1. Statute of Limitations--federal claim dismissed--supplemental state claims
The trial court did not err in an action arising from a Sheriff firing employees after an
election by granting summary judgment for defendants based upon the failure to timely file in state
court where there was no dispute that the statute of limitations began to run when plaintiffs were
terminated on 15 July 1994 and that the statute of limitations would have ordinarily expired on 15
July 1997; the action was originally filed in federal court; the state claims were dismissed without
prejudice; plaintiffs appealed that dismissal, that appeal was subsequently dismissed pursuant to
the parties' stipulated voluntary dismissal; and plaintiffs filed in state court on 20 March 1998.
Plaintiffs' dismissal did not fall under N.C.G.S. § 1A-1, Rule 41(a), so that there is no state law
available tolling the limitations period, and the limitations period was tolled for only 30 days from
federal dismissal under 28 U.S.C.A. § 1367(d) because the federal court gained jurisdiction
supplementally and not under diversity.
2. Statute of Limitations--summary judgment--statute of limitations defense--not
specified in motion
A statute of limitations defense was properly before the court, even though not specified
in the motion for summary judgment, because defendants had pled the affirmative defense in their
answer. No other notice was necessary. The argument that defendants waived the defense by
failing to allege it in their motion is clearly incorrect under Miller v. Talton, 112 N.C. App 484.
3. Civil Procedure--summary judgment--grounds other than that specified in
judgment
Defendants could argue a statute of limitations defense in support of a summary judgment
even though the court granted the motion “for the reasons stated in defendants' brief” and the
statute of limitations was not mentioned in that brief. The court may consider pleadings on a
motion for summary judgment and defendants had included the statute of limitations in their
answer. Moreover, a correct summary judgment will not be disturbed on appeal even though the
trial court may not have assigned the correct reason for the judgment.
Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer, for
plaintiff-appellants.
Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan,
Jr., for defendant-appellees.
Moore & Van Allen, PLLC, by Jonathan D. Sasser; J. MichaelMcGuinness and Deborah K. Ross, for The North Carolin
a Police
Benevolent Association, The Southern States Police Benevolent
Association and The American Civil Liberties Union of NorthCarolina Legal Foundation, amici curiae.
Hafer, McNamara, Caldwell, Cutler & Curtner, P.A., by Edmond
W. Caldwell, Jr. and David P. Ferrell, for the North Carolina
Sheriffs' Association, amicus curiae.
HUNTER, Judge.
Plaintiff-appellants Kenneth Wayne Harter and John Robert
Payne (collectively “plaintiffs”) appeal the trial court's grant of
defendant-appellees' C. D. Vernon and U.S. Fidelity and Guaranty
Company (collectively “defendants”) motion for summary judgment
under N.C.R. Civ. P. 56. Although the trial court delineated its
grant of that motion only by stating that “the motion should be
granted for the reasons stated in defendants' brief,” we agree with
defendants that plaintiffs failed to timely file their action in
state court, and thus the statute of limitations has run on
plaintiffs' claims. Therefore, we hold that summary judgment for
defendants was proper.
Due to our disposition of this case, we need relate very
little of the factual history. Plaintiffs Harter and Payne worked
as a dispatcher and a patrol deputy (respectively) for the
Rockingham County Sheriff's Department under defendant Sheriff C.
D. Vernon (“Sheriff Vernon”). In 1994 Sheriff Vernon was up for re-
election in the democratic primary campaign and was (himself and
through other employees) actively soliciting and recruiting support
throughout the sheriff's department. Several members of thesheriff's department, including plaintiffs, did not actively
participate in any campaign nor outwardly exhibit which candidate
they were supporting. Nonetheless, Sheriff Vernon won the election
and immediately thereafter, began an investigation of employees who
“had not been loyal to him.” On 15 July 1994, two months after the
primary election, Sheriff Vernon fired seven of his employees
including plaintiffs. Other officers within the department made
statements that Sheriff “Vernon was firing the people on 'the
list.'” Although both plaintiffs had recent performance
appraisals, neither appraisals gave notice that either plaintiff
was performing unsatisfactorily or was in danger of losing his job.
