UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 6, 1981
YANCI DUPREE, APPELLANT
BURTELL JEFFERSON, ET AL. 1981.CDC.280 DATE DECIDED: OCTOBER 6, 1981
Before ROBINSON, Chief Judge, WALD, Circuit Judge, and JUNE L. GREEN, District Judge.*
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-0917).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
This is an appeal from an order of the District Court dismissing appellant's action against the District of Columbia, its Chief of Police, and numerous named police officers as barred by the statute of limitations. The issue presented is whether, under District of Columbia law, the statute is tolled during pendency of a suit ultimately dismissed involuntarily without prejudice-a question not yet resolved by the District of Columbia courts. Concluding that those courts would hold that the running of the statute is not arrested, we affirm the order of dismissal. I
Appellant's controversy with the District's Metropolitan Police Department has been before the courts, in one form or another, for eight years. On August 10, 1973, appellant filed Civil Action No. 1602-73 in the District Court against the Chief of Police, several police officers, and the District of Columbia, alleging that she had been deprived of constitutional rights and had suffered physical injury, pain, mental anguish, and loss of freedom as a result of numerous encounters with police officers during 1972 and 1973. *fn1 Specifically, the complaint averred that on August 30, 1972, appellant was arrested twice for "incommoding the sidewalk," *fn2 and on the second of these occasions was physically and verbally abused. *fn3 The complaint further charged that subsequent to the August 30 incident, she was followed without reason and stopped or arrested, the last time on July 28, 1973. *fn4 In her prayer for relief, appellant sought to have two statutes *fn5 declared unconstitutional, both facially and as applied. *fn6 She also demanded injunctive relief, *fn7 and compensatory and punitive damages. *fn8
On June 6, 1975, appellant moved to dismiss the claims for injunctive and declaratory relief on terms the parties had previously stipulated. *fn9 The District Court, in an order dated June 30, 1975, granted that motion and further ordered that, for the monetary consideration agreed to by the parties, appellant's damage claims be dismissed with prejudice. *fn10 Shortly thereafter, on July 10, appellant moved to vacate the dismissal order, stating that the motion requesting it had been filed without her knowledge or assent. *fn11 The record does not reflect a ruling on this motion.
However, on October 31, 1975, appellees moved to enforce a settlement agreement allegedly entered into with appellant on March 17. *fn12 Appellees stated that appellant had repudiated their earlier monetary settlement and had refused to execute releases. *fn13 The District Court, on February 27, 1976, granted this motion as to injunctive and declaratory relief, and denied it as to damages. *fn14 Appellant filed a notice of appeal *fn15 but apparently abandoned it.
More than a year later, on September 8, 1977, appellant filed what was termed a "supplemental complaint." *fn16 In addition to the allegations set forth in the 1973 complaint, the supplemental complaint charged that, as part of a continuing course of misconduct by the Police Department, appellant had been stopped, harassed, and physically and verbally abused on December 10, 1975. *fn17 On September 26, 1978, the District Court sua sponte dismissed this complaint without prejudice for failure to prosecute. *fn18 Appellant's subsequent motions for reconsideration of that dismissal were denied by the court. *fn19
Undaunted, the appellant filed a new suit, Civil Action No. 79-1917, on March 29, 1979. *fn20 Following the District Court's order for briefing on the question whether further pursuit of the cause of action was foreclosed by the statute of limitations, *fn21 on May 29, 1979, the court dismissed the action as so barred. *fn22 It is an appeal from this dismissal that is now before us.
Appellant argues that, under District of Columbia law, statutes of limitation are suspended during pendency of an action subsequently involuntarily dismissed, and that the District Court therefore erred in not excluding from its computation of the limitation period the time during which the first lawsuit remained on the court's docket. *fn23 We believe appellant has misapprehended the substantive District of Columbia law on this point, and accordingly we affirm the order under review. II
The question, then, is whether appellant's initial action, which as to damages ultimately was involuntarily dismissed without prejudice, tolled the running of the statute of limitations while it remained pending. The parties say unanimously that District of Columbia law controls, and we approach the problem on that basis. *fn24 The issue presented, however, has not yet been resolved by the District of Columbia courts; *fn25 indeed, decision thereon has specifically been reserved by the District of Columbia Court of Appeals. *fn26 Our task is thus to decide the question as we believe those courts would.
As enunciated by the Supreme Court, the general rule on the subject is that "if a plaintiff mistakes his remedy, in the absence of any statutory provisions saving his rights, or where from any cause ... the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred." *fn27 So pervasive is this principle *fn28 that the District of Columbia courts presumably would adopt it; that would dictate that there be no tolling in the instant situation. Appellant urges, however, that the rule is discretionary, and therefore need not govern the question of tolling when dismissal of the earlier action was involuntary. *fn29
As we have noted, the courts of the District of Columbia have not yet ruled definitively on this issue. The District of Columbia Court of Appeals, however, has considered the question of tolling in a slightly different context. In York & York Construction Co. v. Alexander, *fn30 that court held that the pendency of an action voluntarily dismissed without prejudice does not interrupt the running of the statute of limitations. *fn31 In so concluding, the York Court cited both the Supreme Court opinion quoted above and several opinions from federal courts of appeals. *fn32 Because the court relied upon these cases without further discussion, it is to them that we must now look for guidance in resolving the question presented on this appeal.
Each of those cases held, as did the York Court, that a statute of limitations is not tolled during pendency of an action voluntarily dismissed without prejudice. *fn33 Without exception, the decisions cited by York reasoned that a dismissal without prejudice does not operate as an adjudication upon the merits, and thus leaves the situation the same as if suit had never been brought. *fn34 In effect, therefore, there was nothing to suspend the operation of the limitation period. Thus, as the Sixth Circuit has aptly declared, "(in) the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action ... dismissed (without prejudice) was pending." *fn35
The District Court for the Middle District of Pennsylvania, adopting this reasoning, held in DiSabatino v. Mertz *fn36 that the Pennsylvania statute of limitations for personal injury actions was not tolled during pendency of an earlier action involuntarily dismissed for lack of venue. *fn37 The DiSabatino court emphasized, not that the dismissal was involuntary, but rather that it was without prejudice, and therefore did not operate as an adjudication upon the merits. *fn38 We think the court identified the crucial consideration, and that the pivotal question is whether the dismissal was with or without prejudice, not whether it was voluntary or involuntary.
We conclude, then, that the rule against tolling set forth by the District of Columbia Court of Appeals in York *fn39 applies with equal force to non-prejudicial dismissals, be they voluntary or involuntary. We therefore hold, as we believe the District of Columbia courts would hold, that under District of Columbia law the pendency of an action involuntarily dismissed without prejudice does not operate to toll the running of the statute of limitations. In the case at bar, whatever the limitation period applicable, *fn40 it was not arrested during pendency of appellant's first action which was involuntarily dismissed without prejudice for want of prosecution. Because the complaint in the instant case was not filed until March 29, 1979, more than three years-the outermost limit *fn41 -after the last wrongful act alleged, *fn42 the action was barred by the statute, *fn43 and the order of the District Court dismissing it is accordingly
APPELLATE PANEL: FOOTNOTES
* Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Chief Judge ROBINSON.