                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                             )
Charles H. Rogers, Jr.,                      )
                                             )
      Plaintiff,                             )
                                             )
             v.                              )                 Civil No. 1:14-cv-01650 (APM)
                                             )
Amalgamated Transit Union Local 689, et al., )
                                             )
      Defendants.                            )
_________________________________________ )


                          MEMORANDUM OPINION AND ORDER

I.     INTRODUCTION

       Defendant Amalgamated Transit Union, Local 689, AFL-CIO (“Local 689”) moves to

dismiss Plaintiff Charles Rogers’ Complaint for a second time. The court denied Local 689’s first

motion to dismiss, when it extended the time for service and relieved Rogers of his failure to

properly serve the union within 120 days, as required under Federal Rule of Civil Procedure 4.

With Rogers now having perfected service, Local 689 tries a different tact, arguing that Plaintiff’s

sole claim against it for breach of duty of fair representation is barred by the six-month statute of

limitations. Local 689 argues that the limitations period that tolled when Rogers filed his lawsuit

began to run again after the 120-day service period expired without service of the complaint.

Because Rogers’ proper service came more than six months after his claim began to accrue, Local

689 asserts that his claim is barred by the statute of limitations.

       The court disagrees. The tolling of the limitations period that occurred when Rogers filed

suit remained in effect during the additional time the court granted Rogers to perfect service. Thus,

because Rogers filed suit within the six-month limitations period and completed service within the
additional time afforded by the court, his claim is not time barred. Local 689’s second motion to

dismiss is therefore denied.

II.    BACKGROUND

       A full recitation of the background facts is set forth in Rogers v. Amalgamated Transit

Union Local 689, __ F. Supp. 3d __, 14-cv-1650, 2015 WL 1323348, at *1-2 (D.D.C. Mar. 23,

2015). The court, therefore, provides only an abbreviated version here. On August 28, 2014,

Rogers filed his complaint in the District of Columbia Superior Court, alleging that his union,

Local 689, breached its duty to fairly represent him during an arbitration with his employer, the

Washington Metropolitan Transit Authority (“WMATA”). Rogers filed his suit within six months

of the arbitration panel’s adverse decision, which gave rise to his claim against Local 689. After

WMATA removed the case to this court, see Notice of Removal, ECF No. 1, Local 689 moved to

dismiss on the ground that Rogers had failed to serve it with process and instead had served a

related entity with a different address.

       On March 23, 2015, this court denied Local 689’s motion to dismiss. See Rogers, 2015

WL 1323348, at *1. It ruled that Rogers had failed to serve the complaint within the 120 days

allowed under Rule 4 and had not shown good cause to warrant his motion to extend time. Id. at

*2-4. The court nevertheless exercised its discretion under Rule 4 and afforded Rogers an

additional 14 days to serve the complaint, largely because dismissal of the complaint would have

resulted in Rogers’ claim becoming barred by the applicable six-month limitations period. Id. at

*5-6. Four days later, on March 27, 2015, Rogers successfully served Defendant Local 689.

Def. Local 689’s Mem. In Supp. Of Mot. To Dismiss (Def.’s Mem.) at 7, ECF No. 15-1.




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III.   DISCUSSION

       Local 689 argues that, notwithstanding Rogers’ completion of service within the extra time

granted by the court, his claim is time-barred because he did not complete service within the six-

month limitations period. Local 689 acknowledges that Rogers timely filed suit within the

limitations period and that, upon the suit’s filing, the limitations period stopped running. But it

argues that, when Rogers failed to complete service within the 120 days allowed under Rule 4, the

limitations period restarted. Because Rogers served Local 689 after the six-month limitations

period had run, Local 689 argues that his claim is time-barred.

       Though the court shares Local 689’s frustration with Plaintiff’s lack of diligence in service,

its argument here misconstrues the law. Local 689 is correct that a suit cannot escape a limitations

bar simply by its filing. “Suits commenced in accordance with Rule 3 or a federal statute still risk

dismissal if process is not served within 120 days of filing or an extension of time for doing so is

not secured from the court.” 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1056 (3d ed. 2002). A plaintiff may seek to extend the 120-day period in which to

effect service by showing good cause or appealing to the court’s discretion under Rule 4(m). Id.

This court extended Rogers’ time to serve Local 689 under Rule 4(m).

       The question here then is whether the limitations period remained tolled during the extra

time that the court afforded Rogers to complete service. It did. Though our Court of Appeals

appears not have addressed this issue, the Ninth Circuit Court of Appeals did so in Mann v.

