*fn1,The opinion of the court was delivered by: Ferren, Senior Judge,Fred B. Goldberg was on the brief for appellant.,ACHRAF BABA, APPELLANT, v. ANDREW S. GOLDSTEIN, APPELLEE." />

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Baba v. Goldstein

March 31, 2010 *fn1

ACHRAF BABA, APPELLANT,
v.
ANDREW S. GOLDSTEIN, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB3974-08) (Hon. Cheryl M. Long, Trial Judge).

The opinion of the court was delivered by: Ferren, Senior Judge

Submitted March 11, 2010

Before FISHER, Associate Judge, and FERREN and BELSON, Senior Judges.

In this appeal, Achraf Baba challenges the dismissal of his civil complaint for assault and battery, occasioned because he failed to comply with Super. Ct. Civ. R. 4 (m), which provides a deadline for service of process in a civil lawsuit. Baba argues that the trial court erred in failing to give due consideration to factors relevant to analyzing whether there was good cause why the case should not be dismissed. We agree that the court unduly narrowed its focus by excluding relevant factors from its consideration. We therefore must remand the case for the renewed exercise of trial court discretion.

I.

The events giving rise to Baba's complaint took place on June 26, 2007. Baba alleged that he was working as a pizza delivery man in the early hours of the morning when he arrived at defendant Andrew Goldstein's residence. Goldstein, apparently inebriated, refused to pay for the food, observing that it was late. When Baba would not relinquish the food, Goldstein allegedly took it and, without provocation, punched Baba in the mouth several times, fracturing Baba's jaw in two places.

Under the one-year statute of limitations applicable to intentional torts, Baba had until late June 2008 to sue Goldstein. See D.C. Code § 12-301 (4) (2001). Within less than a month after the incident, however, Baba filed a complaint on July 11, 2007, alleging assault and battery. This complaint was dismissed without prejudice, for reasons not clear on the record. (Baba says that the dismissal resulted from his "show of good faith" in negotiations between the parties whereas Goldstein insists that dismissal was ordered because Baba had "failed to serve" Goldstein and "failed to appear at the initial scheduling conference.")

Subsequently, on May 28, 2008, less than a month before the statute of limitations would have run, Baba filed the assault and battery complaint at issue in this appeal.

Pursuant to Super. Ct. Civ. R. 4, Baba had sixty days from the date of filing this complaint, or until July 27, 2008, to effect service on Goldstein and to "file either an acknowledgment of service or proof of service." Super. Ct. Civ. R. 4 (m). Under Rule 4 (m), Baba could make a motion to extend the time for service "[p]rior to the expiration of the foregoing time period." Id. A failure to comply with Rule 4 (m) normally occasions a dismissal without prejudice. Id.

The case was set for a scheduling conference on September 5, 2008, before Judge Beck. At that conference, Baba did not appear, and it became apparent that no acknowledgment or proof of service had been filed within the time frame established by Rule 4 (m). Judge Beck ordered the case dismissed without prejudice. In her Order, she stated: "As set forth in Rule 41 (b) of the Superior Court Rules of Civil Procedure, such a dismissal is subject to a timely motion to vacate upon a showing of good cause why the case should not be dismissed." The Order directed Baba to "address all the factors set forth in Cameron v. Washington Metro. Area Transit Auth., 649 A.2d 291, 293 (D.C. 1994), including an explanation for [his] failure to comply with the filing requirement in 4 (m)." Baba was also instructed to "explain any prejudice [he] would suffer if the claim were dismissed, for example, that the statute of limitations has run." Pursuant to Rule 41, Baba had fourteen days within which to file this motion. See Super. Ct. Civ. R. 41 (b).

In compliance with the rule and Judge Beck's Order, Baba filed a Rule 41 (b) motion on September 12. He stated that his counsel's computer had "crashed" early in the summer, causing several important dates to be lost, including the date for the scheduling conference on September 5. He also stated that defendant Goldstein appeared to be evading service, and he detailed at least two unsuccessful attempts before expiration of the sixty-day deadline to serve Goldstein at last-known addresses. Baba stated the name of a process-serving company he had employed and attached an affidavit detailing the company's diligent attempts to serve Goldstein. Finally, as instructed by Judge Beck, Baba stated the prejudice he would suffer if the dismissal were not vacated, namely, that the one-year statute of limitations had run and thus that dismissal would operate as a dismissal with prejudice.

In an Order dated September 19, 2008, Judge Beck vacated the dismissal, stating: "The court is satisfied, given the totality of the circumstances presented, that the Plaintiff has shown 'good cause why the case should not be dismissed.' See Super. Ct. Civ. R. 41 (b)." The judge further ordered that Baba serve Goldstein and file an affidavit establishing service by November 17. After timely filing for an extension until January 20, 2009, Baba successfully served Goldstein on January 16, 2009, and on the same day filed an affidavit of service.

Meanwhile, a calendar shift at the beginning of 2009 caused the case to change hands from Judge Beck to Judge Long. On February 5, 2009, Goldstein filed a Motion to Dismiss Plaintiff's Complaint, alleging a violation of Rule 4 (m) and essentially asking Judge Long to reconsider the Rule 41 (b) motion on which Judge Beck already had ruled. On March 17, after receiving Baba's Opposition to Defendant's Motion to Dismiss, the court granted Goldstein's motion, dismissing the ...


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