Defendant claims that although she cannot assert she was prejudiced as the result of the few days that elapsed following the expiration of the applicable limitation period, once it did pass, she claims she can rightfully assert she was prejudiced over the entire period of time since the incident — three years plus the few days. For instance, she argues she is precluded from having sought an early, independent medical evaluation of an ever-changing medical condition of the Plaintiff. The court rejects such relation-back reasoning for the simple reason that applicable state law permits the three year period despite such possible consequences. It would be illogical to allow the Defendant to plead this type of prejudice by way of the proverbial "back door" when it is not permitted to enter through the front — especially where it is only a matter of a few days.
Although reliance on an unpublished opinion is "disfavored" by the rules of the Fourth Circuit, it is instructive in illustrating the court's position on at least particular factual circumstance in a given situation. 4th Cir. R. 36. Such is the case here, especially given the recent vintage of the decision from the Fourth Circuit as compared to the authority relied on by the Defendant (which also includes an unpublished opinion).
As articulated at oral argument without any supporting authority.
Although it appears clear from a review of applicable state law that the state court may have dismissed the action for lack of service of process if the Defendant's Motion to Quash had been resolved before removal, it is not a certainty. What is a certainty is that it would not be in the interest of judicial economy to remand the case to the state court to find out. More importantly, however, this court finds that there are several circumstances in this case that distinguish it from the authority on which the Defendant relies and which support denial of the motion.
As possibly contrasted to the situation in the Brazell case in which state law may have permitted an exception. (Def.'s Supp'l Brief in Supp. of Mot. to Quash and Mot. to Dismiss at 2-3 (noting that the case cited in Brazell by the court, Freight Terminals. Inc. v. Ryder Sys. Inc., 461 F.2d 1046 (5th Cir. 1972), is distinguishable because the underlying state action was still viable such that curing the defect was not inappropriate).
First, the Plaintiff initiated the process within the applicable limitation period (albeit only by a matter of days) and it was the Commissioner, not the Plaintiff, who failed to file the required certificate of compliance within the allotted time. The Commissioner likewise failed in McIntyre v. Wright, 1993 WL 946375 at *2 (Va. Cir. Ct. Dec. 16, 1993), by forwarding process to the wrong address where service had already been unsuccessfully attempted as opposed to the address on record with the agency. Rather than dismissing the action, the state circuit court concluded that although the plaintiff could not obtain default judgment, the defect in service (actually, no service as Defendant argues in this case) could be and should be cured since it was not the fault of the Plaintiff. Although the decision is not from the state's highest court, the reasoning is persuasive.
Second, and perhaps most significantly, the Defendant in this case concedes she received actual notice before the expiration of the limitations period as opposed to the circumstances of the authority cited by the Defendant. Furthermore, a third factor to consider, as emphasized in Brazell is that there is no evidence in this case of any prejudice having been suffered by the Defendant as the result of the delay in service other than that which is a usual consequence from the passage of time, a circumstance excused, in effect, by the statutory period of permitted delay. 1995 WL 572890, at *1.
A final consideration that favors denial of the motion is that a problem in service of process, including lack of service, upon removal to federal court as is presented in this case should be cured in the interest ofjustice and judicial economy. Brazell, 1995 WL 572890, at *1. Although Defendant Meagher did not cause the action to be removed and the moving party, Consolidated Freightways, was dismissed, § 1448 and supporting authority do not appear to make a distinction. Once removed, service can be perfected, especially in light of such justifiable circumstances as exist in this case.
Conclusion
For the reasons stated, it is recommended that the Defendant Meagher's Motion to Dismiss be DENIED and that service be deemed to have been perfected, counsel for the Defendant having confirmed at oral argument on the motion that re-service would not be necessary if the motion were to be denied.
Let the Clerk forward a copy of this report and recommendation to the Honorable Robert E. Payne and all counsel of record.
It is so Ordered.