                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0515n.06
                             Filed: July 24, 2006

                                           No. 04-6241

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PAUL S. MARKOWITZ,                                )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
JOHN HARPER, City of Memphis Police               )   WESTERN DISTRICT OF TENNESSEE
Officer; B. GIANNINI, City of Memphis             )
Police Officer,                                   )
                                                  )
       Defendants-Appellees.                      )




       Before: MARTIN and SUTTON, Circuit Judge; JORDAN, District Judge.*


       SUTTON, Circuit Judge. Paul Markowitz alleges that two Memphis police officers violated

various federal and state laws when they arrested him on January 30, 2002. One year after the

incident, he filed a lawsuit against the officers in federal court but voluntarily dismissed the case

four months later, on May 30, 2003. A year after that, on June 1, 2004, he filed another suit

(virtually identical to the first) against the officers. The parties agree that Tennessee’s one-year

statute of limitations applies to Markowitz’s claims and that he filed his first suit within the

limitations period.



       *
        The Honorable R. Leon Jordan, District Judge for the Eastern District of Tennessee, sitting
by designation.
No. 04-6241
Markowitz v. Harper

        They disagree, however, about whether Markowitz’s actions in dismissing his first lawsuit

permit him to benefit from Tennessee’s savings statute by giving him one year from the date he

voluntarily dismissed the first suit to file the second. To take advantage of the savings statute, the

district court held that Markowitz had to serve the officers with notice of his first suit and its

dismissal “by registered return receipt or certified return receipt mail.” D. Ct. Op. at 8. Because he

did not, the district court held that Markowitz’s claim was time barred. We reverse because

intervening authority, released after the district court’s decision, shows that Tennessee law does not

require service by registered or certified mail in these circumstances.


                                                    I.


        While driving home on the evening of January 30, 2002, Markowitz had a run-in with

Memphis police officers John Harper and B. Giannini. On the basis of that encounter, Markowitz

filed a lawsuit against the officers and other defendants in federal district court in Tennessee on

January 30, 2003, under 42 U.S.C. §§ 1983 and 1985, alleging that the officers had violated his civil

rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the Federal Constitution as

well as under state law.


        The district court issued summonses for Harper and Giannini on January 30, 2003, but

Markowitz never served them on the officers. Markowitz claims that “a Shelby County, Tennessee

Assistant Attorney General . . . had [a] copy of the complaint . . . and . . . indicated in [his] presence

that” the officers “were concerned about [the] pending lawsuit and that a settlement of



                                                  -2-
No. 04-6241
Markowitz v. Harper

[Markowitz’s] criminal case would more easily [be] accomplished without the pendency of [the]

Federal lawsuit.” Curbo Aff. at 4 (D. Ct. Docket No. 7). On May 30, 2003, the district court

granted Markowitz’s request to dismiss the suit voluntarily and without prejudice.


        On May 31, 2003, Charles Curbo, Markowitz’s attorney at the time, “personally mailed a

copy” of the notice of voluntary dismissal “as well as . . . a copy of the original complaint” to both

officers care of “the City of Memphis Police Department Court Coordinator Unit . . . by postage

prepaid first class United States mail.” Id. at 3–4 (D. Ct. Doc. No. 8); see also id. at 5 (same);

Mem. Supp. Opp’n. Summ. J. at 6 (D. Ct. Doc. No. 8) (“[A] copy of the notice of dismissal, the

complaint, and a copy of the proposed order of dismissal was mailed to these Defendants, properly

addressed and stamped.”). These materials “were not returned by the postal service.” Id. at 4. The

officers, however, claim that they never received a copy of the complaint or the notice of the

voluntary dismissal.


        On June 1, 2004, Markowitz sued the officers again, alleging the same claims as before. The

officers argued, and the district court found, that the statute of limitations barred the second lawsuit,

because Markowitz was not entitled to the benefit of Tennessee’s savings statute. Although counsel

represented Markowitz in the district court, Markowitz is representing himself on appeal, where we

give fresh review to the district court’s grant of summary judgment to the officers. See Flaskamp

v. Dearborn Pub. Schs, 385 F.3d 935, 940 (6th Cir. 2004).




