Harding v. Williams Property Co ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY VIRGINIA HARDING,
Plaintiff-Appellant,
v.
WILLIAMS PROPERTY COMPANY, d/b/a
No. 96-2713
Smithy Braedon/Oncor
International; WILLIAMS PROPERTY
VENTURE, d/b/a Smithy
Braedon/Oncor International,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-96-895-HAR)
Argued: March 2, 1998
Decided: August 31, 1998
Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Martin Lee Lowy, Dallas, Texas, for Appellant. Ann-
Marie F. Magruder, Cynthia Ruth Cook, MAGRUDER & ASSO-
CIATES, P.C., McLean, Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Mary Virginia Harding appeals the dismissal of this action she
brought against her former employer and a successor entity for
alleged violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. The dismissal was based on failure to effect
timely service of process and was hence without prejudice. Because
her claims were by then time barred, however, Harding could not
reinstitute them. Instead, she brings this appeal. We affirm the judg-
ment of the district court.
I.
The facts underlying Harding's complaint are of little relevance to
the issues before us. She was employed by appellee Williams Prop-
erty Company (WPC) at an office in Maryland. During her tenure,
which ended with her firing in late March or early April 1993, she
asserts that she was subjected to gender discrimination and retaliation
for reporting the discrimination. WPC ceased operations in November
1993 upon the formation of Williams Property Venture (WPV). WPV
never employed Harding, but it purchased some or all of WPC's
assets.
After she left WPC, Harding moved to Texas. On February 6,
1995, nearly two full years after her termination, Harding filed this
suit against WPC and WPV in the United States District Court for the
Northern District of Texas. Her counsel sent letters to attorneys for
the defendants asking whether they would accept service of the
summons,1 but they declined.
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1 Harding was apparently aware of WPC's counsel's identity from prior
state court litigation.
2
On June 6, 1995, the very last day allotted for service by Fed. R.
Civ. P. 4(m),2 Harding delivered a copy of the summons and com-
plaint to the Secretary of State of Texas as statutory agent for nonresi-
dent corporations lacking a designated agent for service of process.
See Texas Civil Practice & Remedies Code,§ 17.044. The Secretary
of State was unable to forward the papers to the defendants because
Harding had failed to provide an address for the forwarding. Upon
learning of this omission, Harding identified Jerome Williams as a
person authorized to accept process for the defendants. This identifi-
cation was erroneous.
On July 25, 1995, Harding delivered another summons and com-
plaint to the Secretary of State. This one identified Lawrence Leber
at WPC's office in Fairfax, Virginia, as the person to whom the
papers should be forwarded.3 The Secretary of State performed the
forwarding function on July 26, 1995.
The defendants moved to dismiss on a variety of grounds, includ-
ing insufficient service, improper venue, and lack of personal jurisdic-
tion. In response, Harding filed a response and motions for change of
venue and for an extension of time to effect service. On January 25,
1996, the district court granted the motion to dismiss. The court held
that the defendants did not have sufficient contacts with Texas to sub-
ject them, in accord with due process, to personal jurisdiction there.
Harding could have appealed this final judgment to the Court of
Appeals for the Fifth Circuit. Instead, she moved for reconsideration.
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2 Rule 4(m) states:
Time Limit for Service. If service of the summons and com-
plaint is not made upon a defendant within 120 days after the fil-
ing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be
effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time
for service for an appropriate period. This subdivision does not
apply to service in a foreign country pursuant to[Rule 4(f) or
4(j)(1)].