As to the procedural history, we take it directly from
plaintiffs' brief to this Court. Originally, plaintiffs filed suit
in federal district court on 31 January 1995 asserting claims under42 U.S.C. § 1983 for violation of their federal First Amendment and
Due Process rights, wrongful discharge in violation of public
policy, and violation of the North Carolina Constitution. On 22
March 1996, the United States District Court denied defendants'
motion for summary judgment concluding that genuine issues of
material fact existed regarding Sheriff Vernon's motive for firing
plaintiffs and rejecting defendants' Eleventh Amendment immunity
defense. In Harter v. Vernon, 953 F. Supp. 685 (M.D.N.C. 1996),
defendants made an interlocutory appeal of the Eleventh Amendment
decision; however, the United States Fourth Circuit Court of
Appeals affirmed. Nevertheless, on remand the United States
District Court concluded that the intervening Fourth Circuit
decision in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1996),
cert. denied, 522 U.S. 1090, 139 L. Ed. 2d 869 (1998) required
dismissal of plaintiffs' 42 U.S.C. § 1983 claims. See Harter v.
Vernon, 980 F. Supp. 162, 165 (M.D.N.C. 1997). The federal court
declined to retain the supplemental jurisdiction it had obtained
over plaintiffs' state constitutional and wrongful discharge
claims. Thus on 5 November 1997, the court dismissed plaintiffs'
state claims without prejudice. Plaintiffs initially appealed to
the Fourth Circuit Court the federal court's involuntary dismissal
of their state claims. However, on 23 February 1998, the parties
stipulated to a dismissal of that appeal and the Fourth Circuit
dismissed pursuant to the parties' stipulation on 24 February 1998.
Consequently on 20 July 1998, plaintiffs filed this action in state
court alleging that they had been wrongfully discharged bydefendants and that defendants had violated their right to freedom
of speech and to participate freely in the political process under
the Constitution of North Carolina.
In their answer, defendants alleged eight affirmative
defenses, including the statute of limitations. On 11 March 1999,
defendants filed a motion for summary judgment in which they did
not specifically state the statute of limitations as grounds.
However, on 6 April 1999, the trial court allowed defendant's
motion “for the reasons stated in defendants' brief.” Plaintiffs
now appeal to this Court the trial court's grant of summary
judgment to the defendants for several reasons. However, because
we agree with defendants that plaintiffs' state action was untimely
filed, we do not reach plaintiffs' arguments.
Recently this Court visited this very issue that is now before
us: whether, after plaintiffs have filed their action in federal
court and had their state claims dismissed without prejudice,
plaintiffs can then file their actions in state court after the
statute of limitations has run on the original claim. In the
alternative, the question becomes does the federal action toll the
statute of limitations or do plaintiffs automatically gain the
advantage of N.C.R. Civ. P. 41(a) which allows plaintiffs one year
from their voluntary dismissal in which to file.
[1]We begin by noting that although plaintiffs argue they
took a voluntary dismissal in federal court (thus N.C.R. Civ. P.
41(a) should apply giving plaintiffs one year to refile in state
court), plaintiffs unambiguously admit that the federal districtcourt “dismissed the[] [state claims] without prejudice” first.
Such a dismissal, if under North Carolina law, would be an
involuntary dismissal pursuant to N.C.R. Civ. P. 41(b) instead of
41(a), this Court having held that:
“[I]f the [federal] court specifies that the
dismissal of an action . . . is without
prejudice, it may also specify in its order
that a new action based on the same claim may
be commenced within one year or less after
such dismissal.” [Thus,] [i]f plaintiff was
to take advantage of the savings provision, it
was his responsibility to convince the federal
courts to include in the order or opinion a
statement specifying that plaintiff had an
additional year to refile. . . .
Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 809, 431
S.E.2d 227, 230 (1993) (emphasis added) (quoting N.C.R. Civ. P.
41(b)). Thus, under the present circumstances and pursuant to well
established case law, plaintiffs would not be entitled to the
additional year to refile provided in N.C. Gen. Stat. § 41(a) since
the order did not so specify. Nevertheless, we choose to address
plaintiffs' argument from the standpoint that they, in fact, did
take a voluntary dismissal of their state claims in federal court.
The plaintiff in Huang v. Ziko, 132 N.C. App. 358, 511 S.E.2d
305 (1999), like the present plaintiff, initially filed his
complaint in federal court and then attempted to file in state
court after the federal court dismissed his action without
prejudice. In his attempt to convince this Court that the trial
court had erred in dismissing his action, that plaintiff argued:
[O]nce the federal action was no longer
pending, the time for filing his complaint in
state court should have been extended for the
portion of the three-year limitations periodthat had not been used when he filed the
federal action. Since less than a year and a
half had passed when plaintiff filed his
federal action, he would have had more than a
year and a half after 7 December 1995 to file
his complaint in state court.