American Airlines, 324 F.3d 1088 (9th Cir. 2003). In Mann, as here, the plaintiff had failed to

serve his complaint within 120 days but received additional time under Rule 4(m) to complete

service. Though he served the complaint during the extra time, the trial court nevertheless

dismissed his complaint as time barred, based on the apparent belief that the statute of limitations



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began to run again when the 120 days expired. See id. at 1090-91. The Ninth Circuit reversed,

holding that “the failure to serve process within Rule 4(m)’s 120-day period does not affect the

tolling of the statute of limitations unless the failure to serve process causes the district court to

dismiss the action.” Id. at 1091. “Once a complaint is filed, the statute of limitations is tolled

unless and until the district court dismisses the action.” Id. at 1090.

       The decision in Mann is consistent with the discretion afforded courts to extend time to

serve under Rule 4(m). The advisory committee notes contemplate that a district court may

exercise its discretion to avoid the harsh consequence of dismissal arising from an expired

limitations period: “Relief may be justified, for example, if the applicable statute of limitations

would bar the re-filed action.” Fed. R. Civ. P. 4 advisory committee’s note (1993 Amendments,

Subdivision (m)); see also Battle v. District of Columbia, 21 F. Supp. 3d 42, 46 (D.D.C. 2014)

(identifying as a factor in deciding whether to grant additional time to serve under Rule 4(m)

“whether the statute of limitations would bar a re-filed action”). The rule that Local 689

advocates—that the limitations period starts to run after expiration of the 120 days even when the

court extends the time for service—in many instances would nullify the very discretion Rule 4(m)

gives to courts. Often, plaintiffs do not file until the eve of the statue of limitations’ expiration.

If such a plaintiff, for whatever reason, does not complete service within 120 days, the expiration

of the limitations period effectively would divest the court of its discretion to extend time under

Rule 4(m). That is precisely the opposite of how the advisory committee contemplated the rule’s

operation.

       The case relied upon by Local 689, Rudder v. Williams, 47 F. Supp. 3d 47 (D.D.C. 2014),

is readily distinguishable. There, the plaintiffs failed to serve their timely filed initial complaint

on a defendant, but years later served an amended complaint on the defendant after the limitations



                                                  4
 
period had expired. Plaintiffs argued that their initial, never-served complaint tolled the statute of

limitations. Id. at 52. The court ruled that the mere filing of a complaint does not indefinitely toll

the limitations period and dismissed the amended complaint as barred by the statute of limitations.

Id. (“[I]t cannot be—and is not—the rule that a never-served complaint tolls a statute of limitations

beyond the time allotted by Rule 4(m) for service.”). In so ruling, the court distinguished its case

from those in which late service under Rule 4(m) would not result in dismissal even if the

limitations period had run: “The cases plaintiffs cite in support of their position involve situations

where a complaint was filed within the statute of limitations period and served after the limitations

period would have run, but within the time period allowed (either by statute or by the court) for

service.” Id. at 51-52 (emphasis added) (citations omitted). That is precisely the situation here.

Plaintiff filed his complaint within the statute of limitations period, and although service occurred

after the limitations period would have run, the statute remained tolled because the court had

extended the time to complete service. Rudder therefore is a different case.

       Applying the correct rule here makes the court’s task an easy one. The statute of limitations

on Rogers’ claim began to run on March 4, 2014, the date of the adverse arbitration ruling, and

was tolled on August 28, 2014, when Plaintiff filed his complaint in Superior Court—a total of

177 days.    The statute of limitations remained tolled during the 120-day period prescribed by

Rule 4. See Mann, 324 F.3d at 1090. That 120-day period began running on October 2, 2014, the

date the case was removed to this court. See 4B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1137 n.3 (4th ed. 2015) (citing cases). Even though Rogers failed to

serve the complaint within the 120-day period, the court exercised its discretion under Rule 4(m)

and granted Plaintiff additional time to serve Local 689. The statute of limitations remained tolled

during this time. See Mann, 324 F.3d at 1090. Because Rogers completed service while the statute



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of limitations remained tolled, the six-month limitations period does not bar his suit against

Local 689.

IV.    CONCLUSION AND ORDER

       For the foregoing reasons, Defendant Local 689’s Motion to Dismiss is denied.



                                                                                                                     

Dated: July 21, 2015                                     Amit P. Mehta
                                                  United States District Judge 




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