                                                  -3-
No. 04-6241
Markowitz v. Harper

                                                  II.


       “In addressing the timeliness of a federal constitutional damages action, ‘the settled practice

has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or

policy to do so.’” Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) (quoting Wilson v.

Garcia, 471 U.S. 261, 266–67 (1985)). Here, the parties agree, Tennessee’s one-year limitations

period for personal-injury actions governs Markowitz’s § 1983 and § 1985 claims. See Tenn. Code

Ann. § 28-3-104(a); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986). And here, the parties

also agree, Tennessee law governs “[n]ot only the length of the limitations period, but also ‘closely

related questions of tolling and application.’” Harris, 422 F.3d at 331 (quoting Garcia, 471 U.S.

at 269).


       Among the Tennessee provisions bearing on the statute-of-limitations question is Rule 3 of

the Tennessee Rules of Civil Procedure, which provides that “[a]ll civil actions are commenced by

filing a complaint with the clerk of the court” and that “[a]n action is commenced within the

meaning of any statute of limitations upon such filing of a complaint, whether process be issued or

not issued and whether process be returned served or unserved.” Tenn. R. Civ. P. 3 (2004). Under

this provision, Markowitz “commenced” his action by filing his first complaint on January 30, 2003.

Rule 3 goes on to say that “[i]f process . . . is not served within 30 days from issuance, regardless

of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a

statute of limitations unless the plaintiff continues the action by obtaining issuance of new process

within one year from issuance of the previous process.” Id. Markowitz does not claim that he

                                                -4-
No. 04-6241
Markowitz v. Harper

“continue[d] the action by obtaining issuance of new process,” but he does claim that Tennessee’s

saving statute nonetheless redresses the problem.


        The savings statute provides that “[i]f the action is commenced within the time limited by

a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any

ground not concluding the plaintiff’s right of action . . . the plaintiff . . . may, from time to time,

commence a new action within one (1) year after the reversal or arrest.” Tenn. Code Ann.

§ 28-1-105(a). So far, it would seem, so good: Under Rule 3, Markowitz “commenced” his “action”

“within” the applicable one-year “statute of limitation,” and when he voluntarily dismissed his

action on May 30, 2003, the court “rendered” “judgment . . . against” Markowitz “upon” a “ground

not concluding [his] right of action” by dismissing the suit without prejudice. The catch, however,

is whether Markowitz adhered to the procedures for voluntarily dismissing or, as some say,

nonsuiting his case. According to the Tennessee Supreme Court, “a plaintiff may request a

voluntary dismissal within the one-year time period under Rule 3, without having served process,

and still rely on the original date of commencement to satisfy a statute of limitations if the plaintiff”

complies with Rule 41.01, which governs the procedure for voluntarily dismissing lawsuits. Frye

v. Blue Ridge Neuroscience Ctr., 70 S.W.3d 710, 711 (Tenn. 2002).


        Rule 41.01 provides that “the plaintiff shall have the right to take a voluntary nonsuit to

dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial

of a cause and serving a copy of the notice upon all parties, and if a party has not already been

served with a summons and complaint, the plaintiff shall also serve a copy of the complaint on that

                                                  -5-
No. 04-6241
Markowitz v. Harper

party.” Tenn. R. Civ. P. 41.01. Accordingly, to save his lawsuit, Markowitz must have “serve[d]

a copy of the Notice of Voluntary Dismissal and the complaint on the [officers] as required by Rule

41.01.” Frye, 70 S.W.2d. at 711.


       Markowitz and the officers do not contest anything we have said so far. What they dispute

is the meaning of the Tennessee Supreme Court’s statement that a plaintiff must “serve[] a copy of

the Notice of Voluntary Dismissal and the complaint on the defendant as required by Rule 41.01.”

