UNITED STATES DISTRICT COURT

FoR THE DISTRICT oF CGLUMBIA FI L E D
JuN 1 v 2014
RoGER RUDDER, er al. ) °'@'k. u.s_ D~ -
s ) COUF!S far fhql§l':l:fl€§ gl?

Plaintiffs, )
)

v. ) Case No. 09-cv-2174 (RJL)
)
SHANNON WILLIAMS, et al., )
)
Defendant. )

MEMORANDUM OPINION

(Jun@é»_, 2014) [r)i<r. #41]
Plaintil`l`s Roger Rudder, Rosena Rudder, Noverlene Goss, E.R. (a minor), and

D.G. (a minor at the time the initial Complaint was filed) bring this action against, Master
Patrol Officer Shannon Williams ("MPO Williams"), Officer William Chatman, and the
District of Columbia, alleging claims of assault and battery, intentional infliction of
emotional distress, and unreasonable seizure C0rrected Am. Compl. [Dkt. # 36].
Defendant MPO Williams moves for partial dismissal under F ederal Rule of Civil
Procedure l2(b)(6) for failure to state a claim upon which relief can be granted.l Mot. for
Partial Dismissal of Master Patrol Officer Shannon Williams 1 [Dkt. #41]. Specifically,
MPO Williams moves to dismiss D.G.’s intentional tort claims (Counts l and ll) and the

adult plaintiffs’ Section 1983 unreasonable seizure claims (Count III) against her as

l MPO Williams also names Federal Rule of Civil Procedure l2(b)(5) (improper service) and/or Rule 56
(summaryjudgment) as potentially bases for disposing ofthe claims at issue. I grant her request for
partial dismissal, however, pursuant to Rule l2(b)(6). Mot. for Partial Dismissal of MPO Williams l.

l

barred by the applicable statutes of limitations. Ia’. at 2. For the reasons described herein,
MPO Williams’s motion for partial dismissal is GRANTED.
BACKGROUND
This case arises out of an alleged incident at Washington, D.C.’s Annual
Caribbean Carnival Parade in June 2008. Corrected Am. Compl. 1]6. Plaintiffs allege
that l\/Iaster Patrol ()fficer Shannon Williams and Officer W. Chatman used unnecessary
force, including baton strikes, while they were returning to the sidewalk after greeting
relatives participating in the parade. Ia'. ‘{l1|7-l2.
The initial Complaint in this matter was filed on November 16, 2009. Compl.

[Dkt. #l]. lt named MPO Williams, Officer Chatman, and the District of Columbia as
defendants and alleged multiple claims arising under the United States Constitution and
District of Columbia laws. Id. MPO Williams filed a partial motion to dismiss on
January ll, 2010. Def. Shannon Williams’ Mot. for Partial Dismissal [Dkt. #3]. Officer
Chapman and the District of Columbia also filed a motion to dismiss on January ll,

201 0, but did so in a separate document because they had to request an extension of time.
Consent Mot. for Extcnsion of Time [Dkt. #4]; Defs.’ Mot. for Partial Dismissal [Dkt.
#4-1]. On March 16, 2010, attorneys for defendants filed a praecipe indicating that MPO
Williams had not been served with the Complaint, so the partial motion to dismiss filed
on January ll, 2010 was filed on behalf of Officer Chatman and the District of Columbia
only, not on behalf of MPO Williams. Praecipe [Dkt. #8]. This court dismissed the

complaint with prejudice and did not address the issue of Williams’s lack of service,

which had not been raised in a separate motion to dismiss. Mem. Order [Dkt. #10].
Plaintiffs appealed.

On January 17, 20l2, our Court of Appeals reversed in part and remanded with
respect to all plaintiffs’ claims against the officers under the Fourth Amendment, as well
as the minors’ common law claims, the latter of which it held should have been dismissed
without prejudice Rua’der v. Williams, 666 F.3d 790, 796 (D.C. Cir. 2012). The Circuit
Court did not address MPO Williams’s argument, however, that she had not been served,
because she had not filed a motion to dismiss on those grounds in this court. Ia’. at 793.

On August 21, 2013, plaintiffs filed a Corrected Amended Complaint against
Officers Williams and Chatman and the District of Columbia which is now before this
court. Corrected Am. Compl. Three counts remain: (I) D.G. and E.R.’s claims of assault
and battery, z'a’. 1{113-16; (Il) D.G. and E.R.’s claims intentional infliction of emotional
distress, z`d. 1Hll7-l9; and (III) violation of all plaintiffs’ Fourth Amendment rights,
brought pursuant to 42 U.S.C. § 1983, z'a’. M20-23. The Corrected Amended Complaint
was served on MPO Williams on or about October ll, 2013. Decl. of Master Patrol
Officer Shannon Williams [Dkt. #41-1].

