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Melara v. China North Industries Corp.

September 30, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


This case comes before the Court after eight years of litigation between plaintiff Henry Melara and defendant China North Industries Corporation ("Norinco"), a state-owned company based in the People's Republic of China. Plaintiff's first complaint was filed in federal court in 2001, but dismissed in 2003 for failure to prosecute. See Hernandez v. Norinco N. China Indus. Corp. ("Melara I"), Civ. No. 01-1071, slip op. (D.D.C. Dec. 8, 2003) (Def. Mot. to Dismiss, Ex. 2). Plaintiff's second complaint, the pending action, was filed in the Superior Court for the District of Columbia in 2005 and removed to federal court in 2009. Before the Court is defendant's motion for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated herein, defendant's motion will be granted.


On May 17, 2000, plaintiff's mother, Eva Hernandez, was shot and killed with an assault weapon allegedly manufactured by defendant.*fn1 (Compl. ¶¶ 16-20, Notice of Removal, Ex. 1 [Dkt. #1].) In May 2001, plaintiff, as personal representative for the deceased, filed a complaint in the federal district court for the District of Columbia. See Complaint, Melara I., Civ. No. 01-1071 (D.D.C. May 15, 2001).*fn2 Plaintiff made several attempts to serve defendant before discovering, in spring 2003, that it was necessary to serve a version of the complaint translated into Mandarin. (Pl.'s Opp. to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") [Dkt. #7] at 5 & Ex. E.) Judge Kollar-Kotelly of this Court, to whom the prior case was assigned, set a deadline of October 31, 2003, for serving defendant. Melara I, slip op. at 3. The Court granted one request by plaintiff to extend the deadline to December 8, 2003. (Pl.'s Opp'n at 5.) After plaintiff failed to meet this deadline, the Court dismissed plaintiff's suit without prejudice for failure to prosecute his claim. Melara I, Civ. No. 01-1071, slip op. (D.D.C. Dec. 8, 2003).

The Court in Melara I held that it was not "powerless to let the case wither on the docket when a plaintiff fails to serve a foreign Defendant[,]" observing that plaintiff's counsel "knowingly sued a Chinese corporation" and "reasonably could have anticipated" that delays would occur. Melara I, slip op. at 3-4.It further found that the "primary source of delay" was "wrangling between [p]laintiff and [p]laintiffs' counsel" over the costs of translation, and that the "problems in effecting service stem[med] from [p]laintiffs' own failure to ascertain what would be needed to serve a Chinese manufacturer." Id. at 4. Noting the "ample opportunities" it had given plaintiff to "perfect service," the Court held that dismissal without prejudice pursuant to Rule 41(b) was appropriate. Id. at 4-5. Plaintiff appealed this decision to the Court of Appeals, which affirmed. Hernandez v. Norinco N. China Indus., Inc., 120 F. App'x 371, 371 (D.C. Cir. 2005) (per curiam).*fn3

On April 6, 2005, plaintiff filed this action in Superior Court for the District of Columbia. (Notice of Removal, Ex. 1 [Dkt. #1]) In his complaint, he alleged six violations of D.C. statutory or common law against Norinco and two other defendants -- KSI and China Sports Inc. (Id. Compl. ¶¶ 34-67.) On June 29, 2005, the Clerk of the District of Columbia Superior Court dismissed plaintiff's complaint as to all three defendants under Rule 4(m) of the Superior Court Rules of Civil Procedure. (See Dkt. #3-2, at 114-15.) The dismissal was vacated only as to Norinco, because Rule 4(m) does not apply to service in a foreign country. (Id.) Several more attempts at service failed for reasons ranging from failing to pay proper fees to using the wrong name for the defendant. (Pl.'s Opp'n, Exs. F-I.) On April 30, 2009, more than four years after filing for the second time and almost nine years after his cause of action arose, plaintiff was finally successful in his effort to serve defendant. (Notice of Removal, Ex. 1.) On May 27, 2009, defendant removed the lawsuit from D.C. Superior Court to this Court on diversity grounds. (Notice of Removal at 3.) Defendant now moves to dismiss plaintiff's claims for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).



Defendant argues that the statute of limitations bars all of plaintiff's claims. In the District of Columbia, the statute of limitations for a wrongful death claim is one year. D.C. Code § 16-2702. The statute of limitations on other tort claims that have accrued to the "legal representative of the deceased," D.C. Code § 12-101, is three years. D.C. Code § 12-301(8). Plaintiff admits that Ms. Hernandez was killed on May 17, 2000. (Pl.'s Opp'n at 2.) His pending complaint was not filed until April 7, 2005. Thus, plaintiff's wrongful death claim was filed almost four years too late and his remaining claims, all of which are brought in his capacity as legal representative of the deceased, were filed nearly two years after the statute of limitations expired. In response, and noting that his first complaint was timely filed and dismissed without prejudice in December 2003, plaintiff argues that the doctrines of equitable tolling and equitable estoppel should "intervene" and prevent the statute of limitations from barring his claims. (Id. at 8.)


"In evaluating a claim for equitable relief from a statute of limitations, [the Court] must be careful to distinguish between the two primary tolling doctrines." Chung v. U.S. Dep't of Justice, 333 F.3d 273, 278 (D.C. Cir. 2003). Equitable tolling allows courts to apply statutes of limitations "only where the purposes underlying them are met -- specifically, avoiding stale claims and ensuring the other party's ability adequately to prepare and defend the case." Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1998). Equitable estoppel is a "general equity principle" that applies where the defendant has taken "'active steps to prevent the plaintiff from suing in time.'" East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153, 160 n.21 (D.C. 1998) (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990)).

A. Equitable Tolling

Plaintiff mistakenly focuses on the way courts apply the equitable tolling doctrine under federal law, when in fact it is D.C. law that controls here. "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state." Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2007) (quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). Because the Erie doctrine applies to the District of Columbia, substantive D.C. law controls in a diversity case, id., and this Court will apply D.C. law regarding equitable tolling. See Jankovic v. Int'l Crisis Group, 494 F.3d 1080, 1086-87 (D.C. Cir. 2007) (applying D.C. law of equitable tolling in diversity action).*fn4

Although the "federal statutes of limitations are generally subject to equitable principles of tolling," Rotella v. Wood, 528 U.S. 549, 560 (2000), "District of Columbia law does not contemplate the invocation of equitable tolling in response to the assertion of the limitations defense following a dismissal without prejudice." Sayyad,674 A.2d at 905-06 (citing Dupree v. Jefferson, 666 F.2d 606, 611 (D.C. Cir. 1981)) (refusing to toll the statute of limitations where plaintiff "failed properly to serve the defendants in the case"). This rule of D.C. law applies even where "in individual cases, the ...

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