Paul S. MARKOWITZ, Plaintiff-Appellant, v. John HARPER, City of Memphis Police Officer; B. Giannini, City of Memphis Police Officer, Defendants-Appellees.
No. 04-6241.
United States Court of Appeals, Sixth Circuit.
July 24, 2006.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.
PETER C. ECONOMUS, District Judge, dissents from the order affirming the judgment of the district court for the reasons set out in his initial opinion in this case. See Dye v. Hofbauer, 45 Fed.Appx. 428 (6th Cir.2002).
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.
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
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 [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
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).
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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)). Here, the parties agree, Tennessee‘s one-year limitations period for personal-injury actions governs Markowitz‘s § 1983 and § 1985 claims. See
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.”
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.”
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 party.”
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].”
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 such person‘s last known address,” and that “[s]ervice by mail is complete upon mailing.”
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 WL 2254012, 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 *2, 2004 Tenn.App. LEXIS 644, at *6. At issue in that case thus was the same argument presented here: “The defendants argued that Plaintiff‘s service pursuant to
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.” 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
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 the Defendants” and because “[i]t obviously is not their place of abode,” the service did not comply with Rule 5.
III.
For these reasons, we reverse and remand the case to the district court for further proceedings consistent with this opinion.
SUTTON
CIRCUIT JUDGE
Gloria CHELLMAN-SHELTON and Richard Shelton, Plaintiffs-Appellees, v. William GLENN, Crystal Glenn, Employees of the Town of Smyrna in their professional responsibility and individually, and Bob Spivey, Mayor, Defendants-Appellants.
No. 05-5595.
United States Court of Appeals, Sixth Circuit.
July 28, 2006.