United States District Court, D. South Carolina, Florence Division
Deana J. Kinder and Anthony K. Kinder, Plaintiffs,
City of Myrtle Beach and John Does 1-99, Defendants.
Bryan Harwell United States District Judge.
matter is before the Court for resolution of a motion for
summary judgment filed by Defendant City of Myrtle Beach
(“the City”). See ECF No. 91. The Court
grants the motion for the reasons herein.
judgment is appropriate when no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Reyazuddin v. Montgomery Cty., Md.,
789 F.3d 407, 413 (4th Cir. 2015); see Fed. R. Civ.
P. 56(a) (“The court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.”). “A party asserting that a fact
cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record
. . .; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). The facts and
inferences to be drawn from the evidence must be viewed in
the light most favorable to the non-moving party,
Reyazuddin, 789 F.3d at 413, but the Court
“cannot weigh the evidence or make credibility
determinations.” Jacobs v. N.C. Admin. Office of
the Courts, 780 F.3d 562, 569 (4th Cir. 2015).
“the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “A dispute of
material fact is ‘genuine' if sufficient evidence
favoring the non-moving party exists for the trier of fact to
return a verdict for that party.” Seastrunk v.
United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). A
fact is “material” if proof of its existence or
nonexistence would affect disposition of the case under the
applicable law. Anderson, 477 U.S. at 248.
summary judgment stage, “the moving party must
demonstrate the absence of a genuine issue of material fact.
Once the moving party has met his burden, the nonmoving party
must come forward with some evidence beyond the mere
allegations contained in the pleadings to show that there is
a genuine issue for trial.” Baber v. Hosp. Corp. of
Am., 977 F.2d 872, 874-75 (4th Cir. 1992) (internal
citation omitted). Summary judgment is not warranted unless,
“from the totality of the evidence, including
pleadings, depositions, answers to interrogatories, and
affidavits, the [C]ourt believes no genuine issue of material
fact exists for trial and the moving party is entitled to
judgment as a matter of law.” Whiteman v.
Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th
Cir. 2013); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
October 10, 2009, Deana J. Kinder allegedly stepped into a
pothole located in a parking lot owned by the City and
sustained a severe fracture to her left leg. See
Complaint, ECF No. 1. On October 11, 2011, Mrs. Kinder and
her husband (collectively, “Plaintiffs”), who are
residents of Ohio, filed a summons and complaint against the
City in the United States District Court for the Southern
District of Ohio asserting diversity jurisdiction pursuant to
28 U.S.C. § 1332. See Id. Plaintiffs asserted
causes of action for negligence per se, ordinary negligence,
and loss of consortium. Id. Plaintiffs did not serve
the City with the summons and complaint until June 21, 2012.
See Affidavit of Service, ECF No. 7.
March 27, 2015, the Ohio district court issued an order
ruling it lacked personal jurisdiction over the City and
transferring the case to the United States District Court for
the District of South Carolina. See ECF No. 33. The City
has now filed a motion for summary judgment. See ECF
No. 91. Plaintiffs have filed a response in opposition, and
the City has filed a reply. See ECF Nos. 92 &
The Parties' Arguments
City moves for summary judgment on the basis that
Plaintiffs' action was not timely commenced.
Specifically, the City argues service did not occur before
the running of the two-year statute of limitations of the
South Carolina Tort Claims Act (“SCTCA”),
within 120 days after the filing of the summons and complaint
as required by section 15-3-20(B) of the South Carolina Code
(2005) and Rule 3(a)(2) of the South Carolina Rules of Civil
response, Plaintiffs argue Ohio's bodily injury statute
of limitations-not that of the SCTCA-governs this
action. Alternatively, Plaintiffs argue the City
should be equitably estopped from asserting the two-year
SCTCA limitations period as a defense.
Applicable Law and Analysis
The SCTCA's Two-Year Statute of Limitations
diversity action, a federal court must apply state law not
only to determine the relevant statute of limitations but
also to determine when a civil action is
“commenced” for purposes of the limitations
period. Walker v. Armco Steel Corp., 446
U.S. 740, 751-53 (1980); Ragan v. Merchants Transfer
& Warehouse Co., 337 U.S. 530, 534
(1949). See also Alday v. Tecphy Div.
Firminy, 10 F.Supp.2d 562, 563 (D.S.C. 1998) (“A
federal court sitting in diversity must follow state law in
determining when an action is commenced for purposes of
applying the statute of limitations.”),
aff'd, 182 F.3d 906 (4th Cir. 1999). South
Carolina law is applicable to this tort action because the
alleged injury occurred in South Carolina. Alday, 10
F.Supp.2d at 563.
SCTCA “governs all tort claims against governmental
entities and is the exclusive civil remedy available
in an action against a governmental entity or its
employees.” Shirley's Iron Works, Inc. v. City
of Union, 403 S.C. 560, 571, 743 S.E.2d 778, 783 (2013)
(emphasis added); see S.C. Code Ann. §
15-78-20(b) (2005) (“The remedy provided by this
chapter is the exclusive civil remedy available for
any tort committed by a governmental entity, its employees,
or its agents . . . .” (emphasis added)). The SCTCA imposes
a two-year statute of limitations for actions brought against
a governmental entity such as the City. S.C. Code Ann.
§ 15-78-110 (2005). Thus, as an initial matter, the
Court rejects Plaintiffs' argument that Ohio's bodily
injury statute of limitations governs this action: because
Plaintiffs' suit is against the City, which can be sued
only under the SCTCA, the SCTCA's two-year statute of
limitations applies to Plaintiffs' suit.
Plaintiffs' Action Was Not Timely Commenced
Carolina requires both filing of the summons and
complaint and service on the defendant to commence a
civil action. Section 15-3-20(B) of the South Carolina Code
provides: “A civil action is commenced when the summons
and complaint are filed with the clerk of court if actual
service is accomplished within one hundred twenty days after
filing.” S.C. Code Ann. ...