MPG Williains now moves to dismiss certain claims of the Corrected Amended
Complaint on the grounds that plaintiffs failed to serve her within the applicable statutes
of limitations. Mot. for Partial Dismissal of MPO Williams 2. Specifically, MPO
Williams moves to dismiss D.G.’s intentional tort claims (Counts I and ll) and the adult

plaintiffs’ Section 1983 Fourth Amendment claims (Count III) against her. Ia’.

LEGAL STANDARD
Defendants may raise a statute of limitations defense in a motion to dismiss under
Federal Rule of Civil Procedure l2(b)(6) "when the facts that give rise to the defense are
clear from the face of the complaint.” Smz`l‘h-Haynz`e v. District ofColumbz`a, l55 F.3d
575, 578 (D.C. Cir. l998). Because statue of limitations defenses often are based on
contested facts, the court should be cautious in granting a motion to dismiss on such
grounds; "dismissal is appropriate only if the complaint on its face is conclusively time-
barred." Firestone v. Firestone, 76 F.3d l205, 1209 (D.C. Cir. l996). For the purposes
of a motion to dismiss under Rule l2(b)(6), the court takes all facts alleged in the
complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
ANALYSIS
MPO Williams argues that she was not served in this action until she received the

Corrected Amended Complaint in October 2013, over five years after the events
underlying the action took place. Mot. for Partial Disinissal of MPO Williams 2. MPO
Williams contends that because the three-year statute of limitations for adult plaintiffs’

§ 1983 claims began running in June 2008, those claims are barred. Ia’.; Stez`nberg v.
District ofColumbz`a, 901 F. Supp. 2d 63, 69 (D.D.C. 2012). MPO Williams also
contends that D.G. reached the age of eighteen in December 2010, at which point the
statute of limitations began running as to her claims as well. Mot. for Partial Dismissal of

MPO Williams 2; D.C. Code § l2-302(a)). MPO Williams seeks to dismiss D.G.’s

intentional tort claims as barred by a one year statute of limitations.z Mot. for Partial
Dismissal of MPO Williams 2; D.C. Code § 12-301(4) (assault and battery); Zhz` Chen v.
Monk, 701 F. Supp. 2d 32, 37 (D.D.C. 20l0) (intentional infliction of emotional distress
intertwined with battery claim).

MP() Williams essentially takes the position that the initial Complaint is irrelevant
as to her and that she was made a party to the case for the first time upon service of the
Corrected Amended Complaint. Mot. for Partial Dismissal of MPO Williams. Plaintiffs
do not contest MPO Williams’s declaration that she was never served the initial
Complaint and was served the Corrected Amended Complaint on or around October ll,
2013. Pls.’ Mem. in Opp’n to Mot. for Partial Dismissal [Dkt. #42]. Nor do plaintiffs
contest the applicable statutes of limitations. Ia’. However, plaintiffs contend that filing
the initial Complaint, which named MPO Williams in the caption, commenced the
litigation against her and tolled the applicable statutes of limitations. Ia’. l disagree.

Federal Rule of Civil Procedure 3 states: "A civil action is commenced by filing a
complaint with the court." Fed. R. Civ. P. 3. Plaintiffs rely heavily on statements made
by the United States Supreme Court and our Court of Appeals to support their position
that filing a complaint alone is sufficient for statute of limitations purposes. Pls’. Mem.
in Opp’n to Mot. for Partial Dismissal; see, e.g., Henderson v. United States, 517 U.S.
654, 657 n.2 (1996) ("In a suit on a right created by federal law, filing a complaint

suffices to satisfy the statute of limitations."); Pls.’ Mem. in Opp’n to Mot. for Partial

2 MPO Williams does not move to dismiss E.R.’s claims as time-barred, as E.R. is still a minor, or D.G.’s
§ 1983 claim as time barred, as the Corrected Amended Complaint was filed within three years after D.G.
tumed eighteen. Mot. for Partial Dismissal ofMPO Williams 2.

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Dismissal. While it is true that federal and District of Columbia law do not require
service to be effected within the statute of limitations period, see Iran Az'r v. Kugelmcm,
996 F.2d 1253, 1257 (D.C. Cir. 1993) (holding that the charge was timely when filed
within the statute of limitations period, even though served after the period); Varela v.
Hz`-Lo Powered Stz'rrups, 424 A.2d 61, 70 (D.C. 1980) (en banc) ("Super.Ct.Civ.R. 3
requires only the filing of a complaint to commence an action and thereby toll the statute
of limitations."), it is Rule 4 of the Federal Rules of Civil Procedure, however, which
governs service. Fed. R. Civ. P. 4; see, e.g., Henderson, 517 U.S. at 672 (holding that
Rule 4 displaced service provision in the Admiralty Act).

Rule 4(in) provides, in relevant part: "If a defendant is not served within 120 days
after the complaint is filed, the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against that defendant or order that
service be made within a specified time."3 Fed. R. Civ. P. 4. The court cannot assert
jurisdiction over a defendant "unless the procedural requirements of effective service of
process are satisfied." Gorman v. Ameriz‘rade Holdz`ng Corp., 293 F.3d 506, 514 (D.C.
Cir. 2002).

