UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) HENRY MELARA, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-00994 (ESH) ) CHINA NORTH INDUSTRIES ) CORPORATION, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

This case comes before the Court after eight years of litigation between plaintiff Henry

Melara and defendant China North Industries Corporation (“Norinco”), a state-owned company

based in the People’s Republic of China. Plaintiff’s first complaint was filed in federal court in

2001, but dismissed in 2003 for failure to prosecute. See Hernandez v. Norinco N. China Indus.

Corp. (“Melara I”), Civ. No. 01-1071, slip op. (D.D.C. Dec. 8, 2003) (Def. Mot. to Dismiss, Ex.

2). Plaintiff’s second complaint, the pending action, was filed in the Superior Court for the

District of Columbia in 2005 and removed to federal court in 2009. Before the Court is

defendant’s motion for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. For the reasons stated herein, defendant’s motion will be granted.

BACKGROUND

On May 17, 2000, plaintiff’s mother, Eva Hernandez, was shot and killed with an assault weapon allegedly manufactured by defendant.1 (Compl. ¶¶ 16-20, Notice of Removal, Ex. 1

[Dkt. #1].) In May 2001, plaintiff, as personal representative for the deceased, filed a complaint

in the federal district court for the District of Columbia. See Complaint, Melara I., Civ. No. 01-

1071 (D.D.C. May 15, 2001).2 Plaintiff made several attempts to serve defendant before

discovering, in spring 2003, that it was necessary to serve a version of the complaint translated

into Mandarin. (Pl.’s Opp. to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) [Dkt. #7] at 5 & Ex. E.)

Judge Kollar-Kotelly of this Court, to whom the prior case was assigned, set a deadline of

October 31, 2003, for serving defendant. Melara I, slip op. at 3. The Court granted one request

by plaintiff to extend the deadline to December 8, 2003. (Pl.’s Opp’n at 5.) After plaintiff failed

to meet this deadline, the Court dismissed plaintiff’s suit without prejudice for failure to

prosecute his claim. Melara I, Civ. No. 01-1071, slip op. (D.D.C. Dec. 8, 2003).

The Court in Melara I held that it was not “powerless to let the case wither on the docket

when a plaintiff fails to serve a foreign Defendant[,]” observing that plaintiff’s counsel

“knowingly sued a Chinese corporation” and “reasonably could have anticipated” that delays

would occur. Melara I, slip op. at 3-4. It further found that the “primary source of delay” was

“wrangling between [p]laintiff and [p]laintiffs’ counsel” over the costs of translation, and that the

“problems in effecting service stem[med] from [p]laintiffs’ own failure to ascertain what would

1 In summarizing the relevant proceedings, several of the pleadings and judicial opinions that defendant has filed as exhibits are important. The Court will therefore take judicial notice of Exhibit 1 to defendant’s Notice of Removal and Exhibits 1-2 to defendant’s Motion to Dismiss, which are public records. See, e.g., Rogers v. Johnson-Norman,

, 165 n.3 (D.D.C. 2006) (taking judicial notice of public records submitted as exhibits by the defendant as part of a motion to dismiss). 2 The caption for the first action differs from the present action because plaintiff filed under the name “Henri Hernandez” and named the defendant as “Norinco Northern China Industries Corp.” A second plaintiff in Melara I, Ramon Arismende, who also filed as a personal representative for the deceased, subsequently left the country and is not a party to the present action.

2 be needed to serve a Chinese manufacturer.” Id. at 4. Noting the “ample opportunities” it had

given plaintiff to “perfect service,” the Court held that dismissal without prejudice pursuant to

Rule 41(b) was appropriate. Id. at 4-5. Plaintiff appealed this decision to the Court of Appeals,

which affirmed. Hernandez v. Norinco N. China Indus., Inc.,

(D.C. Cir.

2005) (per curiam).3

On April 6, 2005, plaintiff filed this action in Superior Court for the District of Columbia.

(Notice of Removal, Ex. 1 [Dkt. #1]) In his complaint, he alleged six violations of D.C. statutory

or common law against Norinco and two other defendants – KSI and China Sports Inc. (Id.

