Khaliq v. Draper & Goldberg, P.L.L.C.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1950
ABDUL WASEY KHALIQ; DEBBIE K. KHALIQ,
Plaintiffs - Appellants,
v.
DRAPER & GOLDBERG, P.L.L.C.; L. DARREN GOLDBERG,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cv-00485-GBL)
Submitted: June 5, 2008 Decided: July 16, 2008
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Howard Robert Erwin, Jr., ERWIN LAW FIRM, PA, Baltimore, Maryland,
for Appellants. Robert A. Oliveri, Jr., DRAPER & GOLDBERG, PLLC,
Leesburg, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdul and Debbie Khaliq appeal the district court’s order
dismissing their complaint alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692o (2000),
for failure to state a claim upon which relief can be granted
because it was filed outside the one-year statutory limitations
period set out in 15 U.S.C. § 1692k(d).
The Khaliqs filed an action against the same defendants
for the same violations of the FDCPA in the United States District
Court for the District of Maryland within the limitations period,
on September 5, 2006. That action was transferred to the United
States District Court for the Eastern District of Virginia on March
20, 2007, and assigned case number 1:07-cv-275. The Eastern
District of Virginia dismissed that case for failure to timely
perfect service of process, pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure, on May 16, 2007, the same day the Khaliqs
filed their complaint in the instant case.
The Khaliqs argue that the pendency of another suit in
federal court involving the same claims and parties tolls the
statute of limitations when the prior suit is involuntarily
dismissed. They contend that the defendants have not been
prejudiced by the delay and the purpose of the limitations period
will not be frustrated if their suit is allowed to proceed. They
argue that they should be permitted to refile their complaint
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because their prior complaint was dismissed without prejudice
pursuant to Rule 4(m), regardless of whether their complaint was
refiled outside the limitations period.
We review de novo a district court’s dismissal of a
complaint for failure to state a claim upon which relief can be
granted. Mayes v. Rappoport, 198 F.3d 457, 460 (4th Cir. 1999).
FDCPA actions must be brought “within one year from the date on
which the violation occurs.” 15 U.S.C. § 1692k(d) (2000). Rule
4(m) provides:
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. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).
We hold that the district court correctly granted the
defendants’ motion to dismiss the Khaliqs’ complaint as barred by
the FDCPA’s statute of limitations. The Rule 4(m) dismissal of the
Khaliqs’ prior complaint by the Eastern District was based upon a
longstanding federal rule of procedure and the district court’s
finding that the Khaliqs did not show good cause for their delay in
perfecting service of process. Plaintiffs who cannot successfully
challenge a Rule 4(m) dismissal by showing good cause for their
delay should not be allowed to avoid the consequence of that
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dismissal and the statute of limitations by simply filing a new
complaint immediately.
For the reasons stated above, we affirm. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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