Although the initial Complaint was never officially dismissed as to MPO
Williams, the other defendants’ attorneys made clear that she had not been served, did not
waive service, and was not participating in the response to the initial Complaint.

Praecipe; Reply to Pls.’ Resp. to Mot. for Partial Dismissal 1 n.l [Dkt. #9]. lndeed,

3 The rule directs a court to extend service time for an appropriate period if the plaintiff shows good cause
for the failure to serve. Fed. R. Civ. P. 4. Plaintiffs have not made any good cause arguments to this
court, in response to this motion or in any previous filing.

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plaintiffs offer no evidence of an effort to serve the initial Complaint even after leaming
of this deficiency, nor do they offer a reason for this f`ailure.

lf plaintiffs had tried to proceed on the initial Complaint by belatedly serving
MPO Williams, she could have brought a motion to dismiss pursuant to Rule l2(b)(5) for
improper service and the court would have had grounds to grant it, absent a showing of
good cause for failure to timely serve. However, a Rule l2(b)(5) motion technically is
not appropriate as to the Corrected Amended Complaint, because it was served within
120 days of its filing. Plaintiffs seek to avoid a Rule l2(b)(5) motion by serving an
amended complaint within the appropriate Rule 4(m) time frame, but at the same time
argue the unserved complaint tolled the statute of limitations so as to prevent dismissal on
those grounds. They cannot have it both ways.

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
the court) for service. See, e.g., Henderson, 517 U.S. at 672; West v. Conraz`l, 481 U.S.
35, 36 (1987); Kugelman, 996 l*`.2d at 1257;1~101)$0)1 v. Wilson, 737 F.2d l, 44-45 (D.C.
Cir. 1984) (proper service not effected for a number of years after the complaint was
filed, but district court allowed the delayed service); Varela, 424 A.2d at 62. They do
not, however, address MPO Williams’s situation, where the complaint plaintiffs claim
tolled the statute of limitations was never served on the defendant, and an amended

complaint was later filed and served.

Plaintiffs desired outcome would require that the statute of limitations be tolled
indefinitely when a complaint is filed, even if service is not made. Thus, plaintiffs could
file an initial complaint, never even attempt to serve it or provide the prospective
defendants any notice, and at any later time file an amended complaint that is served
within 120 days. To say the least, such a construction would defeat the purpose of
statutes of limitations. "Statutes oflimitations . . . represent a pervasive legislative
judgment that it is unjust to fail to put the adversary on notice to defend within a
specified period of time and that the right to be free of stale claims in time comes to
prevail over the right to prosecute them." United States v. Kubrz'ck, 444 U.S. 1 1l, 117
(1979) (internal quotation marks omitted). Even if MPO Williams had notice of this
particular lawsuit when it was filed, which she does not admit, it 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.

As Judge Sprizzo of the Southem District of New York explained, "if a plaintiff
fails to effect service during the 120 days allotted by Rule 4(m), then the statute of
liinitations for the underlying claim again becomes applicable, and may serve to bar the
claim if the statute runs before the plaintiff files another complaint." Gcasi`o v. Fashion
Inst. ofTech. 86 F. Supp. 2d 371, 376 (S.D.N.Y. 2000). That is precisely what happened
here. Therefore, the statute of limitations was not tolled by the filing of the initial

Complaint,‘l and instead ran from the incident date (June 2008, Corrected Am. Compl.

4 Plaintiffs do not argue that the Corrected Amended Complaint relates back to the initial complaint. See
Pls.’ Mem. in Opp’n to Mot. for Partial Dismissal. Even if they had, the amended complaint does not

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116) for the adult plaintiffs and from D.G.’s eighteenth birthday (December 2010, Mot. for
Partial Dismissal 2; Corrected Am. Compl. 119 (D.G. was 15 in June 2008)) for D.G.’s
claims. Plaintiffs served the Corrected Amended Complaint on MPO Williams in
October 2013, over three years after the incident date and over one year after D.G.
reached majority. These facts are not disputed. Therefore, D.G.’s intentional tort claims
(Counts 1 and ll) and the adult plaintiffs’ Section 1983 Fourth Amendment claims (Count
III) are time-barred
CONCLUSION

Thus, for the foregoing reasons, defendant MPO Shannon Williams’s Motion for
Partial Dismissal [Dkt. # 41] is GRANTED. Claims 1 and ll against MPO Williams are
DISMlSSED as to plaintiff D.G., and Claim llI against MPO Williams is DlSMlSSED as

to plaintiffs Roger Rudder, Rosena Rudder, and Noverlene Goss. An appropriate order

/’”`W °

shall accompany this Memorandum Opinion. p/ / f
/o aris/t ~ t 1a ,M/

RICHARD J_ Li§oN>
United States District Judge

relate back because plaintiffs do not meet all the requirements of Rule 15(0)(1)(€), as there was no
mistake concerning her identity. See Fed. R. Civ. P. l5(c)(1)(C)(ii).

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