Id. at 361, 511 S.E.2d at 307-08. However, this Court found the
plaintiff's contention unpersuasive, opining:
The rule which plaintiff would have this Court
adopt is contrary to the policy in favor of
prompt prosecution of legal claims.
Furthermore, such a rule is contrary to the
general rule that “[i]n the absence of
statute, a party cannot deduct from the period
of the statute of limitations applicable to
his case the time consumed by the pendency of
an action in which he sought to have the
matter adjudicated, but which was dismissed
without prejudice as to him[.]” 51 Am. Jur.
2d Limitation of Actions § 311 (1970). In
this case, no statute or rule provides for the
exclusion of the time during which the federal
action was pending from the limitations
period.
We believe the question presented by this
appeal is controlled by 28 U.S.C.A. § 1367
(1993). That federal statute provides that
when a federal district court has original
jurisdiction over a civil action it may also
exercise “pendent” or “supplemental
jurisdiction over all other claims that are so
related to claims in the action within such
original jurisdiction that they form part of
the same case or controversy[.]” 28 U.S.C.A.
§ 1367(a). A federal district court may
decline to exercise supplemental jurisdiction
over a claim if it “has dismissed all claims
over which it has original jurisdiction[.]”
28 U.S.C.A. § 1367(c)(3). The statute further
provides that the period of limitations for
any supplemental claim “shall be tolled while
the claim is pending and for a period of 30
days after it is dismissed unless State law
provides for a longer tolling period.” 28
U.S.C.A. § 1367(d). Since the claims now
asserted by plaintiff were supplemental claims
dismissed by the United States District Court,
he was entitled to thirty additional days tofile his complaint in state court after the
United States Court of Appeals reached its
decision, unless some state statute provided
for a longer period of time.
. . .
Because North Carolina has no applicable
“grace period” longer than the thirty-day
period set out in 28 U.S.C.A. § 1367, the
statute of limitations was tolled while the
federal action was pending and for thirty days
thereafter. Plaintiff could have filed his
complaint in state court at any time during
the pendency of the federal action and up to
thirty days after the United States Court of
Appeals reached its decision . . . .
Id. at 361-62, 511 S.E.2d 308 (emphasis added) (citations omitted).
In the case at bar, there is no dispute that the statute of
limitations began to run when plaintiffs were terminated on 15 July
1994 and ordinarily would expire on 15 July 1997. Like the
plaintiff in Huang, supra, the plaintiffs at bar first filed in
federal court on 31 January 1995 (6 months after the limitations
period had begun to run), and the federal district court dismissed
without prejudice plaintiffs' state claims on 5 November 1997.
Plaintiffs appealed to the United States Fourth Circuit Court which
later dismissed plaintiffs' appeal on 24 February 1998 pursuant to
the parties' stipulated voluntary dismissal. Subsequently on 20
July 1998, plaintiffs filed their state claims action in state
court. We find the facts in Huang sufficiently analogous and hold
that plaintiffs had thirty days from 24 February 1998 to refile
their state claims in state court, not one year.
Under [28 U.S.C. § 1367(d)], the state period
of limitations for a plaintiff's pendent state
claims is tolled for a period of thirty days
after the federal district court has dismissedthe plaintiff's claims. . . . If, however, a
plaintiff appeals the federal district court's
dismissal of his claims, the plaintiff's
pendent state claims are tolled for a period
of thirty days following the date of the
decision of the federal court of appeals.
Estate of Fennell v. Stephenson, ___ N.C. App. ___, ___, 528 S.E.2d
911, 914 (2000) (slip op. 6).
However, plaintiffs argue that because Huang, supra, was
decided seven months after the instant action was filed in state
court, Huang cannot be applied retroactively. We recognize that
plaintiffs' argument is essentially that Huang created an ex post
facto effect with regard to whether the statute of limitations is
tolled by the federal action and how much time a plaintiff, under
the present circumstances, has to refile her complaint in state
court after the federal court has dismissed it. Plaintiff's
argument is meritless.
