                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-1644


JACQUELINE RICE,

                Plaintiff - Appellant,

           v.

ALPHA SECURITY, INCORPORATED; BUDGET MOTELS, INCORPORATED,
d/b/a   Comfort   Inn   Alexandria;   WATERLOO HOSPITALITY,
INCORPORATED, d/b/a Comfort Inn Alexandria,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-01025-GBL-TCB)


Argued:   January 29, 2014            Decided:   February 25, 2014


Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Mary Ann Kelly, LAW OFFICES OF MARY ANN KELLY, Fairfax,
Virginia, for Appellant. Douglas Conrad Meister, MEYERS, RODBELL
& ROSENBAUM, PA, Riverdale, Maryland; Stephen William Robinson,
MCGUIREWOODS, LLP, Tysons Corner, Virginia, for Appellees. ON
BRIEF: Dennis Chong, Michael J. Hoare, MICHAEL J. HOARE, P.C.,
Washington,   D.C.,  for   Appellant.  Nicholas   D.  SanFilippo,
MCGUIREWOODS, LLP, Tysons Corner, Virginia, for Appellees Budget
Motels, Incorporated and Waterloo Hospitality, Incorporated.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Appellant    Jacqueline      Rice       appeals    the   dismissal    of   her

sexual    harassment     lawsuit      against       Appellees      Alpha    Security,

Budget Motels, and Waterloo Hospitality. Rice filed this suit in

Virginia state court. Under Virginia law, service of process is

typically to be effected within one year of the commencement of

the suit, but Rice perfected service after one year and 16 days.

Appellees removed the case to federal court and thereafter moved

to dismiss for insufficient service.

        After first denying Appellees’ motions, the district court

then    reversed     itself   and    dismissed       the    case   with    prejudice,

holding that service of process was fatally untimely in state

court and that it could not be cured after the case’s removal to

federal court. On appeal, Rice contends that the court failed to

consider her right under Virginia law to take a nonsuit, which

would have effectively dismissed the case without prejudice and

permitted her to re-file it within six months. We agree with

Rice,     and   we   vacate    the    judgment        and    remand   for    further

proceedings.

                                        I.

       Rice’s claims arose during the course of her employment as

a night-shift security officer on assignment at a Comfort Inn

hotel in Alexandria, Virginia. Rice alleges that throughout her

employment, her manager sexually harassed her, subjecting her to

                                            3
a     hostile       work     environment,       and     that     Appellees          wrongfully

terminated          her     employment        after     she     complained       about       the

misconduct.          She     filed     a     charge     of     discrimination            against

Appellees          with     the    Equal      Employment       Opportunity          Commission

(EEOC) and the EEOC’s subsequent investigation found reasonable

cause to believe that discrimination occurred. On August 15,

2011, Rice initiated the instant lawsuit in the Circuit Court

for Fairfax County, Virginia.

       After filing her lawsuit, Rice did not immediately serve

the complaint and summons on Appellees; in fact, she failed to

do    so    for    more     than     eleven    months.       Nearing    the     twelve-month

mark, the court scheduled a hearing to determine whether service

had been perfected. Before the hearing was held, however, Rice

exercised her right to a nonsuit under Va. Code Ann. § 8.01-380.

The court granted the nonsuit on August 14, 2012, one day before

the twelve-month mark, thus terminating her case.

       A little more than two weeks later, on August 30, 2012,

Rice       filed    a     motion     asking    the     court    to     vacate       its     order

granting       the        nonsuit,     and    the     court     granted       her    request.

According to that order, the court’s previous “Order of August

14,    2012,       granting       [Rice’s]    Motion     for    a    Nonsuit,       is     hereby

VACATED;          and     [Rice’s]     suit     with     all        claims    against        all

Defendants         is     pending     in     this     Court.”    J.A.     23.       Rice    then

immediately          attempted        to     locate     the     registered       agents       of

                                                4
Appellees to effect service, but she was unable to do so until

the next day, August 31, 2012 – one year and 16 days after the

initiation of her lawsuit.

      Appellees       removed    the    case          to   the       Eastern   District     of

Virginia     under      federal        question            jurisdiction,         and      they

subsequently filed motions to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(2) and (5). The district court held two

oral arguments on Appellees’ motions to dismiss. Originally, the

court entered a short order denying the motions, but following

reargument, the court entered a memorandum and order granting

the   motions    to    dismiss   with    prejudice.              A    final    judgment    was

entered on April 16, 2013, and Rice timely appealed.

                                         II.

      The   issues     on   appeal     are       whether     Rice       failed    to   effect

timely service under Virginia law and, if so, whether she could

cure the defect upon removal of the case to federal court. We

review the instant dispute of law de novo, as there are no

contested issues of fact. In re Beach First Nat’l Bancshares,

Inc., 702 F.3d 772, 776 (4th Cir. 2012).

                                          A.

      Under Virginia law, service of process is timely if it is

effected on a defendant “within twelve months of commencement of

the   action,”    or    alternatively            if    the   court       finds   that     “the

plaintiff exercised due diligence to have timely service made on

                                             5
the defendant” but did not succeed. Va. Code Ann. § 8.01-275.1.

