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Rice v. Alpha Sec., Inc.

United States District Court, E.D. Virginia, Alexandria Division

April 16, 2013

ALPHA SECURITY, INC., et al., Defendants

For Jacqueline Rice, Plaintiff: Mary Ann Kelly, Law Offices of Mary Ann Kelly, Fairfax, VA.

For Alpha Security, Inc., Defendant: Douglas Conrad Meister, Meyers Rodbell & Rosenbaum PA, Riverdale, MD.

For Budget Motels, Inc., doing business as Comfort Inn Alexandria, Waterloo Hospitality, Inc., doing business as Comfort Inn Alexandria, Defendants: Nicholas DelVecchio SanFilippo, McGuireWoods LLP (McLean), McLean, VA; Stephen W. Robinson, McGuireWoods LLP, McLean, VA.


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Gerald Bruce Lee, United States District Judge.


THIS MATTER is before the Court on Defendants' motions to dismiss for insufficient service of process. (Docs. 4, 6, 9.)

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This case concerns Ms. Jacqueline Rice's employment discrimination claims against a hotel and the security firm the hotel contracted to provide services. Defendants' Motions present three issues before the Court.

The first issue is whether service is defective where Plaintiff took a nonsuit in Virginia state court one day before the expiration of the statutory one-year service period, the state court vacated the nonsuit order, upon Plaintiff's motion, seventeen days later, and Plaintiff perfected service one day after the nonsuit was vacated. The Court finds that service is defective in such a circumstance and thus grants Defendants' Motions on this issue. While the Virginia statute tolls the time for service during a nonsuit, such tolling does not apply where the nonsuit is later vacated. Vacating the nonsuit rendered the nonsuit order void. By vacating the nonsuit, rather than refiling the suit as contemplated by statute, the Court must consider the time for service to have continued as if Plaintiff never received the nonsuit order. As such, service was untimely and, in accordance with Virginia law, compels dismissal of this action.

The second issue is whether removal of this matter to this Court, after the one-year service period expired, provides Plaintiff additional time after removal to cure the failure to serve process on Defendants in accordance with Virginia law. The Court holds that removal does not provide Plaintiff additional time to serve process in a case that was procedurally " dead" prior to removal. State law governs procedural matters such as service for cases later removed to federal court. In Virginia, a case is effectively dead once the one-year period has passed without service. Removal cannot be used to resurrect claims no longer viable under state law. Therefore, the Court grants Defendants' Motions.

The third issue is whether the federal nature of Plaintiff's civil rights claims precludes state procedure from barring the action. The Court holds that the federal nature of Plaintiff's claims does not preclude the application of state service requirements. Virginia law does not burden or bar Plaintiff's federal civil rights action, as it actually provided Plaintiff a longer service period than if she had initially filed her Complaint in federal court. As such, the Court grants Defendants' Motions.


Plaintiff Jacqueline Rice brings this action against Defendants Budget Motels, Incorporated and Waterloo Hospitality, Incorporated (" Comfort Inn Defendants" ) and Alpha Security, Incorporated, alleging sexual harassment and retaliation. (Am. Compl. ¶ ¶ 47-53, Doc. 5.) The facts pertinent to this Motion rely heavily on acts or omissions arising after the occurrence of her substantive claims.

Ms. Rice's claims arise from her work as a member of the night shift security team at a Comfort Inn hotel in Alexandria, Virginia. Ms. Rice alleges that Mr. Feysal Dahir sexually harassed her and created a hostile work environment. ( Id. ¶ 21.) Ms. Rice reported his misconduct to Alpha Security, her employer, on November 19, 2006, and Dahir threatened to terminate her as a result. ( Id. ¶ ¶ 23, 27-29.) On February 9, 2007, Ms. Rice filed a charge of discrimination with the Equal Employment Opportunity Commission (" EEOC" ) against all Defendants, alleging repeated retaliation for her complaint. ( Id. ¶ 41.) In May 2007, Alpha Security terminated Ms. Rice's employment. ( Id. ¶ 45.) The EEOC investigated Plaintiff's discrimination charge and issued a " cause" determination in Ms. Rice's favor. ( Id. ¶ 46.) This determination notice informed Ms. Rice of her right to file a federal employment

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discrimination lawsuit within ninety (90) days of the EEOC's finding.