Under U.S. Const. art. I, § 10, cl. 1, and N.C. Const. art. I,
§ 16, the law is well established that there are two critical
elements which must be present for a law to be considered “ex post
facto”: (1) the case law or statute must apply to events occurring
before its enactment, and (2) the case law or statute as applied
must disadvantage the offender affected by it. See State v. Jones,
133 N.C. App. 448, 516 S.E.2d 405 (1999), and In Re Hayes, 111 N.C.
App. 384, 432 S.E.2d 862 (1993). Thus, in order for plaintiffs'
objection to be sustained, this Court must find that Huang was both
decided after plaintiffs' firing and that applying Huang to
plaintiffs' case will disadvantage them. First, we agree with plaintiffs that Huang was decided after
plaintiffs filed their action. However, we find it unnecessary to
rely solely on Huang since earlier cases bring us to the same
conclusion. The key to whether a plaintiff in the present
situation gains the additional year provided under N.C.R. Civ. P.
41(a) is governed by how the federal court gained jurisdiction over
the state issues.
Ordinarily, a voluntary dismissal in
federal court under Federal Rule 41 “leaves
the situation as if the action had never been
filed.” Wright & Miller, Federal Practice and
Procedure: Civil § 2367 (1971). “The statute
of limitations is not tolled by bringing an
action that is later voluntarily dismissed.”
Id. Federal courts ordinarily need not
consider the applicability of a savings
provision, as the federal rule contains no
such provision. This applies to cases in
federal court in which jurisdiction is not
based on diversity of citizenship and in which
there is no occasion for the federal court to
apply state substantive law.
For example, in Humphreys v. United
States, 272 F.2d 411 (9th Cir. 1959), a
plaintiff sued the United States government
under the Federal Tort Claims Act.
Plaintiff's first suit in federal court was
brought within the statute of limitations, but
plaintiff voluntarily dismissed in order to
sue in another federal court more convenient
to the parties and witnesses. Plaintiff
refiled in the other federal court outside the
statute. The court upheld the denial of
plaintiff's motion to set aside the order of
dismissal and reinstate her first suit. It
noted that the statute had expired when the
motion was made because plaintiff's dismissal
under the federal rules did not toll the
statute and left “the situation the same as if
the suit had never been brought in the first
place.” Id. at 412. Similar treatment of
federal voluntary dismissals in nondiversity
cases is seen in patent claims -- see A.B.
Dick Co. v. Marr, 197 F.2d 498 (2d Cir. 1952),cert. denied, 344 U.S. 878, 97 L. Ed. 680,
reh'g denied, 344 U.S. 905, 97 L. Ed. 699
(1952) -- and cases involving § 1983 claims
[with state claims attached], see Cabrera v.
Municipality of Bayamon, 622 F.2d 4 (1st Cir.
1980). Thus, a voluntary dismissal under the
Federal Rules in a nondiversity case in
federal court does not toll the statute of
limitations or invoke a savings provision.
Bockweg v. Anderson, 328 N.C. 436, 438-39, 402 S.E.2d 627, 628-29
(1991) (emphasis added). Furthermore,
In Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C.
1981), plaintiff filed in federal court a
medical malpractice claim [a state claim]
which was voluntarily dismissed, by
stipulation of the parties, without prejudice.
Plaintiff sought to file the same action in a
North Carolina state court within a year of
the dismissal, but outside the statute of
limitations, and suffered summary judgment on
statute of limitations grounds because High v.
Broadnax precluded application of the savings
provision where the original suit was brought
in a federal court . . . . Plaintiff then
sought to refile his suit in federal court,
whereupon defendant again moved to dismiss.
The court in Haislip stated:
“This Court is of the opinion North Carolina
Rule 41(a) is a tolling provision
legislatively adopted and falls within the
first category of the analysis [requiring
application of state substantive law]. . . .
The tolling of a state statute of limitations
in a diversity case is strictly a substantive
matter of state law which Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.
Ed. 1188 (1938) and Guaranty Trust Co. v.
York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed.
2079 (1945) command that this Court follow
absent substantial countervailing federal
interests. Id. . . .”
[Haislip, 435 F. Supp.] at 98 (emphasis added)
(citation omitted). . . .
. . .
The effect of a voluntary dismissal in
federal court, pursuant to the Federal Rules,
thus depends on whether the federal court's
jurisdiction is based on the existence of a
federal question or on diversity of
citizenship. . . . [T]he effect of a
voluntary dismissal taken under the Federal
Rules by a plaintiff in a federal court
sitting in diversity applying North Carolina
law is to allow the plaintiff up to one year
to refile in federal court.
