                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-2485


DERRICK QUINN,

                    Plaintiff - Appellant,

             v.

COPART OF CONNECTICUT, INC.,

                    Defendant - Appellee.



Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Timothy M. Cain, District Judge. (7:18-cv-01900-TMC)


Submitted: September 20, 2019                               Decided: November 14, 2019


Before NIEMEYER, HARRIS, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joshua Thomas Hawkins, Helena LeeAnn Jedziniak, HAWKINS & JEDZINIAK, LLC,
Greenville, South Carolina, for Appellant. Matthew S. Brown, LITTLER MENDELSON,
P.C., Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Derrick Quinn filed an employment discrimination suit against Copart of

Connecticut, Inc. (“Copart”), in the South Carolina Court of Common Pleas, alleging three

claims for relief: (1) gender discrimination, in violation of Title VII of the Civil Rights Act

of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2012 & Supp. 2019); (2) age

discrimination, in violation of Title VII *; and (3) hostile work environment and termination

based upon his age and/or race and/or sex. Following timely removal of the action to

federal court, Copart moved to dismiss the action for insufficient service of process

pursuant to Fed. R. Civ. P. 12(b)(5). Quinn moved for summary judgment on the ground

that Copart had failed to timely respond to his requests for admission (RFAs), which he

argued must be deemed admitted.

       Following a report and recommendation by the magistrate judge, the district court

adopted the magistrate judge’s recommendation, granted Copart’s motion to dismiss, and

denied as moot Quinn’s motion for summary judgment. The district court reasoned that,

to comply with S.C. R. Civ. P. 3(a), governing commencement of civil actions, Quinn was

required to serve his summons and complaint on Copart within either the statute of

limitations applicable to Title VII and ADEA claims—that is, 90 days after receiving a

right-to-sue letter from the Equal Employment Opportunity Commission (EEOC)—or

within 120 days of filing the summons and complaint in state court. Quinn appeals the


       *
        Title VII does not provide a cause of action for age discrimination. Instead, age
discrimination is prohibited under the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C.A. §§ 621-634 (West 2012 & Supp. 2019).

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district court’s judgment, challenging both the Rule 12(b)(5) dismissal and the denial of

his summary judgment motion. Finding no reversible error, we affirm.

       We review for abuse of discretion the district court’s dismissal for insufficient

service of process under Rule 12(b)(5). See Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d

700, 708 (4th Cir. 1993). “A district court abuses its discretion if it relies on an error of

law or a clearly erroneous factual finding.” Verisign, Inc. v. XYZ.COM LLC, 891 F.3d 481,

484 (4th Cir. 2018) (internal quotation marks omitted).

       On appeal, Quinn does not challenge the district court’s determination that the

requirements for proper service in a removal case are governed by state law, and thus that

S.C. R. Civ. P. 3(a) applied to his action. Abdul-Mumit v. Alexandria Hyundai, LLC, 896

F.3d 278, 290 (4th Cir.) (“[C]ontentions not raised in the argument section of the opening

brief are abandoned.” (internal quotation marks omitted)), cert. denied, 139 S. Ct. 607

(2018). Rule 3(a) provides that “[a] civil action is commenced” by the filing of the

summons and complaint if one of two conditions also are met: “(1) the summons and

complaint are served within the statute of limitations in any manner prescribed by law; or

(2) if not served within the statute of limitations, actual service must be accomplished not

later than [120] days after filing.” Quinn timely filed his summons and complaint on

September 11, 2017, but did not serve Copart until June 15, 2018, 277 days later.

       Title VII requires that an aggrieved person file a civil action within 90 days of

receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1) (2012); see also

29 U.S.C. § 626(e) (providing 90-day period for filing ADEA claims). Quinn asserts that



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the 90-day period should not be treated as a statute of limitations for purposes of Rule 3(a).

We find his arguments unpersuasive.

       A statute of limitations is “[a] law that bars claims after a specified period;

specif[ically], a statute establishing a time limit for suing in a civil case, based on the date

when the claim accrued (as when the injury occurred or was discovered).” Black’s Law

Dictionary 1636 (10th ed. 2009). It is well settled that a Title VII claimant who fails to file

a complaint within the 90-day period generally forfeits his right to pursue his claims. See

Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-51 (1984) (per curiam); Harvey

v. City of New Bern Police Dep’t, 813 F.2d 652, 653-54 (4th Cir. 1987).