Ms. Rice timely filed her original Complaint in the Circuit Court of Fairfax County, Virginia on August 15, 2011, but she did not serve the summons on Defendants. (Pl.'s Opp'n at 4, Doc. 12.) In August 2012, Ms. Rice took the following steps to serve process on Defendants:

o On August 3, 2012, prior to issuing service on any defendant, Ms. Rice filed a motion for nonsuit in the Circuit Court of Fairfax County. (Def. Alpha Security Mem. Supp. Mot. Dismiss [" Def. Alpha Security's Mem." ] Ex. 2, Doc. 4-1.)
o On August 14, 2012, the Circuit Court entered an order granting Ms. Rice a nonsuit concerning all claims against all Defendants. (Def. Alpha Security's Mem. Ex. 3 (Order, Rice v. Alpha Security, Inc., No. 2011-11858 (Va. Cir. Ct. Aug. 14, 2012), Doc. 4-1.)
o On August 30, 2012, Ms. Rice, through counsel, requested the Circuit Court vacate the nonsuit. (Def. Alpha Security's Mem. Ex. 2, Doc. 4-1.) That same day, the Circuit Court entered an order vacating the nonsuit. (Def. Alpha Security's Mem. Ex. 4 (Order, Rice v. Alpha Security, Inc., No. 2011-11858 (Va. Cir. Ct. Aug. 30, 2012).) Ms. Rice then attempted to serve Defendants' registered agents but they were not in their offices and their assistants indicated that Defendants did not authorize them to accept service in their absence. (Pl.'s Opp'n at 4.)
o On August 31, 2012, when the agents returned to their offices, Ms. Rice perfected service on Defendants. ( Id. )

After receiving Plaintiff completed service on August 31, 2012, the following actions occurred:

o On September 13, 2012, the day before the Circuit Court would hear Plaintiff's motion to amend her complaint, Defendants removed this action to this Court. ( See Doc. 1.)
o On September 18, 2012, Alpha Security filed a Motion to Dismiss Plaintiff's Complaint with prejudice for insufficient service and lack of personal jurisdiction. (Doc. 4.)
o On September 20, 2012, Plaintiff filed an Amended Complaint providing more detailed allegations of her claims. (Doc. 5.)
o On September 21, 2012, Alpha Security filed a Motion to Dismiss Plaintiff's Amended Complaint, incorporating by reference all the arguments and exhibits in its Motion to Dismiss the original Complaint. (Doc. 6.)
o On October 3, 2012, the Comfort Inn Defendants filed a Motion to Dismiss Ms. Rice's Amended Complaint. (Doc. 9.)

The Court now considers Defendants' Motions to Dismiss Plaintiff's Amended Complaint. The Court heard oral arguments on Defendants' Motions on October 26, 2012. On October 29, 2012, the Court issued a Short Order denying the Motions for reasons to be stated. (Doc. 21.) On December 20, 2012, the Court issued an Order staying the October 26 Order, staying discovery, and requiring the parties to re-argue the Motions on January 11, 2012. (Doc. 29.) Having considered the matter a second time, the Court now rules on Defendants' Motions.


A. Standard of Review

1. Sufficiency of Service

Federal Rule of Civil Procedure 12(b)(5) permits dismissal for insufficient

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service of process. Fed.R.Civ.P. 12 (b)(5) (2013). Where a defendant raises a Rule 12(b)(5) challenge to sufficiency of service, the plaintiff bears the burden to establish that service of process conformed with Federal Rule of Civil Procedure 4. See, e.g., Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003). " In determining whether the plaintiff has satisfied his burden, the technical requirements of service should be construed liberally as long as the defendant had actual notice of the pending suit." Id. (citing Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963)). " When there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process. But the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).

2. Personal Jurisdiction

Pursuant to Federal Rule of Civil Procedure 12 (b)(2), a court may dismiss a case for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The plaintiff bears the burden of establishing that personal jurisdiction exists by a preponderance of evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The interplay between service and personal jurisdiction is such that, " [a]bsent waiver or consent, a failure to obtain proper service on the defendant deprives ...

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