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06/17/93 JACK G. MINER v. CSX TRANSPORTATION

June 17, 1993

JACK G. MINER, APPELLANT
v.
CSX TRANSPORTATION, INC., ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Terry and Wagner, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Kern

KERN, Senior Judge : The trial court dismissed appellant's personal injury action upon a motion to dismiss by appellees on the ground that it was time-barred because the statute of limitations had run. *fn1 We reverse.

The essential facts are not in dispute. Appellant placed his complaint in the hands of the clerk for prior to the running of the statute of limitations, but the court clerk rejected and returned it to appellant because prepared summonses for each defendant were not presented with it. *fn2 Appellant promptly prepared the summonses and again presented the complaint. The clerk did accept the later complaint for filing, but by then the statutory time for appellant to bring his personal injury action had run.

Appellees, in their motion to dismiss appellant's action, asserted that the complaint was not filed "within the applicable limitations period for the filing of such claims." [R. 21] In the legal memorandum appellees filed in support of their motion, [R. 37] they asserted that "the Complaint also was defective in that it was not signed by an attorney eligible to appear in this Court." *fn3 The trial court granted appellees' motion to dismiss, without a hearing, concluding that the "complaint is time barred" and that appellant had "filed a defective complaint because neither plaintiff nor a member of the District of Columbia bar signed it." [R. 64]

The first issue is whether under the particular circumstances here appellant filed his complaint within the three-year period of time set forth by the applicable statute of limitations. Concededly, he presented his complaint for filing within the statutory limitation. Super. Ct. Civ. R. 3 provides that a "civil action is commenced by filing a complaint with the Court." This court in Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C. 1980) (en banc), recognized that Rule 3 "requires only the filing of a complaint to commence an action and thereby toll the statute of limitations; any questions as to a lack of diligence on the part of a plaintiff in obtaining service of process are to be addressed by means of a motion filed pursuant to Super. Ct. Civ. R. 41(b)." Id. at 70.

We pointed out in Varela that "any questions as to lack of diligence . . . of a plaintiff in obtaining service of process" was not to impact upon the determination whether the complaint was timely. This is because, we noted, there exists a "completely different and separable array of considerations from the manner by which" an action is commenced and "service of process is to be made." Id. at 67-68.

Appellees attempt to distinguish Varela asserting [Brief at p. 4]: "this appeal is quite different, since it involves the adequacy of plaintiff's [appellant's] filing of his original action, not the adequacy of subsequent efforts to effect service of process." Implicit in appellees' argument is that a party cannot file its complaint to commence an action for the purpose of complying with the applicable statute of limitations unless and until such complaint is accompanied by a completed summons.

The rules of the Superior Court appear on their face to recognize that the filing of a complaint is a distinct and separate act from the delivery of a prepared summons. Thus, Rule 3 is entitled "Commencement of Action" whereas Rule 4 is entitled "Process." Rule 4 states, in pertinent part: "A prepared summons . . . shall be delivered to the Clerk at the time the complaint is filed." [Emphasis added.] Our decision in Varela drew a distinction, for purposes of applying the statute of limitations, between "filing a complaint" and "obtaining service of process." The delivery of the executed summons required by Rule 4 falls in the "Process" category. As such, appellant's inability to effect service of his complaint at the time he filed it because he had failed to prepare summonses raised a consideration that is "different and separable" from the consideration of whether his complaint was timely filed.

Accordingly, we are constrained to conclude that the conscientious trial Judge erred in dismissing appellant's action on the ground that the filing of his complaint, as distinguished from the effecting service of his complaint, occurred after the applicable statute of limitations had run. Whatever relief appellees may have been entitled to as a result of the failure of appellant to deliver completed summonses to the clerk, it should not have been a dismissal of the action commenced by the complaint as time-barred.

We turn now to the trial court's Conclusion that appellant's action was time-barred because he had "filed a defective complaint" when he presented his complaint (without summonses) for filing. In the trial court's view, the complaint was defective because "neither plaintiff nor a member of the District of Columbia bar signed it." However, the record reflects that the attorney who did sign the complaint was a member in good standing of the bar of the Illinois Supreme Court.

Rule 101 (a) of the Superior Court Civil Rules governing practice and appearance of attorneys is divided into three paragraphs. The third paragraph provides that an attorney in good standing of the bar of the highest court of any state "may enter an appearance, and file pleadings in this Court, and, if granted permission by the Court, may participate in proceedings in this Court, pro hac vice, provided that such attorney joins of record a member in good standing of the District of Columbia Bar. . . ." Rule 101 (a)(3) goes on to provide:

An attorney seeking permission to appear under this section shall file a praecipe. . . . The attorney shall also serve a copy of the praecipe on the District of Columbia Court of ...


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