Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. The state court did not lose jurisdiction and indeed there is nothing in the state court record no order no notation not even a motion from the defense suggesting that the state had lost jurisdiction. Defendants challenge to Miss Rice's case filed in the federal district court relies on Virginia's rule of procedure three colon five E which rule of procedure was codified at 8.012751 but in the federal district court the federal rules of civil procedure apply and federal law applies as the United States Supreme Court explained in the case of Green and Goose which we cited in our reply brief. Federal rule of civil procedure 81C makes it very clear

. Could you speak up just a little I just want to make sure I hear you. Okay. Sorry you're quite. Thank you federal rule of civil procedure 81C also by its plain language makes it clear that in the federal district court the federal rules of civil procedure apply and the Green and Goose case cites that and says that federal law and federal civil procedure apply after removal

. Accordingly for defendants to move based on state procedure is inappropriate they really have waived their opportunity to seek dismissal in the federal court based on a state rule of procedure. Well except you don't mean to suggest to you that post removal a defendant couldn't move for insufficient process or insufficiency of service of process do you. They can move for that but it then in that instance if the district court finds that there was deficient service the plaintiff would have a right under 28 USC 1448 to reserve and federal rule for him. Of course so my point is simply that I guess I'm focused on what I regard as something of an over broad statement by you just now to the effect as I understand it that once removal occurs state rules of procedure are irrelevant because in the case that I put to you whether there was effective service would be determined under state rules for service of process

. Right. That's true your honor but but to apply the federal for the federal court to apply the the Virginia rules of procedure as was done in this case I think is is what I'm taking issue with. Okay. It's well I'm trying to understand the difference between what you agree to namely that a challenge to sufficiency of service post removal would lie for a defendant relying on state law as opposed to what you can tend here if I understand it is that once the case was removed again this is not I don't mean to suggest you absolutely mean this but it's almost like you're saying rules under the bit under the Virginia practice are irrelevant I don't think they're irrelevant

. I don't think you're really saying that. They're not entirely irrelevant your honor but I think the important issue here is that judge Lee erroneously found that based on a Virginia rule of procedure the court lacked jurisdiction. Now can I explore that with you for a second when you say lacked jurisdiction I take it you're using that term as a shorthand for this rather curious term of jurisprudential death. Judge Lee that was judge Lee used the term that it found that he had no jurisdiction because the case he found was jurisprudentially dead on arrival

. So which means it was jurisprudentially dead before it left Virginia. Well right it didn't die on the way but if it's dead it didn't die on the way it died while it was still in Virginia and that's what you mean by Virginia lost jurisdiction in other words there was there was nothing there was nothing there to remove in effect. That's what the defense is arguing that the Virginia court lost jurisdiction and that could only be well lost jurisdiction again I'm sorry but Virginia didn't lose jurisdiction. No sir they did not always had jurisdiction over this kind of action

. Question is whether the case came to an end. Isn't that really the question? Not whether the Commonwealth lost jurisdiction whether the case ended. Well there's no question the case didn't end. The the state court speaks for itself to the Joint Appendix on page eight in its final order when it says that this case is quote removed and stricken from the act of docket of this court

. Sometime before you affected service. There is no that's after that that's the final order of the Virginia court because of the removal judge judge Lee in effect in effect was sitting as a judge of a state court wasn't he? He was in effect but just to correct the record Judge Davis this final order is dated September 19th and it is the final order noticing that the notice of removal had been filed. So it is the final word of the state court that because of the removal and only because of the removal. The date of removal again the actual just the exact date

. The date of removal was September 13th it arrived in the year 2012 and I think Judge Davis you're really hitting on this that that there's nothing in the record to suggest that the Virginia State court lost jurisdiction. The court never even squeaked a possibility of that. The defense we submit to deprive us from among other things the opportunity to file a lawsuit and the opportunity to have a hearing had we so chosen where in which the state court would have exercised discretion. The worst possible situation for the plaintiff in the state court is the defense would make a motion to dismiss based on a ferry to serve within one year