Compl. ¶¶ 34-67.) On June 29, 2005, the Clerk of the District of Columbia Superior Court

dismissed plaintiff’s complaint as to all three defendants under Rule 4(m) of the Superior Court

Rules of Civil Procedure. (See Dkt. #3-2, at 114-15.) The dismissal was vacated only as to

Norinco, because Rule 4(m) does not apply to service in a foreign country. (Id.) Several more

attempts at service failed for reasons ranging from failing to pay proper fees to using the wrong

name for the defendant. (Pl.’s Opp’n, Exs. F-I.) On April 30, 2009, more than four years after

filing for the second time and almost nine years after his cause of action arose, plaintiff was

finally successful in his effort to serve defendant. (Notice of Removal, Ex. 1.) On May 27,

2009, defendant removed the lawsuit from D.C. Superior Court to this Court on diversity

grounds. (Notice of Removal at 3.) Defendant now moves to dismiss plaintiff’s claims for

failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure

12(b)(6).

3 The Court of Appeals referred to defendant as “Norinco Northern China Industries Inc.,” rather than “Norinco Northern China Industries Corp.”

3 ANALYSIS

I. STATUTE OF LIMITATIONS

Defendant argues that the statute of limitations bars all of plaintiff’s claims. In the

District of Columbia, the statute of limitations for a wrongful death claim is one year.

. The statute of limitations on other tort claims that have accrued to the “legal

representative of the deceased,”

, is three years.

(8).

Plaintiff admits that Ms. Hernandez was killed on May 17, 2000. (Pl.’s Opp’n at 2.) His

pending complaint was not filed until April 7, 2005. Thus, plaintiff’s wrongful death claim was

filed almost four years too late and his remaining claims, all of which are brought in his capacity

as legal representative of the deceased, were filed nearly two years after the statute of limitations

expired. In response, and noting that his first complaint was timely filed and dismissed without

prejudice in December 2003, plaintiff argues that the doctrines of equitable tolling and equitable

estoppel should “intervene” and prevent the statute of limitations from barring his claims. (Id. at

8.)

II. EQUITABLE RELIEF

“In evaluating a claim for equitable relief from a statute of limitations, [the Court] must

be careful to distinguish between the two primary tolling doctrines.” Chung v. U.S. Dep’t of

Justice,

(D.C. Cir. 2003). Equitable tolling allows courts to apply statutes of

limitations “only where the purposes underlying them are met – specifically, avoiding stale

claims and ensuring the other party's ability adequately to prepare and defend the case.” Sayyad

v. Fawzi,

(D.C. 1998). Equitable estoppel is a “general equity principle” that

applies where the defendant has taken “‘active steps to prevent the plaintiff from suing in time.’”

4 East v. Graphic Arts Indus. Joint Pension Trust,

, 160 n.21 (D.C. 1998) (quoting

Cada v. Baxter Healthcare Corp.,

(7th Cir. 1990)).

A. Equitable Tolling

Plaintiff mistakenly focuses on the way courts apply the equitable tolling doctrine under

federal law, when in fact it is D.C. law that controls here. “Except in matters governed by the

Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the

state.” Novak v. Capital Mgmt. & Dev. Corp.,

(D.C. Cir. 2007) (quoting Erie

R.R. Co. v. Tompkins,

(1938)). Because the Erie doctrine applies to the District

of Columbia, substantive D.C. law controls in a diversity case,

and this Court will apply D.C.

law regarding equitable tolling. See Jankovic v. Int’l Crisis Group,

(D.C. Cir. 2007) (applying D.C. law of equitable tolling in diversity action).4

Although the “federal statutes of limitations are generally subject to equitable principles

of tolling,” Rotella v. Wood,

(2000), “District of Columbia law does not

contemplate the invocation of equitable tolling in response to the assertion of the limitations

defense following a dismissal without prejudice.” Sayyad,

-06 (citing Dupree v.

Jefferson,

(D.C. Cir. 1981)) (refusing to toll the statute of limitations where

plaintiff “failed properly to serve the defendants in the case”). This rule of D.C. law applies even

where “in individual cases, the rationale for the limitations doctrine will not be served, and a

dismissal would frustrate the well-established preference for adjudicating cases on their merits.”

4 Though plaintiff cites to federal law in supporting his motion (Pl.’s Opp’n at 10-11), he does not dispute defendant’s application of D.C. law and actually cites it himself. (See, e.g., Pl.’s Opp’n at 11 (citing D.C. precedent on the wrongful death statute).)

