United States District Court, D. South Carolina, Spartanburg Division
Timothy M. Cain United States District Judge.
matter is before the court on Defendant's Motion to
Dismiss (ECF No. 6) and Plaintiff's Motion for Summary
Judgment (ECF No. 9). Plaintiff's complaint alleges
employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in
Employment Act (“ADEA”). Both parties are represented
by counsel. In accordance with 28 U.S.C. § 636(b)(1)(A)
and Local Civil Rule 73.02(B)(2)(g), D.S.C., this matter was
referred to a magistrate judge for pretrial handling. Before
the court is the magistrate judge's Report and
Recommendation (“Report”), which recommends that
the court grant Defendant's Motion to Dismiss and deny
Plaintiff's Motion for Summary Judgment. (ECF No. 33).
The magistrate judge notified the parties of their right to
file objections to the Report. Id. at 7. Plaintiff
filed timely objections to the Report (ECF No. 34), and
Defendant did not file objections. Defendant responded to
Plaintiff's objections. (ECF No. 36). The time for
objections has now run, and the matter is now ripe for
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
filed a summons and complaint in the Spartanburg County Court
of Common Pleas on September 11, 2017. (ECF No. 1-1 at 4 -
9). Thereafter, Plaintiff served the summons and complaint on
Defendant through Defendant's Registered Agent on June
13, 2018. (ECF No. 1-1 at 2, 11). Defendant filed its Notice
of Removal with this court on July 12, 2018. (ECF No. 1). On
July 19, 2018, Defendant filed a Motion to Dismiss. (ECF No.
6). Plaintiff responded to this motion (ECF No. 10), and
Defendant replied (ECF No. 19). On August 1, 2018, Plaintiff
filed a Motion for Summary Judgment. (ECF No. 9). Defendant
responded to this motion (ECF No. 18), and Plaintiff replied
(ECF No. 25).
LAW AND ANALYSIS
argues that this case should be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(5) for insufficient service of
process. Defendant contends Plaintiff “fail[ed] to
commence the action in a timely manner as required by Rule
3(a) [of the] South Carolina Rules of Civil Procedure.”
(ECF No. 6). As noted above, this action was originally filed
in state court, and, accordingly, the service of the summons
and complaint is required to be in compliance with South
Carolina Rules of Civil Procedure. See, e.g., Rice v.
Alpha Sec., Inc., 556 Fed. App'x 257, 257 (4th Cir.
2014) (applying Virginia law as to whether or not service of
process was proper when the case was filed in state court and
then removed to federal court); 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
South Carolina law,
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.
Rule 3(a), SCRCP.
magistrate judge noted, Plaintiff filed its summons and
complaint in the Spartanburg Court of Common Pleas on
September 11, 2017. (ECF No. 33 at 4). However, Plaintiff did
not serve Defendant with the summons and complaint until June
15, 2018, (ECF Nos. 6-2 at 11; 10 at 2; 33 at 4), which was
277 days after the summons and complaint were filed in state
court. Accordingly, the magistrate judge recommends dismissal
for insufficient service to process because actual service
was not timely, and, therefore, the action was never properly
“commenced” in state court. (ECF No. 33 at 3, 5).
objections, Plaintiff argues that the ninety-day period in
which a litigant must file suit after receiving notice of
right to sue under Title VII of the Civil Rights Act of 1964
and under the ADEA is not a “statute of
limitations.” (ECF No. 34 at 3). Therefore, it seems
that it is Plaintiff's position that Rule 3 of the South
Carolina Rule of Civil Procedure is inapplicable.
statute of limitations, by definition, is a “law that
bars claims after a specified period, specifically a statute
establishing a time limit for suing in a civil case . . .
.” Statute of Limitations, Black's Law
Dictionary (10th ed. 2014). Notably, “[a] claimant
who fails to file a complaint within the ninety-day statutory
period mandated by Title VII, 42 U.S.C. § 2000e-5(f)
(1994), and the ADEA, 29 U.S.C. § 626(e) (1994),
generally forfeits [his] right to pursue [his] claims.”
Birch v. Peters, 25 Fed. App'x 122, 122 (4th
Cir. 2001) (citing Baldwin Cty. Welcome Ctr. v.
Brown, 466 U.S. 147, 149 - 51 (1984)); see also Mann
v. Stand. Prods., Inc., 532 Fed. App'x 417, 418 (4th
Cir. 2013) (affirming dismissal of case when claimant failed
to file complaint within the ninety days); Angeles v.
Dollar Tree Stores, Inc., 494 Fed. App'x 326, 222
(4th Cir. 2012) (affirming dismissal of a case where claimant
failed to file complaint within the ninety days).
in several unpublished opinions, the Fourth Circuit Court of
Appeals has specifically referred to this ninety-day period
as a “statute of limitations.” See Mann,
532 Fed. App'x at 418 (referring to the period as the
“ninety-day statute of limitations period for Title VII
actions”); Angeles, 494 Fed. App'x at 329
(referring to the time in which a Title VII complaint must be
filed as a “statute of limitations period” and a
“limitations period”). Recently, in Burris v.
CSX Transportation Company, Incorporated, a court in the
District of South Carolina treated the ninety-day limit as a
“statute of limitations” and dismissed the
claimant's ADEA and Title VII claims because, while the
claimant filed the case within the ...