3 Mr. Leber was president of WPC.
3
She did not ask the district court to rethink its ruling and reinstate the
case to that court's docket; rather, she requested that, "in the interest
of justice," the court transfer the case under 28 U.S.C. § 1406(a) to
a district in which personal jurisdiction was present and venue would
lie. The district court granted the motion.4 It vacated the dismissal,
and, based on the premise that its finding of no personal jurisdiction
subsumed a finding of improper venue, it deemed a transfer appropri-
ate. Finally, the court determined that the District of Maryland was
the proper transferee court, inasmuch as WPC employed Harding in
Maryland and the alleged assault and retaliatory termination occurred
there. See 42 U.S.C. § 2000e-5(f)(3) (venue of Title VII suit lies in
"any judicial district in the State in which the unlawful employment
practice is alleged to have been committed, in the judicial district in
which the employment records relevant to such practice are main-
tained and administered, or in the judicial district in which the
aggrieved person would have worked but for the alleged unlawful
employment practice").5
The transferred case was entered onto the docket of the Maryland
district court on March 25, 1996. Harding took no immediate steps to
prosecute her case. On June 10, 1996, the defendants again moved to
dismiss. They pointed out that they had still not been properly served;
indeed, though the case had been pending in Maryland for ten weeks,
Harding's counsel had not even so much as entered an appearance
there.
Two weeks later, Harding finally appeared through counsel and
responded to the motion. WPC filed a reply on July 9, and, two days
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4 A court's lack of personal jurisdiction does not deprive it of the power
to transfer a case under 28 U.S.C. § 1406(a). Goldlawr, Inc. v. Heiman,
369 U.S. 463 (1962).
5 Venue of a Title VII action is therefore "circumscribed by the very
statute that gives ... the right to sue in the first place." Bolar v. Frank,
938 F.2d 377, 378 (2nd Cir. 1991) (per curiam). This specific circum-
scription overrides the general venue statute at 28 U.S.C. § 1391. See
Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 587-588
(9th Cir. 1991) (per curiam), cert. denied, 505 U.S. 1225 (1992). Accord-
ingly, Harding's action could not have proceeded in Texas even had the
defendants been subject to personal jurisdiction there.
4
later, Harding sought and received a new summons from the Mary-
land court.
On August 1, 1996, a return of service executed by a private pro-
cess server was filed in the district court. The process server reported
that he had visited the defendants' "dwelling house or usual place of
abode" on July 17, 1996, and had left the summons and complaint
with "Robert Orr," a "person of suitable age and discretion then resid-
ing therein."
WPC and WPV moved to quash service. In a series of affidavits,
they asserted that the process server had appeared at WPV's place of
business and had asked for Mr. Leber. Upon being told that Leber was
in a meeting and could not come out, the server left, only to return
a short while later. He tossed the papers on the receptionist's desk and
left.
The defendants further asserted that (i) the receptionist is not
authorized to accept service of process, (ii) the office is not a "dwell-
ing house" or "place of abode," (iii) no one named "Robert Orr"
works for WPC or WPV, (iv) David Orr is a WPV employee but does
not reside at the office, and (v) the server did not deliver or attempt
to deliver the papers to David Orr.
The district court granted the motion to dismiss. The court rea-
soned that the Texas court's lack of personal jurisdiction necessarily
rendered Harding's attempts to serve the Texas Secretary of State
ineffective, that this ineffectiveness was not cured by the transfer
order standing alone, and that Harding had failed to establish "good
cause" warranting an extension of the 120-day limit for service set by
Rule 4(m). Harding appeals.
II.
As her first question on appeal, Harding asks, "Did the District
Court for the Northern District of Texas err in holding that Defen-
dants were not subject to personal jurisdiction in Texas in this
action?" We cannot answer this question, at least not under the terms
in which it is posed. Subject to exceptions not relevant here, "appeals
5
from reviewable decisions of the district and territorial courts shall be
taken . . . (1) [f]rom a district court of the United States to the court
of appeals for the circuit embracing the district[.]" 28 U.S.C. § 1294.
We have interpreted § 1294(1) to prohibit review of pre-transfer
decisions by district courts outside this circuit. E.g., Brock v. Entre
Computer Centers, Inc., 933 F.2d 1253, 1257 (4th Cir. 1991); Linnell
v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980). Consequently, we may not
decide whether the Texas district court erred.