Id. (emphasis added). Does it mean, as the officers contend, “that since no process had previously

been served upon them, to comply with Rule 41.01 service by mail should have been according to

Rule 4.04(10) of the Tennessee Rules of Civil Procedure”? Officers Br. at 10. If so, Markowitz is

out of luck, because Rule 4 (entitled “Process”) says that when serving summonses and complaints

on defendants “within the State,” “[s]ervice by mail . . . upon a defendant may be made by . . . the

plaintiff’s attorney” but that the attorney “shall send, postage prepaid, a certified copy of the

summons and a copy of the complaint by registered return receipt or certified return receipt mail

to the defendant[s].” Tenn. R. Civ. P. 4.04(10) (emphasis added). Yet Markowitz’s attorney swore

that he mailed the materials “by postage prepaid first class United States mail,” not registered or

certified return receipt mail, Curbo Aff. at 4 (D. Ct. Docket No. 8).


       Or does it mean, as Markowitz contends, that such service merely has to comply with the

requirements of Rule 5 of Tennessee’s Rules of Civil Procedure? If so, Markowitz is entitled to the

benefit of the savings statute, because Rule 5 (entitled “Service and Filing of Pleadings and Other

Papers”) says that “[s]ervice upon the attorney or upon a party shall be made by . . . mailing it to

                                                -6-
No. 04-6241
Markowitz v. Harper

such person’s last known address,” and that “[s]ervice by mail is complete upon mailing.” Tenn.

R. Civ. P. 5.02.


       After the district court issued its decision in this case, the Tennessee Court of Appeals issued

an opinion that provides helpful guidance in resolving this intricate question of state law. The

plaintiff in Boone v. Morris, No. M2002-03065-COA-R3-CV, 2004 Tenn. App. LEXIS 644 (Tenn.

Ct. App. Oct. 6, 2004), like Markowitz, filed his first suit within the one-year limitations period but

did not serve process on the defendants. He voluntarily dismissed the case, then filed a second,

similar lawsuit more than one year after his cause of action arose. As in this case, the plaintiff

“provided the affidavit of his prior attorney to the effect that he had sent the original defendants a

copy of the notice of voluntary dismissal, the order, and the original complaint through the mail.”

Id. at *6. At issue in that case thus was the same argument presented here: “The defendants argued

that Plaintiff’s service pursuant to Tenn. R. Civ. P. 5.02 did not comply with Rule 41.01 because that

rule required service under Tenn. R. Civ. P. 4.” Id. at *7–8. In resolving this question, the court

interpreted Frye and Rule 41.01 to mean that “‘service’ under Tenn. R. 41.01 means service under

Tenn. R. Civ. P. 5, not service of process under Tenn. R. Civ. P. 4.” Id. at *1–2.


       As a federal court sitting in diversity, our job is to “predict what the [Tennessee] Supreme

Court would do if confronted with the same question.” Himmel v. Ford Motor Co., 342 F.3d 593,

598 (6th Cir. 2003). When the highest court in the State has not resolved the question, we must

consider intermediate state appellate court decisions, which “may not be disregarded unless we are

convinced by other persuasive data that the highest court of the state would decide otherwise.”

                                                 -7-
No. 04-6241
Markowitz v. Harper

Lawler v. Fireman’s Fund Ins. Co., 322 F.3d 900, 903 (6th Cir. 2003) (internal quotation marks and

brackets omitted); see also Kirk v. Hanes Corp., 16 F.3d 705, 707 (6th Cir. 1994) (requiring a

“strong showing” that the highest court in the state would rule otherwise to ignore an intermediate

appellate decision) (emphasis removed).