Id. at 440-41, 402 S.E.2d at 630 (emphasis added). Therefore, it
is apparent that where the federal court gains jurisdiction over
state issues strictly because the action is a diversity action
(which is not the case here), the federal court must apply state
substantive law in all respects of the case, including in its
dismissal of the claims with or without prejudice. However where,
as in the case at bar, the federal court gains jurisdiction over
state claims supplementally, pursuant to 28 U.S.C.A. § 1367(a),
because the action was first brought based on federal or
constitutional law, the court is not bound to state substantive law
only. Thus because, in the case before us, the federal court
gained supplemental jurisdiction over plaintiffs' state law claims
not due to diversity, 28 U.S.C.A. § 1367(d) applies and the
limitations period for plaintiffs' supplemental claims was tolled
for 30 days after the action was dismissed because “a voluntary
dismissal under the Federal Rules in a nondiversity case in federal
court does not toll the statute of limitations or invoke a savings
provision.” Bockweg, 328 N.C. at 439, 402 S.E.2d at 629. “The
United States Code provides that when a state claim is brought in
federal district court pursuant to 28 U.S.C. § 1367(a), the stateperiod of limitations for the claim 'shall be tolled while the
claim is pending and for a period of 30 days after it is dismissed
unless State law provides for a longer tolling period.'” Fennell,
___ N.C. App. at ___, 528 S.E.2d at 914 (slip op. 5) (quoting 28
U.S.C. § 1367(d) (1994)). In the case at bar, with plaintiffs'
dismissal not falling under N.C.R. Civ. P. 41(a), there is no state
law available to them that tolls the limitations period.
[2]Plaintiffs further contend that “[d]efendants' statute of
limitations defense is not properly before the court” because
defendants did not “specify in its motion an intent to argue the
statue of limitations . . . .” Again, we are unpersuaded.
Although plaintiffs cite Miller v. Talton, 112 N.C. App. 484, 435
S.E.2d 793 (1993) in support of their position, we find it
inapposite to their position and, in fact, find it dispositive in
defendants' favor.
In Miller, the plaintiffs argued that because the defendants
failed to formally amend their answer to affirmatively plead the
statute of limitations, defendants' failure constituted a waiver of
that defense. Id. at 487, 435 S.E.2d at 796. Finding that
plaintiffs had either expressly or impliedly consented to
defendants' raising the defense, this Court stated
The affirmative defense relied upon should be
referred to in the motion for summary
judgment; however, in the absence of an
expressed reference, if the affirmative
defense was clearly before the trial court,
the failure to expressly mention the defense
in the motion will not bar the trial court
from granting the motion on that ground. This
is especially true where the party opposing
the motion has not been surprised and has hadfull opportunity to argue and present
evidence. “Thus, although it is better
practice to require a formal amendment to the
pleadings, unpleaded defenses, when raised by
the evidence, should be considered in
resolving a motion for summary judgment.”
Ridings v. Ridings, 55 N.C. App. 630, 632, 286
S.E.2d 614, 615-16, disc. review denied, 305
N.C. 586, 292 S.E.2d 571 (1982).
Id. at 487, 435 S.E.2d at 796-97 (citations omitted).
In the case at bar, we find it disingenuous for plaintiffs to
argue that they did not have proper notice of defendants' intent to
plead the statute of limitations as a defense. From the very
beginning, defendants pled the affirmative defense in their answer.
Thus no other notice was necessary. Additionally, plaintiffs'
argument that because defendants failed to allege the defense in
their motion for summary judgment they waived the defense is
clearly incorrect under Miller, supra.
[3]Finally, plaintiffs argue that because the trial court
granted defendants' summary judgment motion “'for the reasons
stated in defendants' brief,'” defendants cannot now argue the
statute of limitations defense because it could not have been the
basis upon which the trial court granted summary judgment since it
was not mentioned in defendants' brief to that court. Again, we
are unpersuaded by plaintiffs' argument.
It has long been the law in North Carolina that in granting or
denying a motion for summary judgment under N.C. Gen. Stat. § 1A-1,
Rule 56, the trial court may consider “the pleadings, depositions,
interrogatories, and admissions on file, together with any
affidavits . . .” which are before the court. Johnson v. InsuranceCo., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). Therefo
re, it
was proper in this case for the trial court to consider defendants'
answer (which included their affirmative defense of the statute of
limitations) in granting their motion for summary judgment.
Furthermore, our Supreme Court has long established that:
If the granting of summary judgment can be
sustained on any grounds, it should be
affirmed on appeal. If the correct result has
been reached, the judgment will not be
disturbed even though the trial court may not
have assigned the correct reason for the
judgment entered. . . .
Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989)
(emphasis added).
Therefore, the judgment of the trial court is
Affirmed.
Judges GREENE and HORTON concur.
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