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07/19/93 LEONARD FELDMAN v. BASIL C. GOGOS

DISTRICT OF COLUMBIA COURT OF APPEALS


July 19, 1993

LEONARD FELDMAN, APPELLANT
v.
BASIL C. GOGOS, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Cheryl M. Long, Trial Judge)

Before Steadman and Farrell, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge : On February 13, 1991, appellant Feldman sued appellee Gogos on a promissory note and an alleged subsequent written promise by Gogos to make certain payments in return for Feldman's forbearance in collecting the debt. The trial court dismissed the complaint without prejudice when Feldman was unable to effect service within the time prescribed by Super. Ct. Civ. R. 4 (j). Feldman then sought to reinstate the suit by showing that he had been diligent in attempting to serve Gogos and now had reason to believe service could be accomplished. The trial court found that "the representations of counsel indeed meritorious on the question of whether the action should be reinstated for the purpose of allowing a final opportunity to serve the defendant." Nevertheless, the court raised sua sponte the issue of whether the complaint had been filed within the applicable statute of limitations, and answered in the negative. The court concluded, therefore, that it was "without the power to vacate the dismissal," explaining that it never had jurisdiction over the instant dispute because the statute of limitations had expired at the outset of this litigation." The court therefore dismissed the complaint with prejudice.

This ruling was error. Normally, a statute of limitations erects no jurisdictional bar, and failure to plead within the limitations period does not deprive the court of "power" to entertain the suit. Rather, as we have held, "the statute of limitations is an affirmative defense which, under [Super. Ct. Civ. R.] 8 (c), 'must be set forth affirmatively in a responsive pleading,' and may be waived if not promptly pleaded." Whitener v. WMATA, 505 A.2d 457, 458 (D.C. 1986) (quoting Bergman v. United States, 551 F. Supp. 407, 423 (W.D. Mich. 1982)). *fn1 See also Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1167 (3d Cir. 1986) ("A statute of limitations time bar is not jurisdictional; rather, it constitutes an affirmative defense that is waived if the defendant fails to raise it in the answer"); Banks v. C & P Tel. Co., 256 U.S. App. D.C. 22, 33, 802 F.2d 1416, 1427 (1986) ("Unlike in the case of jurisdictional questions, . . . reliance on a statute of limitations is an affirmative defense and is waived if a party does not raise it in a timely fashion").

It follows that, "If a defendant fails to assert the statute of limitations defense, the district court ordinarily should not raise it sua sponte." Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987). See also Wagner v. Fawcett Publications, 307 F.2d 409, 412 (7th Cir. 1962), cert. denied, 373 U.S. 909 (1963); Krug v. Imbordino, 896 F.2d 395, 396 (9th Cir. 1990). There are exceptions, of course. Federal courts have held, for example, that a district Judge may dismiss sua sponte an in forma pauperis complaint under 28 U.S.C. 1915 (d) when it is apparent the statute of limitations has run. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993); Wiles v. Jones, 960 F.2d 750, 751 (8th Cir. 1992). We need not explore additional such exceptions. Assuming a trial court may raise the limitations issue sua sponte, *fn2 it should not do so unless, at a minimum, the expiration of the statute "is clear from the face of complaint." Gartrell, 981 F.2d at 256; see also Clark, (supra) note 2, 915 F.2d at 640 n.2.

In this case that fact is by no means clear from the complaint. Feldman alleged that Gogos made two partial payments on the obligation, one -- by check -- as late as April, 1988. Such "partial payment on a debt or obligation interrupts or tolls the statute of limitations." Dulberger v. Lippe, 202 A.2d 777, 778 (D.C. 1964). See also D.C. Code § 28-3504 ("Acknowledgement . . . in writing, signed by the party chargeable thereby," suffices "to take the case out of the operation of the statute of limitations"). Feldman filed the complaint in February, 1991, within the applicable three year limitations period. In these circumstances, although we do not decide the merits of the limitations issue, Feldman should at least be permitted to litigate it "when and if that defense is asserted . . . ." Davis, 810 F.2d at 45. *fn3 We emphasize that the trial court did not dismiss (or refuse to reinstate the complaint) on grounds of lack of due diligence in attempting service. See Super. Ct. Civ. R. 41 (b); Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C. 1980) (en banc). On the contrary, it found "meritorious" Feldman's representations on whether the action should be reinstated for the purpose of allowing a final opportunity to serve the defendant." Feldman should be afforded that opportunity.

Reversed.

NEWMAN, Senior Judge, Concurring: In this area of the law, I think it is advisable for the trial court to hew closer to the "never" teachings of e.g., Wagner v. Fawcett Publications, 307 F.2d 409, 412 (7th Cir. 1962) than to the "maybe sometimes" teaching of e.g., Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).


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