After twelve months, upon a finding that neither has occurred,

the defendant may obtain a judgment against the plaintiff with

prejudice. § 8.01-277(B).

      On appeal, Rice has appeared to concede that she did not

demonstrate due diligence in her service attempts. App. Br. 11-

12. Our review of the record suggests that this is a prudent

concession, as Rice did not attempt service until August 30,

2012, and did so only once. Thus, we need only consider whether

Rice’s service on August 31, 2012 satisfies the twelve-month

requirement.

      Calculation    of    the   instant       case’s     period   for     service

implicates a historical procedural mechanism under Virginia law

known as a “voluntary nonsuit” or “nonsuit.” A nonsuit allows

litigants   the     opportunity        to   end    a     pending       litigation,

effectively without prejudice to either party. Va. Code Ann.

§ 8.01-380; see also Alderman v. Chrysler Corp., 480 F. Supp.

600, 603 (E.D. Va. 1979) (applying Virginia law). A party may

take one nonsuit as a matter of right, and additional nonsuits

are   possible   with     permission    from    the     court.   Va.    Code   Ann.

§ 8.01-380(B).

      A nonsuit may be taken any time before (1) “a motion to

strike the evidence has been sustained;” (2) “the jury retires

from the bar;” or (3) “the action has been submitted to the

                                        6
court for decision.” § 8.01-380(A). Of particular relevance to

this appeal, a plaintiff may obtain a nonsuit even if she has

not perfected service or her time for perfecting service has

expired, so long as a dispositive motion has not been filed.

§ 8.01-277(B); see also Berry v. F&S Financial Marketing, Inc.,

626 S.E.2d 821, 824 (Va. 2006).

     In   the   instant   case,       Rice    sought,      then   had   vacated,    a

nonsuit   order.   She    now    contends       that    because    her    case    was

nonsuited for seventeen days (that is, between the grant of the

nonsuit and its subsequent vacatur), those days ought not count

in the calculation of the one year period. Thus, although in an

ordinary situation Rice was to have served process by August 15,

she takes the position that her service on August 31 was timely

because   seventeen    days     should       have   been   subtracted     from    her

period for service.

     We reject this argument. The effect of “vacating” an order

is to “nullify or cancel; make void; invalidate.” Ferguson v.

Commonwealth, 658 S.E.2d 692, 695 (Va. Ct. App. 2008) (citing

Black’s Law Dictionary 1584 (8th ed. 2004)); see also NLRB v.

Goodless Bros. Elec. Co., 285 F.3d 102, 110 (1st Cir. 2002)

(defining   “vacate”      as    “to     render      inoperative;        deprive    of

validity; void; annul” and that an order to vacate “wipes the

slate clean”). Once Rice successfully moved to have her nonsuit

vacated, it ceased to exist, and effectively, it never did. It

                                         7
therefore could not have any further effect on the litigation,

because it is as if it never occurred. Id.

      Rice has not cited to any statute or case law holding that

a   vacated    nonsuit      order     can    extend      a   litigant’s          period    for

service.      She    instead       contends       that   Frey    v.        Jefferson      Home

Builders,     Inc.,    467    S.E.2d    788       (Va.   1996),       is    persuasive      by

analogy.      In    Frey,    the    Virginia       Supreme      Court       found   service

timely when the last day of the service period fell on a legal

holiday and the plaintiff completed service on the next business

day. Id. at 790. But the Court relied on a provision of the

Virginia    Code     that    specifically          allowed    for     an     extension      of

service when the last day for service was a holiday. Here, the

provision governing nonsuits is silent as to a suspension of the

service deadline, and Frey is thus inapposite.

      We    conclude        that    Rice’s        nonsuit,      and        its   subsequent

vacatur, does not change the service of process requirement set

forth under §§ 8.01-275.1 and 8.01-335. As a matter of law, the

twelve-month period for service ended on August 15, 2012, but

Rice did not serve process until August 31, 2012. Her service of

process was therefore untimely under Virginia law.

                                            B.

      Having determined that Rice did not timely serve process in

state court, we now consider whether Appellees’ removal of the

case to federal court provided Rice with an opportunity to cure

                                              8
her untimely service of process. The district court held that

Rice’s claims do not survive removal, but we disagree.

     When a case is removed to federal court, a plaintiff may be

afforded     additional      time          to    complete         service      or    to    obtain

issuance     of    new    process          if,    prior      to     the    case’s       removal,

“service of process has not been perfected prior to removal,” or

“process     served      proves       to    be       defective.”      28       U.S.C.     § 1448.

Federal Rule of Civil Procedure 4(m) dictates that the plaintiff

serve process within 120 days or be subject to a dismissal of

her federal action without prejudice.

     Courts have held that this additional 120-day period does

not apply to cases that “would have been dismissed as time-

barred had it remained in state court.” Marshall v. Warwick, 155

F.3d 1027, 1033 (8th Cir. 1998); see also Wallace v. Microsoft

Corp.,     596    F.3d   703,     707      n.2       (10th   Cir.     2010);        Witherow   v.

