January 14, 2016
From Spartanburg County J. Derham Cole, Circuit Court Judge
E. Meyers, of Jeff Anderson & Assoc. P.A., of Saint Paul,
Minnesota, for Appellant.
William Harrell Foster, III, of Nelson Mullins Riley &
Scarborough, LLP, of Greenville; Allen Mattison Bogan and
Miles Edward Coleman, both of Nelson Mullins Riley &
Scarborough, LLP, of Columbia; and Charles Franklin Turner,
Jr., of Willson Jones Carter & Baxley, P.A., of
Greenville; for Respondent.
Doe appeals the circuit court's decision to dismiss his
action pursuant to Rules 3, 12(b)(1), and 12(b)(2), SCRCP.
Doe argues the circuit court failed to apply the
Servicemembers Civil Relief Act (the Act). We affirm.
January 28, 2008, Doe filed a complaint against the City of
Duncan (the City), asserting a cause of action for negligent
supervision. In his complaint, Doe alleged he was sexually
abused while participating in activities sponsored by the
City's fire department. Doe acknowledged he failed to
serve the City with the summons or complaint.
four years later on February 21, 2012, Doe filed an amended
complaint in which he alleged the same cause of action as in
the original complaint and added that the action was brought
pursuant to the Act. An affidavit of service, dated February
27, 2012, indicated the amended complaint was delivered to
"Bridget Musteata[, ] Town Clerk for Duncan Town."
The City subsequently filed a motion to dismiss, arguing Doe
failed to file and serve a summons with his original and
circuit court hearing on the motion to dismiss, the City
acknowledged Doe served it with the amended complaint but
stated Doe did not serve it with a summons. Conversely, Doe
stated the amended summons was served on the City. The City
also argued the merits of the case and stated Doe was taking
inconsistent positions. Namely, the City asserted Doe argued
the chief of the City's fire department was acting both
in his individual capacity and in the course and scope of his
employment. The circuit court dismissed the action, ruling
(1) Doe filed a complaint in 2008 but failed to serve the
City with the complaint within 120 days of its filing; (2)
Doe failed to serve the City with the 2012 summons; (3) Doe
failed to seek leave from the trial court to amend his
complaint; (4) Doe failed to timely commence the action
pursuant to Rule 3, SCRCP; and (5) the court lacked personal
and subject matter jurisdiction over the City pursuant to
Rules 3, 12(b)(1), and 12(b)(2), SCRCP. The circuit
court's order did not mention the Act by name.
22, 2012, Doe filed an amended summons. An affidavit of
service dated June 6, 2012, showed Doe served the summons to
"Melody Millwood, Clerk of Court."
subsequently filed a notice of appeal with this court. This
court affirmed the circuit court in an unpublished opinion
finding Doe's argument the circuit court erred in
dismissing his action without applying the Act was not
preserved for appellate review. Doe v. City of
Duncan, Op. No. 2014-UP-400 (S.C. Ct. App. filed Nov.
the supreme court granted Doe's petition for a writ of
certiorari and held Doe's argument was preserved for
appellate review. Doe v. City of Duncan, Op. No.
2015-MO-019 (S.C. Sup. Ct. filed Apr. 15, 2015). The court
found "[a]lthough the circuit court judge did not
specifically state he did not believe the Act applied in this
case, he implicitly rejected [Doe]'s argument by finding
the service was not timely." Id. The supreme
court remanded to this court to rule on the merits of
Doe's appeal. Id.
argues the circuit court erred in dismissing his action
without applying the Act. Specifically, Doe contends the Act
preempts any state ...