On the other hand, a transferred case comes with a history of inter-
locutory decisions, any or all of which are subject to modification in
the transferee court at any time before final judgment. See Fed. R.
Civ. P. 54(b); Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 817 (1988). If the transferee court modifies an order of the
transferor court, or on motion of a party is urged to do so and refuses,
we have the power to review that decision. 6 In a similar vein, matters
heard by the transferee court may involve subsidiary questions of law
already decided by the transferor court. To the extent, at least, that
such subsidiary questions of law are actually disputed before and
resolved by the transferee court (as opposed to being acquiesced in by
the parties), we would seem to have jurisdiction to review them.
The simplest way for a litigant opposing an accomplished transfer
to assure some appellate review of it is to move to retransfer the case.7
Harding filed no such motion here; if she had, it would surely have
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6 Because, however, the district court's conscious decision to adhere to
an order of the transferor court is an application of the law-of-the-case
doctrine, our review is limited to determining whether the transferor's
rulings were "clearly erroneous and would work a manifest injustice."
Arizona v. California, 460 U.S. 605, 618 n.8 (1983). "Certainly, this
standard is far more deferential than direct appellate review." Chrysler
Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1518 (10th Cir.
1991).
7 This method is simple, but it is not particularly potent because the dis-
trict courts should hesitate to retransfer cases."[T]ransferee courts that
feel entirely free to revisit transfer decisions of a coordinate court
threaten to send litigants into a vicious circle of litigation." Christianson,
486 U.S. at 816.
6
been denied summarily. After all, the transfer was the desired result
of Harding's own motion. Her case had been dismissed for lack of
personal jurisdiction. She could have fought the ruling or reckoned
with the effect of it, and she chose the latter. Having deliberately for-
gone the opportunities for reconsideration or review of the personal
jurisdiction issue in the Texas district court and in the Court of
Appeals for the Fifth Circuit, she could scarcely have expected the
transferee district court to revisit it.
It did not. The Maryland court simply noted that the Texas court
had found no personal jurisdiction, and it then applied Rule 4(e)(1)
in holding that any attempted service of process under Texas state law
was necessarily ineffective. While we can and do review this applica-
tion of Rule 4(e)(1), review is not difficult. Service by a method pro-
vided by the law of the forum state is effective only if the courts of
the forum state could acquire personal jurisdiction using that same
method. Omni Capital International v. Rudolf Wolff & Co., 484 U.S.
97, 108 (1987).
III.
Harding next asserts that service of process in the transferee court
was unnecessary under the circumstances of her case, i.e. where the
defendants had actual notice of the suit and the ineffectiveness of ser-
vice flowed from the transferor court's lack of personal jurisdiction
over them. We disagree.
Fed. R. Civ. P. 4(a) strongly implies that service of a summons
issued by the transferee court is a prerequisite to personal jurisdiction.
The rule states, in relevant part: "The summons shall be signed by the
clerk, bear the seal of the court, identify the court and the parties, be
directed to the defendant, and state the name and address of [the
plaintiff or his attorney]." (emphasis added).
The character and purpose of the summons confirm the accuracy
of this implication. The summons is one means by which the federal
courts assure defendants of due process of law. Omni Capital, 484
U.S. at 104. It must provide the defendant with sufficient information
to permit him to fairly defend himself at a proper time and place, but
it is much more than a mere notice. It is an exercise of the power of
7
the issuing court to deprive the defendant of his liberty or property
should he not appear or appear but not prevail. Consequently, it is
essential to a summons' validity that the issuing court have the power
to effect the deprivation.
Before a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service of
summons must be satisfied. "[S]ervice of summons is the
procedure by which a court having venue and jurisdiction of
the subject matter of the suit asserts jurisdiction over the
person of the party served."
Id. (quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438,
444-445 (1946)).