Firestone Tire & Rubber Co., 530 F.2d 160, 168 (3d Cir. 1976)

(superseded by statute on unrelated grounds). These courts rely

on the reasoning that state law governs the case’s procedure up

to   its    removal,      and     a     suit         that    failed       to   satisfy      state

procedural       obligations      cannot         be    revived      by     the      language   of

§ 1448. Put another way, the removal of a case to federal court

cannot “breathe jurisprudential life in federal court to a case

legally dead in state court.” Witherow, 530 F.2d at 168.



                                                 9
     On the instant facts, however, it is not clear that Rice’s

case was in fact “legally dead” under Virginal law; indeed, the

contrary is true. Our analysis on this point leads us -- once

again -- to the plaintiff’s right in Virginia courts to take a

nonsuit.

     By all accounts, a nonsuit is an expansive and powerful

weapon bestowed upon the plaintiffs’ bar by the Virginia General

Assembly. Under this statutory right, a plaintiff may elect, for

a myriad of reasons and at practically any given point in time,

to terminate her case or to otherwise postpone it with minimal

consequence. As the Virginia Supreme Court has observed,

     [t]he right to take a nonsuit on the eve of trial,
     notwithstanding a defendant’s loss of time and expense
     incurred in preparation, and notwithstanding any
     disruption which may result to the court’s docket, is
     a powerful tactical weapon in the hands of a
     plaintiff. The General Assembly has provided, in Code
     § 8.01–380, several conditions to give balance to the
     exercise of that right. Nonsuit remains, however,
     distinctly a weapon in the arsenal of a plaintiff.

Trout v. Commonwealth Transp. Comm’r, 400 S.E.2d 172, 174 (Va.

1991); see also Lawrence v. Hanson, 197 F. Supp. 2d 533, 539

(W.D. Va. 2002) (describing plaintiff’s right to nonsuit as “one

of [his] primary privileges under state law”).

     Virginia courts have indicated that the right to a nonsuit

is deserving of doctrinal protection. In Collins v. Shepherd,

for example, the Virginia Supreme Court invalidated a local rule

that had permitted the clerk to procedurally dismiss cases which

                               10
had not been served within one year because the rule deprived

the plaintiff of the opportunity to pursue a nonsuit. 649 S.E.2d

672, 676 (Va. 2007). The Court reasoned that “[i]n the absence

of this local rule, Collins would have retained the right to

take a nonsuit and refile his civil action beyond the one-year

limitation period established by the local rule.” Id. Because

the rule “abridged [the plaintiff’s] substantive right to take a

nonsuit and refile his case,” it was invalid. Id. at 675.

      We are persuaded that we should apply Collins’s teaching to

the case at bar. When Rice’s case was removed to federal court,

Rice still had the option to seek a nonsuit, and if she had

successfully done so, her case would not be subject to dismissal

as   time-barred.     The   parameters   of    § 8.01-380     were   certainly

satisfied, in that the defendants had not submitted the action

to the court for decision. It is also likely that, since her

first nonsuit was vacated, Rice would have been entitled to a

nonsuit as a matter of right; in any event, a Virginia court may

allow    additional    nonsuits   under       certain     circumstances.    And

importantly, Rice maintained the right to take a nonsuit even

though   her   twelve-month    period    for    service    had   expired.   See

Berry, 626 S.E.2d at 824. Because Rice still had options left in

state court to pursue her cause of action, the removal of the

case to federal court should not change that outcome.



                                    11
     The district court rejected Rice’s argument on the ground

that she had “already exercised her right to one nonsuit” such

that “dismissal here on the basis of defective service under

state law does not hastily deprive Plaintiff of any rights she

could have obtained in state court.” J.A. 142. But, as discussed

earlier,      Rice’s      nonsuit    was    vacated       and     deprived        of    any

validity; it was void. Just as the vacated nonsuit did not serve

to suspend the service requirement, it also cannot be treated as

an exhaustion of her right to take at least one nonsuit.

     Finally,        we    reject    Appellees’        argument     that     we    should

affirm   on    the     alternative     ground      that    Rice     failed    to       serve

process within 120 days of the case’s removal to federal court.

The district court had originally denied Appellees’ motions to

dismiss,      thereby      authorizing     Rice    to     proceed    with     her      case

without perfecting service. When, five months later, the court

reversed course and granted Appellees’ motions, Rice’s timely

appeal was sufficient to preserve her right to perfect service

of process upon our remand.

                                          III.

     We hold that although her original service of process was

defective,     Rice       is   entitled    to    the    opportunity     to    cure      the

defect in federal court post-removal. Accordingly, we vacate the

judgment      of   the    district    court      and    remand    the   case      to    the

district court with instructions to allow Rice 120 days to serve

                                           12
process in accordance with the dictates of 28 U.S.C. § 1448 and

Fed. R. Civ. P. 4(m).

                                           VACATED AND REMANDED




                              13