5 Id. at 906. Thus, plaintiff cannot assert an equitable tolling defense based on the timely filing of

a claim that was later dismissed without prejudice.5

B. Equitable Estoppel

Collateral estoppel bars plaintiff from arguing that defendant should be equitably

estopped from asserting the statute of limitations (Pl.’s Opp’n at 15-17) and from challenging

Melara I and the dismissal without prejudice of his original claim. (Id. at 18-34.) The District of

Columbia bars relitigation “(1) [of an] identical issue (2) that was fully and fairly litigated and

(3) determined by a valid judgment on the merits (4) in which the issue was essential.” Rogers v.

Johnson-Norman,

(D.D.C. 2006) (quoting Bryson v. Gere,

(D.D.C. 2003)).6 It is clear that plaintiff’s argument is founded on an issue that

was fully and fairly litigated in Melara I, i.e., plaintiff’s fault in the failure to effect timely

service on Norinco. Melara I dismissed plaintiff’s prior suit without prejudice for “failure to

effect service ‘within a specified time’ and for “failure of the plaintiff to prosecute.” Hernandez,

5 Plaintiff’s assertions that he was not at fault for failing to serve process and his references to the “extraordinary circumstances” involved in delivering his complaint to a Chinese corporation (Pl.’s Opp’n at 13) imply that the Court should apply the “extraordinary-circumstances variation” of equitable tolling. See Doe v. Exxon Mobil Corp.,

(D.D.C. 2008) (noting application of equitable tolling doctrine where “extraordinary circumstances prevented the plaintiff from filing despite his or her diligence”). Of course, as the Court noted in Exxon Mobil Corp., the courts of the District of Columbia have never directly addressed this exception.

In any case, this Court would be collaterally estopped from applying it. See infra Part II.B. 6 Although it is “unclear” whether the law of collateral estoppel is procedural or substantive for the purposes of applying federal or D.C. law, the rules of each jurisdiction are “substantially similar.” Bryson,

. The extra consideration required under federal law – whether applying collateral estoppel would “work a basic unfairness” – “would not affect its application in this case.”

Plaintiff had “ample opportunity” to argue that the statute of limitations should have been waived during the litigation of his initial claim; “[a]ccordingly, there is no ‘basic unfairness’ in barring relitigation.” See Rogers, 462 F. Supp. 2d at 169; Bryson,

.

6

(quoting Fed. R. Civ. P. 4(m) & 41(b)). This valid judgment on the merits

was affirmed by the D.C. Circuit.

Plaintiff’s responsibility for failing to serve Norinco was

an essential issue in this determination: “the Court finds that Plaintiffs’ problems in effecting

service stem from Plaintiffs’ own failure to ascertain what would be needed to serve a Chinese

manufacturer.” Melara I, at 4. The heart of plaintiff’s argument that defendant should be

equitably estopped from asserting the statute of limitations is that his failure to effect service

should be excused as the fault of defendant. This very claim was rejected by Judge Kollar-

Kotelly in 2003, and as a matter of law, it cannot be raised again under the doctrine of collateral

estoppel. Therefore, he cannot assert a claim for equitable relief on this basis.

CONCLUSION

The claims in plaintiff’s complaint were not brought within the applicable statute of

limitations periods, and, therefore, the complaint will be dismissed pursuant to Rule 12(b)(6).7

Defendant’s motion to dismiss will be GRANTED and the above-captioned action will be

dismissed with prejudice. A separate Order accompanies this Memorandum Opinion.

/s/_____________ ELLEN SEGAL HUVELLE United States District Judge

Date: September 30, 2009

7 The conduct of defendant in the years after the Court’s opinion in Melara I is not relevant. Three and a half years passed between the time plaintiff’s cause of action accrued and the dismissal of his case. Since a claim that is involuntarily dismissed without prejudice does not toll the statute of limitations under D.C. law, plaintiff’s claims were, in effect, barred by the statute of limitations immediately upon dismissal. “In short, when a suit is dismissed without prejudice, the statute of limitations is deemed unaffected by the filing of the suit, so that if the statute of limitations has run the dismissal is effectively with prejudice.” Ciralsky v. CIA,

(D.C. Cir. 2004) (quoting Elmore v. Henderson,

(7th Cir. 2000)).

7