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Johnson v. Payless Shoe Source

February 05, 2004


Appeal from the Superior Court of the District of Columbia (CA-7273-01) (Hon. William M. Jackson, Motions Judge) (Hon. Michael L. Rankin, Trial Judge)

Before Terry and Ruiz, Associate Judges, and King, Senior Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued November 4, 2003

Plaintiff-appellant, Karen Johnson, appeals the trial court's decision to grant the motion of defendant-appellee, Payless Shoe Source, Inc., to dismiss the complaint for lack of service of process, and on the ground that the action is barred by the statute of limitations. *fn1 After considering the arguments and reviewing the record, we conclude that the trial court erroneously dismissed plaintiff's action, and accordingly remand the case for trial or other proceedings consistent with this opinion.


Plaintiff filed a civil action in the Superior Court on September 28, 2001 seeking damages in the amount of $25,000 for personal injuries she sustained when, in the course of selecting among defendant's footwear merchandise, a chair collapsed from under her, causing her to fall to the floor and be struck on the head by the chair's backrest. It is undisputed that plaintiff filed her action on the day that the statute of limitations period was set to expire. Plaintiff avers that she served her complaint on defendant on October 9, 2001 through its statutory agent - the Department of Consumer and Regulatory Affairs, Corporate Division ("DCRA") - because defendant did not then have a registered agent within the District of Columbia. *fn2

On December 7, 2001, the clerk of the Superior Court dismissed appellant's case for failure to file proof of service as req uired by Superior Court Rule of Civil Procedure ("Rule") 4 (m). See SUPER. CT. CIV. R. 4 (m) (requiring plaintiff to file proof of service within sixty days of filing the complaint, or else be subject to automatic dismissal without prejudice); see also Cameron v. Washington Metro. Area Transit Auth., 649 A.2d 291, 294 (D.C. 1994) (explaining that the rule confers no discretion with respect to dismissal in the event of noncompliance). The clerk of the Superior Court then mailed a notice of dismissal to defendant's corporate address on December 12, 2001. Although it is not clear in the record, defendant apparently received the notice some time shortly after it was dispatched. On December 17, 2001, plaintiff timely filed a motion to vacate the involuntary dismissal pursuant to Rule 41 (b) - oftentimes, as here, colloquially captioned as a "motion to reinstate" the complaint. See SUPER. CT. CIV. R. 41 (b) (authorizing the trial cou rt, inter alia, to vacate a Rule 4 (m) dismissal if the plaintiff files a motion within fourteen days of the dismissal's entry demonstrating "good cause" why the case should not be dismissed). Plaintiff's motion stated that her process server mailed an affidavit of service to the court on October 22, 2001, but surmised that the affidavit of service must have been delayed or lost in the mail as a consequence of the anthrax contamination of the Brentwood post office facility that processed the postal mail addressed to the courts of this jurisdiction at the relevant time. Because neither plaintiff nor her process server retained a copy of the purportedly lost affidavit of service, plaintiff attached a new affidavit by her process server dated December 14, 2001 attesting to the service of process on DCRA on October 9, 2001. The motion to reinstate was thereafter granted on January 3, 2002 by the motions court, Judge Jackson. Importantly, however, plaintiff admits that neither she nor the court sent a copy of the motion or the resulting order to defendant. *fn3

On February 5, 2002, the clerk of the Superior Court entered a default judgment against defendant for failure to respond to the complaint. See SUPER. CT. CIV. R. 55 (a) (authorizing the clerk to enter default when a party against whom judgment is sought has failed to plead or otherwise defend within the time allowed by the rules); see also SUPER. CT. CIV. R. 12 (a)(1) (requiring defendant's answer within twenty days of service of process). On February 14, 2002, defendant filed a consent motion to vacate the default, which was quickly granted. Thereafter, on March 25, 2002, defendant filed a contested motion (1) to dismiss plaintiff's complaint under Rule 12 (b) for failure to re-serve her complaint on defendant following "reinstatement" of the case on January 3, or alternatively, (2) to reconsider the Rule 41 (b) motion to reinstate the complaint on the ground that defendant did not receive notice of this motion and thus was denied an opportunity to oppose it. On June 7, 2002, the trial court, Judge Rankin, issued an order dismissing plaintiff's complaint (1) for insufficiency of service of process, and (2) on the ground that it had reconsidered plaintiff's motion to reinstate the complaint and reversed the January 3 order of the motions judge vacating the dismissal. Having determined that the m otions judge should not have vacated the dismissal without providing defendant an opportunity to oppose plaintiff's motion, the trial judge agreed with defendant that plaintiff's action was barred by the statute of limitations. This appeal followed.


We now turn to evaluate each of the bases upon which the trial court dismissed plaintiff's complaint.

A. Insufficiency of Service of Process

"[S]ince Super. Ct. Civ. R. 52 (a) does not require the trial court to issue findings of fact or conclusions of law on motions under Rule 12 (b), this court must, as a practical matter, conduct an independent review of the record whenever the trial court, as was the case here, grants a motion to dismiss without issuing findings of fact or conclusions of law." Vaughn v. United States, 579 A.2d 170, 172-73 (D.C. 1990). Although defendant made several arguments as to why service of process was improper, see discussion of other arguments at pages 6-9, infra, the motion granted by the trial court was predicated on the contention that plaintiff was required to re-serve her complaint once it had been "dismissed" on December 7, 2001, even though it was "reinstated" on January 3, 2002. This is the argument in support of the trial c court's ruling pressed in th e brief on appeal.

We disagree that the complaint had to be re-served for there to be effective service of process. Rule 41 (b) provides that any involuntary order of dismissal, including, as here, those entered under Rule 4 (m) for failure to timely file proof of service,

shall not take effect until fourteen (14) days after the date on which it is docketed, and shall be vacated upon the granting of a motion filed by plaintiff within such 14 day period showing ...

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