Miner v. CSX Transportation, Inc.

626 A.2d 908, 1993 D.C. App. LEXIS 146, 1993 WL 212778
CourtDistrict of Columbia Court of Appeals
DecidedJune 17, 1993
DocketNo. 91-CV-1505
StatusPublished
Cited by3 cases

This text of 626 A.2d 908 (Miner v. CSX Transportation, Inc.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miner v. CSX Transportation, Inc., 626 A.2d 908, 1993 D.C. App. LEXIS 146, 1993 WL 212778 (D.C. 1993).

Opinion

KERN, Senior Judge:

The trial court dismissed appellant’s personal injury action upon a motion to dismiss by appellees on the ground that it was time-barred because the statute of limitations had run.1 We reverse.

The essential facts are not in dispute. Appellant placed his complaint in the hands of the clerk for filing prior to the running of the statute of limitations, but the court clerk rejected and returned it to appellant because prepared summonses for each defendant were not presented with it.2 Appellant promptly prepared the summonses and again presented the complaint. The clerk did accept the later complaint for filing, but by then the statutory time for appellant to bring his personal injury action had run.

Appellees, in their motion to dismiss appellant’s action, asserted that the complaint was not filed “within the applicable limitations period for the filing of such claims.” [R. 21] In the legal memorandum appellees filed in support of their motion, [R. 37] they asserted that “the Complaint also was defective in that it was not signed by an attorney eligible to appear in this Court.”3 The trial court granted appellees’ motion to dismiss, without a hearing, concluding that the “complaint is time barred” and that appellant had “filed a defective complaint because neither plaintiff nor a member of the District of Columbia bar signed it.” [R. 64]

The first issue is whether under the particular circumstances here appellant filed his complaint within the three-year period of time set forth by the applicable statute of limitations. Concededly, he pre[910]*910sented his complaint for filing within the statutory limitation. Super.Ct.Civ.R. 3 provides that a “civil action is commenced by filing a complaint with the Court.” This court in Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C.1980) (en banc), recognized that Rule 3 “requires only the filing of a complaint to commence an action and thereby toll the statute of limitations; any questions as to a lack of diligence on the part of a plaintiff in obtaining service of process are to be addressed by means of a motion filed pursuant to Super.Ct.Civ.R. 41(b).” Id. at 70.

We pointed out in Varela that “any questions as to lack of diligence ... of a plaintiff in obtaining service of process” was not to impact upon the determination whether the complaint was timely. This is because, we noted, there exists a “completely different and separable array of considerations from the manner by which” an action is commenced and “service of process is to be made.” Id. at 67-68.

Appellees attempt to distinguish Varela, asserting [Brief at p. 4]: “[t]his appeal is quite different, since it involves the adequacy of plaintiffs [appellant’s] filing of his original action, not the adequacy of subsequent efforts to effect service of process.” Implicit in appellees’ argument is that a party cannot file its complaint to commence an action for the purpose of complying with the applicable statute of limitations unless and until such complaint is accompanied by a completed summons.

The rules of the Superior Court appear on their face to recognize that the filing of a complaint is a distinct and separate act from the delivery of a prepared summons. Thus, Rule 3 is entitled “Commencement of Action” whereas Rule 4 is entitled “Process.” Rule 4 states, in pertinent part: “A prepared summons ... shall be delivered to the Clerk at the time the complaint is filed.” [Emphasis added.] Our decision in Varela drew a distinction, for purposes of applying the statute of limitations, between “filing a complaint” and “obtaining service of process.” The delivery of the executed summons required by Rule 4 falls in the “Process” category. As such, appellant’s inability to effect service of his complaint at the time he filed it because he had failed to prepare summonses raised a consideration that is “different and separable” from the consideration of whether his complaint was timely filed.

Accordingly, we are constrained to conclude that the conscientious trial judge erred in dismissing appellant’s action on the ground that the filing of his complaint, as distinguished from the effecting service of his complaint, occurred after the applicable statute of limitations had run. Whatever relief appellees may have been entitled to as a result of the failure of appellant to deliver completed summonses to the clerk, it should not have been a dismissal of the action commenced by the complaint as time-barred.

We turn now to the trial court’s conclusion that appellant’s action was time-barred because he had “filed a defective complaint” when he presented his complaint (without summonses) for filing. In the trial court’s view, the complaint was defective because “neither plaintiff nor a member of the District of Columbia bar signed it.” However, the record reflects that the attorney who did sign the complaint was a member in good standing of the bar of the Illinois Supreme Court.

Rule 101(a) of the Superior Court Civil Rules governing practice and appearance of attorneys is divided into three paragraphs. The third paragraph provides that an attorney in good standing of the bar of the highest court of any state “may enter an appearance, and file pleadings in this Court, and, if granted permission by the Court, may participate in proceedings in this Court, pro hac vice, provided that such attorney joins of record a member in good standing of the District of Columbia Bar_” Rule 101(a)(3) goes on to provide:

An attorney seeking permission to appear under this section shall file a prae-cipe_ The attorney shall also serve a copy of the praecipe on the District of Columbia Court of Appeals’ Committee on Unauthorized Practice
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[911]*911Appellees urge [Brief at p. 9] that the correct reading of section 101(a)(8) is:

Initially, the attorney must file a praecipe containing the information required under the Rule and serve a copy of the praecipe on this Court’s Committee on Unauthorized Practice. Once this praecipe, which must also be signed by local counsel, has been filed and served, the out-of-state attorney may then file pleadings and other papers in the case, provided such documents bear the signature of local counsel. [Emphasis added.]

However, we note that Rule 101(a) does not state that an attorney appearing on behalf of a complainant who is a member in good standing of an out-of-state bar first must file a praecipe before he can file pleadings. Therefore, we are not persuaded that Rule 101(a)(3) required the trial court to conclude appellant’s complaint was defective and hence dismiss appellant’s action as out of time.

We are mindful of the need to govern the appearance and practice of attorneys in our court who are not members of the D.C. Bar. Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1124 (D.C.1988). There, we noted that in the case of a pro hac vice appearance “the contemporaneous entry of an appearance by a member of the District of Columbia Bar is required.” Id. at 1124 n. 12.4

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Cite This Page — Counsel Stack

Bluebook (online)
626 A.2d 908, 1993 D.C. App. LEXIS 146, 1993 WL 212778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miner-v-csx-transportation-inc-dc-1993.