       Boone is an intermediate Tennessee appellate court decision, and while it is unpublished, its

reasoning is sound. The court noted that “[t]he Rules of Civil Procedure use the terms ‘serve’ and

‘service’ to describe delivery of pleadings, orders, and other documents that are produced

throughout the course of litigation. The use of either word does not automatically implicate the

procedural requirements set out in Tenn. R. Civ. P. 4; to the contrary, ‘serve’ generally refers to the

less strict requirements in Tenn. R. Civ. P. 5.” Boone, 2004 Tenn. App. LEXIS 644 at *15–16

(citing Tenn. R. Civ. P. 5.01, 12.01, 27.01(2), 30.02, 33.01, 56.04). On the other hand, it explained,

Rule 4 is concerned with “Process,” namely serving “the document, usually a summons, that brings

the defendant before the court, asserts the court’s jurisdiction over the case, and requires the

defendant to respond.” Id. at *16 (footnote omitted). And the “provision[s] of Tenn. R. Civ. P. 4

that deal with service apply only to service, or delivery, of the leading process, the summons (along

with copies of the complaint).” Id. at *17. Because “Tenn. R. Civ. P. 41.04,” which “requires that

specific documents be served on defendants,” does not “include[]” “[a] summons” as “one of th[ose]

documents,” and because it “does not require that a nonsuiting plaintiff have a summons or leading

process issued on the complaint he or she has just dismissed,” the court concluded that “there is no

process to be served, and the provisions of Tenn. R. Civ. P. 4 relating to service of process do not



                                                 -8-
No. 04-6241
Markowitz v. Harper

apply.” Id. at *17–18 (citing Frye, 70 S.W.3d at 716 (“This is not technically service because a

summons is not served on the defendant at this time.”)); see also id. at *18 (“Additionally, the rule

does not specifically state that the requirements for service of process in Rule 4 apply, as is clearly

stated in other rules. See, e.g.[,] Tenn. R. Civ. P. 5.01.”); id. at *18–19 (“As the [Tennessee]

Supreme Court stated, delivery of the notice of dismissal and the original complaint is intended to

provide the defendants with notice of the original action and its dismissal and notice that the plaintiff

may commence another action within one year; the purpose is not to require the defendant to appear

and answer the dismissed complaint. The Rules of Civil Procedure do not require that notices be

served like process; they serve different functions.”); see also Kendall v. Vanderbilt Bill Wilkerson

Ctr., No. M2004-00993-COA-R3-CV, 2005 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 13, 2005)

(“Tenn. R. Civ. P. 41.01 requires a plaintiff who files a notice of voluntary dismissal to serve a copy

of the notice on all parties. It further provides that if a defendant has not been served with the

summons and complaint, the plaintiff must also serve a copy of the complaint on the defendant. In

such cases, however, the plaintiff need not obtain formal service of process on the defendant as

Tenn. R. Civ. P. 4 requires. Service pursuant to Tenn. R. Civ. P. 5.02 is sufficient.”) (citing Boone,

2004 Tenn. App. LEXIS 644 at *19).


        The officers say that even if Tennessee law required Markowitz only to comply with Rule

5, he has not done so because under that rule “the notice must be sent to the person’s last known

address or left at the clerk’s office if there is no last known address.” Officers Br. at 11. Because,

they say, “the police court coordinator’s office has not been shown to be the last known address of



                                                  -9-
No. 04-6241
Markowitz v. Harper

the Defendants” and because “[i]t obviously is not their place of abode,” the service did not comply

with Rule 5. Id. But this argument misapprehends Rule 5. That rule states that “[w]henever under

these rules service is required or permitted to be made upon a party represented by an attorney, the

service shall be made upon the attorney unless service upon the party is ordered by the court.”

Tenn. R. Civ. P. 5.02 (emphasis added). The officers have not indicated that the court ordered

service upon them as parties instead of upon their attorneys, so their position that Markowitz needed

to serve them at “their place[s] of abode” is unsupported by Rule 5. And, indeed, they have not

provided us with any authority supporting their interpretation of the rule.


                                                III.


       For these reasons, we reverse and remand the case to the district court for further proceedings

consistent with this opinion.




                                               - 10 -