       We have explicitly recognized that the 90-day requirement is “in the nature of a

statute-of-limitations defense.” Laber v. Harvey, 438 F.3d 404, 429 n.25 (4th Cir. 2006)

(discussing 90-day period applicable to Title VII claims against Federal Government); see

Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993)

(characterizing 90-day period as “limitations period”); Perdue v. Roy Stone Transfer Corp.,

690 F.2d 1091, 1094 (4th Cir. 1982) (explaining that “the issuance of a ‘right to sue’ notice

initiates the running of the statute of limitations for private actions” under Title VII). This

characterization is in agreement with the opinions of various other circuits. See, e.g.,

Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 142 (1st Cir. 2012); Payan v.

Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007); Ebbert v.

DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003); Taylor v. Books A Million, Inc.,

296 F.3d 376, 379-80 (5th Cir. 2002); Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825

(11th Cir. 2001).

                                               4
       Quinn’s reliance on Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982),

is misplaced, as the language he cites addresses a different time limitation applicable to

Title VII administration exhaustion. See id. at 394, 398. More fundamentally, providing

informal notice to opposing counsel simply is not an adequate substitute for timely and

proper service of the complaint on an opposing party. We also are unpersuaded by Quinn’s

arguments that treating the 90-day period as a statute of limitations would lead to absurd

results. See Stewart v. Iancu, C.A., 912 F.3d 693, 699, 701, 705-06 (4th Cir. 2019)

(discussing requirement of right-to-sue letter and limited exception for claims “reasonably

related” to previously exhausted claims); Scott v. Gino Morena Enters., LLC, 888 F.3d

1101, 1110-11 (9th Cir. 2018) (recognizing that 180-day period under 42 U.S.C. § 2000e-

5(f)(1) does not commence statute of limitations). In short, we find no gross injustice in

enforcing the requirement of timely service under the circumstances presented here.

       For the first time in reply, Quinn asserts that he is entitled to equitable tolling of the

90-day statute of limitations. Because Quinn did not attempt to raise an equitable tolling

argument in the district court or in his opening appellate brief, this issue is not properly

before us. See Abdul-Mumit, 896 F.3d at 290; In re Under Seal, 749 F.3d 276, 285 (4th

Cir. 2014) (“Our settled rule is simple: absent exceptional circumstances, we do not

consider issues raised for the first time on appeal.” (alterations and internal quotation marks

omitted)). Thus, we find no abuse of discretion in the district court’s Rule 12(b)(5)

dismissal.

       Quinn asserts that the district court’s dismissal order violates his constitutional

rights to a jury trial and to equal protection. Quinn did not raise these issues at any point

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in the district court. See Under Seal, 749 F.3d at 285. We will consider newly raised issues

“only in very limited circumstances, such as where refusal to consider the newly-raised

issue would be plain error or would result in a fundamental miscarriage of justice.” Muth

v. United States, 1 F.3d 246, 250 (4th Cir. 1993); see Under Seal, 749 F.3d at 285

(permitting reversal “only if the newly raised argument establishes fundamental error or a

denial of fundamental justice” (internal quotation marks omitted)). However, we find no

such exceptional circumstances here. Notably, Quinn’s constitutional arguments were

readily available to him in the district court, as he could have raised these arguments

prospectively in opposing Copart’s motion to dismiss or in objecting to the magistrate

judge’s recommendations. Thus, we decline to address these issues in the first instance.

       Quinn also argues that the district court should have granted his motion for summary

judgment based on Copart’s failure to respond to his RFAs. Although he argues the merits

of his motion, he fails to challenge the district court’s dispositive conclusion that his motion

was rendered moot by the court’s Rule 12(b)(5) dismissal. See Abdul-Mumit, 896 F.3d at

290. In any event, the district court plainly could not grant summary judgment in favor of

Quinn when his action was subject to dismissal for insufficient service of process because

it was never properly commenced. We therefore decline to consider the parties’ arguments

addressing the merits of the summary judgment motion.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                                  AFFIRMED

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