It follows, then, that previously unperfected personal jurisdiction
does not attach in a transferee district court until a summons issued
by that court is properly served. Buggs v. Ehrnschwender, 968 F.2d
1544 (2nd Cir. 1992).
Harding relies heavily on Bentz v. Recile, 778 F.2d 1026, 1028-
1029 n.5 (5th Cir. 1985) (per curiam), in which a judgment was
affirmed notwithstanding the lack of service after transfer from a dis-
trict court that lacked personal jurisdiction. The court acknowledged
that the transfer order itself did not cause jurisdiction to attach and
that service in the transferee court was "better practice." It neverthe-
less affirmed, because, in its words, "a remand .. . would . . . be
merely a useless act and a waste of judicial resources." The court sup-
ported this holding by pointing out that the defendants had received
adequate notice of the action, and, perhaps more critically, that there
were no statute of limitations or choice of law issues in the case.
Like the Second Circuit in Buggs, "[w]e confess some puzzlement
over Bentz,"8 and we can only conclude that the panel must have
found that any error was harmless. So understood, Bentz does not
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8 968 F.2d at 1547. The court continued, "There was nothing in [Bentz],
so far as we can determine, other than the transfer that ``in and of itself'
cured the constitutionally defective service under the Mississippi long-
arm statute." Id.8
conflict with our holding today, because the outcome-determinative
statute of limitations defense present here quells any conceivable
assertion of harmless error.9
IV.
Finally, Harding argues that the district court should have given her
120 days from the docketing of the transfer to effect service. Even if
we were to agree with her, her case might still be subject to dismissal
on remand, because the service of the Maryland summons (on the
114th day, we should add) remains subject to a unresolved motion to
quash. We do not agree with her.
Rule 4(m) is not ambiguous. Unless the summons is served "within
120 days after the filing of the complaint," the district court is empow-
ered to dismiss the suit without prejudice. Harding asserts that the rule
cannot mean what it says in transferred cases, because good faith liti-
gation in the transferor court may consume most or all of the 120
days.
The rule is sensitive to Harding's fears. First, and perhaps fore-
most, 120 days is a long time, and nothing in the rule requires or even
encourages a party to wait until the very last day before attempting
service. Prompt attempts at service, even if constitutionally ineffec-
tive, can bring personal jurisdiction and venue issues to the fore with
time to spare for re-service in a transferee court.
Second, where, after protracted litigation, a case is transferred "in
the interest of justice," we would generally expect the transferee court
to find "good cause" to extend the period for service for an "appropri-
ate period" under the last clause of the first sentence in Rule 4(m).
The length of any such "appropriate" period is committed to the dis-
trict court's discretion, though we would not hesitate to correct an
abuse of that discretion.
In the case of a transfer after protracted but diligent litigation, we
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9 Our restraint at rejecting Bentz should not be read as an endorsement
of it.
9
think that there would rarely if ever be a need for a 120-day period.
Indeed, in the usual case the transfer to a more appropriate district
will have removed most obstacles to prompt and certain service.
Thus, even if Harding had demonstrated diligence throughout the
case, the 114-day minimum period she needs to even place the motion
to quash in issue would probably be excessive. She was not diligent;
in the district court's words, "neglect would be a better term to
describe Plaintiff's efforts, or lack thereof, to effect service following
the initiation of this suit." Harding v. Williams Property Co., No.
HAR 96-895, slip op. at 8 (D. Md., Oct 11, 1996). The district court
did not abuse its discretion by declining to find"good cause" for the
extension of time.10
The judgment of the district court is affirmed.
AFFIRMED
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10 Harding argues that the transfer "in the interest of justice" by the
Texas court compelled the Maryland court to give her some time to effect
service. As a hypothetical matter in a run-of-the-mine case, there is merit
to her argument. But the point here is whether the court abused its discre-
tion in declining to give her at least 114 days to do so. We can review
things only as they happened. Had she attempted to effect service within
a few days or weeks of the transfer, the district court might have seen
things somewhat differently.
10