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Kinder v. City of Myrtle Beach

United States District Court, D. South Carolina, Florence Division

January 19, 2017

Deana J. Kinder and Anthony K. Kinder, Plaintiffs,
v.
City of Myrtle Beach and John Does 1-99, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge.

         This 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.[1]

         Summary Judgment Standard

         Summary 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).

         Moreover, “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.

         At the 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).

         Background

         On 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.

         On 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.[2] 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 & 94.

         Discussion

         I. The Parties' Arguments

         The 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”), [3] nor 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 Procedure.

         In response, Plaintiffs argue Ohio's bodily injury statute of limitations-not that of the SCTCA-governs this action.[4] Alternatively, Plaintiffs argue the City should be equitably estopped from asserting the two-year SCTCA limitations period as a defense.

         II. Applicable Law and Analysis

         A. The SCTCA's Two-Year Statute of Limitations Applies

         In a 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.[5] Walker v. Armco Steel Corp., 446 U.S. 740, 751-53 (1980); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534 (1949).[6] 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.

         The 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)).[7] The SCTCA imposes a two-year statute of limitations for actions brought against a governmental entity such as the City.[8] 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.

         B. Plaintiffs' Action Was Not Timely Commenced

         South 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. ...


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