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Statute of Limitations--commencement of action--delayed service--Rule 3
The trial court did not err by dismissing a REDA (Retaliatory Employment
Discrimination Act) claim on the grounds that the statute of limitations had run where plaintiff
attempted to commence the action by delayed service, the application for the extension to file the
complaint was filed and a summons issued by the clerk's office that day, that summons was not
sufficient to begin the action because it was not issued pursuant to an order entered by the clerk
granting plaintiff's application for an extension, a second summons was issued pursuant to such
an order and that summons commenced the action, and the action accordingly commenced
beyond the time limit.
Appeal by plaintiff from order filed 16 April 1998 by Judge
Henry V. Barnette, Jr. in Wake County Superior Court. Heard in
the Court of Appeals 30 March 1999.
Daniel F. Read, for plaintiff-appellant.
Ogletree, Deakins, Nash, Smoak and Stewart, P.C., by A.
Bruce Clarke, C. Matthew Keen, and Robert A. Sar, for
defendant-appellee.
GREENE, Judge.
Christopher Telesca (Plaintiff) appeals from the trial
court's grant of SAS Institute's (Defendant) motion to dismiss.
Plaintiff was employed with Defendant as a photographer and
was terminated. After his termination, Plaintiff filed a
complaint with the Workplace Retaliatory Discrimination Division
of the North Carolina Department of Labor (NCDOL), alleging
retaliatory termination. The NCDOL issued Plaintiff a right-to-
sue letter on 19 September 1995, giving Plaintiff until 18
December 1995 to commence a civil action against Defendant. On
18 December 1995, Plaintiff filed an application with the WakeCounty Superior Court clerk's office for an extension to file his
complaint. On that same date, the clerk's office issued a
summons to Defendant directing it to "answer the complaint of the
plaintiff." The summons, however, was not accompanied by a
complaint. On 22 December 1995, a deputy superior court clerk
entered an order allowing Plaintiff's application, ordered
Plaintiff's complaint to be filed on or before 7 January 1996,
(See footnote 1)
and issued a civil summons commencing Plaintiff's suit. This
summons, which was served on Defendant along with the order of
the clerk authorizing the complaint extension, notified Defendant
that it was required to serve its answer "to the complaint upon
the plaintiff . . . after you have been served with the complaint
as authorized in the attached order." Plaintiff did not file his
complaint until 9 January 1996.
On 29 April 1996, Plaintiff voluntarily dismissed his
complaint against Defendant without prejudice, but refiled his
complaint on 15 April 1997, alleging, among other claims, a
violation of the Retaliatory Employment Discrimination Act
(REDA).
(See footnote 2)
On 27 February 1998, Defendant moved to dismiss the REDA
claim on the grounds that the statute of limitations had expired. The motion was allowed on 16 April 1998.
The dispositive issue is whether a civil action is
commenced, within the meaning of Rule 3 of our Rules of Civil
Procedure, upon the filing of an application for an extension of
time to file a complaint and upon the issuance of a summons.
A civil action under REDA must "be commenced by an employee
within 90 days of the date upon which the right-to-sue letter was
issued." N.C.G.S. § 95-243(b) (1993). A civil action can be
commenced either by: (1) "filing a complaint with the court"; or
(2) the issuance of a summons when a person makes an "application
to the court . . . requesting permission to file [a] complaint
within 20 days" and "[the] court makes an order . . . granting
the requested permission." N.C.G.S. § 1A-1, Rule 3(a) (1990).
"The summons and the court's order shall be served in accordance
with the provisions of Rule 4." Id. Thus, an action is not
commenced under the delayed service provision of Rule 3 until:
(1) an application is made to the court for permission to file a
complaint within twenty days; (2) the court enters an order
granting that extension; and (3) a summons is issued pursuant to
that order. See Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d
496 (1993).
In this case, Plaintiff attempted to commence his action by
delayed service. The application for the extension to file the
complaint was filed on 18 December 1995 and a summons was issued
by the clerk's office on that day. This summons was not
sufficient to commence the action because it was not issuedpursuant to an order entered by the clerk granting Plaintiff's
application for an extension. A second summons dated 22 December
1995, however, was issued pursuant to an order entered by the
clerk granting Plaintiff's application for a complaint extension,
and that summons commenced Plaintiff's action.
Accordingly, Plaintiff's REDA action commenced on 22
December 1995, ninety-four days after the right-to-sue letter was
issued and four days beyond the ninety-day time limit mandated in
section 95-243(b). The trial court, therefore, properly granted
Defendant's motion to dismiss on the grounds that the statute of
limitations had run on Plaintiff's REDA claim. See Long v. Fink,
80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986) (statute of
limitations violation is a proper basis for the trial court to
dismiss a time-barred claim).
Affirmed.
Judges MARTIN and MCGEE concur.
Footnote: 1
Footnote: 2
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