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Burris v. CSX Transportation Co., Inc.

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

March 14, 2018

MARVIN BURRIS, Plaintiff,
v.
CSX TRANSPORTATION COMPANY, INC., Defendant.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff originally filed this action in the Court of Common Pleas, Florence County, South Carolina, alleging claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and discrimination and harassment in violation of 42 U.S.C. § 1981. Defendant removed the action to this Court. Presently before the court is Defendant's Motion to Dismiss (ECF No. 4) Plaintiff's Title VII and ADEA claims for insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.

         II. PROCEDURAL HISTORY

         Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race and age discrimination and harassment and thereafter received a Notice of Right to Sue from the EEOC dated September 14, 2016. Compl. ¶ 7. He filed his complaint in state court on December 14, 2016. He served Defendant on September 6, 2017, 266 days after he filed his complaint. See Affidavit of Service (Ex. to Def. Notice of Removal). Defendant then removed the action to this court and filed the present Motion to Dismiss.

         III. DISCUSSION

         Defendant moves for dismissal[1] of Plaintiff's Title VII and ADEA claims based on South Carolina Rule of Civil Procedure 3(a), which 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.

S.C.R.Civ.P. 3(a).

         Both Title VII and the ADEA have a ninety-day statute of limitations that runs from the issuance of a right-to-sue letter by the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C.§ 626(e) (ADEA). 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. As stated above, Plaintiff did not serve Defendant with the summons and complaint until September 6, 2017, 266 days after he filed them with the court. Dismissal is appropriate when a plaintiff fails to timely commence an action. See Kinder v. City of Myrtle Beach, No. 4:15-CV-01416-RBH, 2017 WL 227969, at *4 (D.S.C. Jan. 19, 2017), aff'd in relevant part, appeal dismissed in part, 700 Fed.Appx. 287 (4th Cir. 2017); Brown v. Marriot Int'l, Inc., No. 2:04-cv-02378-CWH, 2007 WL 1840231, at *1-2 (D.S.C. June 22, 2007) (applying South Carolina Rule of Civil Procedure 3 to determine an action was not “commenced” within the applicable statute of limitations).

         Plaintiff argues that Defendant's reliance on the state court rule is misplaced. However, this action originated in state court. It was filed and served while pending in state court. State courts hearing federal law claims utilize their own procedural rules so long as they do not infringe upon the substantive federal law at issue. See Johnson v. Fankell, 520 U.S. 911, 919, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) (noting the general rule bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them (citations omitted)); cf. Seabrooks v. Aiken Cty., 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.”) This 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.” Rice v. Alpha Sec., Inc., 556 Fed.Appx. 257, 260 (4th Cir. 2014).[2]

         Plaintiff also argues that the timing for commencement of the action should be tolled because he withheld service for a period of time to allow his union to pursue any remedies set forth in the collective bargaining agreement. Plaintiff asserts that he inquired into the status of his union's efforts by letter dated March 1, 2017, and requested clarity as to how his involvement would impact his civil action. The Union notified Plaintiff on October 11, 2017, that it would no longer be handling Plaintiff's claim. However, participation in a collectively-bargained grievance procedure does not toll the limitations period for bringing a Title VII claim. See International Union of Electrical, Radio and Machine Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (pursuit of grievance procedures under labor agreement does not toll period for filing Title VII claim). Plaintiff's participation in his union's grievance process “did not prevent him from pursuing the remedies of Title VII, such remedies being independent of the pre-existing remedies available to him through the grievance [] procedures.” Epps v. Cont'l Can Co., No. C-76-554-WS, 1978 WL 13851, at *1 (M.D. N.C. May 23, 1978), ...


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