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Thompson v. District of Columbia

December 16, 2004

AVONDA J. THOMPSON, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia (CA-2896-03). (Hon. Jeanette J. Clark, Trial Judge).

Before Terry and Washington, Associate Judges, and Pryor, Senior Judge.

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

Submitted October 28, 2004

This is an appeal from an order of the Superior Court denying appellant's motion to reinstate her complaint, which had been dismissed because of her failure to comply with Super. Ct. Civ. R. 4 (j). Appellant contends that the trial court committed reversible error, both in granting the motion of the District of Columbia to dismiss her complaint and in denying her motion under Super. Ct. Civ. R. 41 (b) to reinstate the complaint. We find no error in either ruling, and thus we affirm both the trial court's grant of the motion to dismiss and its denial of the motion to reinstate.

I.

On April 14, 2003, appellant Thompson filed a complaint against the District of Columbia, the District of Columbia Fire Department, and William McCluskey, a fireman employed by the District of Columbia, for personal injuries she sustained on April 26, 2000, when a fire truck driven by McCluskey allegedly struck the rear of appellant's car while it was lawfully stopped at an intersection. The complaint alleged that McCluskey "operat[ed] that motor vehicle [the fire truck] in a negligent manner."*fn1

Appellant mailed the summons and complaint to the Corporation Counsel*fn2 on April 16. On June 23 the District of Columbia*fn3 filed a motion to dismiss, arguing that the complaint against it should be dismissed for insufficiency of service of process because appellant failed to serve the Mayor, as required by Super. Ct. Civ. R. 4 (j).*fn4 Appellant filed an opposition, arguing that she had substantially complied with Rule 4 (j) by serving the Corporation Counsel.

The trial court granted the District's motion to dismiss. In its order the court said:

Plaintiff admitted that the Mayor was not specifically served a copy of the summons. See Opposition at 3-5. Super. Ct. Civ. R. 4 (j) requires that both the Mayor and the Corporation Counsel shall be served. Service was required to be effected within sixty days of the filing of the complaint. See Super. Ct. Civ. R. 4 (m). The record does not contain an affidavit of service on the Mayor. Therefore, the case is dismissed, with prejudice.

Appellant then filed a "motion to revise" the order dismissing the case. For the most part, the arguments in support of that motion were substantially identical to those she had made in her initial opposition to the District's motion to dismiss. Appellant also contended that the complaint should be reinstated pursuant to Super. Ct. Civ. R. 41 (b) for good cause shown.*fn5 Further, she asserted, but without any additional supporting argument, that the order should be set aside under Rule 59, 60 (b)(1), 60 (b)(5), or 60 (b)(6). The trial court, treating the "motion to revise" as a motion to vacate the dismissal and reinstate the complaint, denied the motion, and appellant noted this appeal.

II.

A. Rules 4 (j) and 4 (m)

Appellant argues that the trial court erred when it granted the District's motion to dismiss for improper service of process. She maintains that "the purpose of Rule 4 (j) is substantially satisfied by service of process on the Corporation Counsel, since [he] is a statutory agent of the mayor," and that dismissal would severely prejudice her because, by the time the dismissal was entered, the three-year statute of limitations*fn6 had run. Appellant's argument is without merit.

The language of Rule 4 (j) is clear and unambiguous; see note 4, supra. As this court has specifically held, "in order to effect proper service upon the District, a plaintiff must serve the Mayor and Corporation Counsel." Dorsey v. District of Columbia, 839 A.2d 667, 668 (D.C. 2003) (emphasis in original). In addition, Rule 4 (m) requires that proof of service be filed "as to each defendant." If such proof of service is absent, "the plain language of Rule 4 (m) compels automatic dismissal . . . and does not permit the court to exercise any discretion." Id. at 669 (citations and internal quotation marks omitted); accord, Cameron v. Washington Metropolitan Area Transit Authority, 649 A.2d 291, 293 (D.C. 1994). In this case, because appellant did not serve the ...


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