. The discretion is based upon a due diligence on your part and I don't understand there to be any kind of claim that due diligence was exercised. It is not based just on due diligence and the fri case your honor squarely addresses that in that case the plaintiff waited until the 365th day to appear at the courthouse and request of summons finding the courthouse closed and even though there was no showing at all from that plaintiff that there was a single attempt before the 365th day the Virginia Supreme Court read the one-year service rule in conjunction with the computation of time and said the plaintiff should have the 365 days no showing of due diligence. You'd rather dramatically distinguish that case from this one. It seems if the courthouse is closed on the last day and the plaintiff can't get the summons obviously the plaintiff can't serve the summons on the last day. Exactly so judge and that's not this case. Well it is this case to the extent that the plaintiff had non-suited her case for 17 days and the defense concedes as it must that the plaintiff could not have obtained a summons during those 17 days so that why did you move to vacate the non-suited? I mean why not just recommence the action within what is it six months of the non-suited order I mean it seems to me you've created problems for yourself that that you didn't need you you by moving to vacate the non-suited you ran into this service of process problem and that might have been avoided all together had you simply sort of taken them simply recommence the action within the six months of the non-suited order rather than seeking to vacate the non-su. We did that your honor because defense counsel called me you moved to vacate the non-suited. This is the reason we moved to vacate which I believe was your question

. Exactly so judge and that's not this case. Well it is this case to the extent that the plaintiff had non-suited her case for 17 days and the defense concedes as it must that the plaintiff could not have obtained a summons during those 17 days so that why did you move to vacate the non-suited? I mean why not just recommence the action within what is it six months of the non-suited order I mean it seems to me you've created problems for yourself that that you didn't need you you by moving to vacate the non-suited you ran into this service of process problem and that might have been avoided all together had you simply sort of taken them simply recommence the action within the six months of the non-suited order rather than seeking to vacate the non-su. We did that your honor because defense counsel called me you moved to vacate the non-suited. This is the reason we moved to vacate which I believe was your question. We did that because after the court vacated after the court entered the non-suited but before 21 days had expired defense counsel called and made an argument to me that were we to refile our statute limitations would be blown and you were profited by that. Defense counsel made it and out you were persuaded. Well I'll tell you that this is exactly what happened out in abundance of caution we did some research and we we it's very short we had only a few days left so we vacated and upon consideration standing here today that was probably unnecessary. It was unnecessary because we could could non-suited but in the heat of I'm sorry

. We did that because after the court vacated after the court entered the non-suited but before 21 days had expired defense counsel called and made an argument to me that were we to refile our statute limitations would be blown and you were profited by that. Defense counsel made it and out you were persuaded. Well I'll tell you that this is exactly what happened out in abundance of caution we did some research and we we it's very short we had only a few days left so we vacated and upon consideration standing here today that was probably unnecessary. It was unnecessary because we could could non-suited but in the heat of I'm sorry. Yes sir. So was it in his interest of his client to help you keep a suit alive against his client? Probably not but that's in fact what happened. How would you take their advice to do that? Well I can't say why he did it your honor but it'll be inappropriate for him to give you something that'll help keep your his client in court by good as if if you run into a cliff and by client benefits from your fall and over it long as it legal I'm not supposed to stop and say look out one more step you're on the cliff you pose a going over there so why would you do that? I don't understand that. You know you give us a little bit more

. Yes sir. So was it in his interest of his client to help you keep a suit alive against his client? Probably not but that's in fact what happened. How would you take their advice to do that? Well I can't say why he did it your honor but it'll be inappropriate for him to give you something that'll help keep your his client in court by good as if if you run into a cliff and by client benefits from your fall and over it long as it legal I'm not supposed to stop and say look out one more step you're on the cliff you pose a going over there so why would you do that? I don't understand that. You know you give us a little bit more. You have a junior lawyer you know that it's the vein of the existence of the defense bar and the glory of the plaintiffs body to have non-su Virginia's wonder if the only state like that you can't get cause assessed against you I've had it done against me it looked at the jury didn't like with the jury look like they said non-su you're right it's a very powerful weapon for the plaintiff six months on the end of the statute whichever is the great her. This way your honor we reserved our rights and we decided that it was the best strategic maneuver because we wanted to have an opportunity to look at the defendant's argument a little bit more and we still have the non-suit we haven't really lost anything so. I've done all that without moving to vacate the non-suit except as I'm explaining the court would have lost jurisdiction within 21 days we wanted to vacate the non-suit so that we could have a little time to do some more research upon further reflection it was unnecessary we could have non-suited and refiled but in that would have been a more precise way in a cleaner procedural way it would have and I submit that that's exactly why the defendant removed us because they didn't want us to be able to do that I mean we were very cautious and we did what we think what we thought was right under the circumstances still having the right to take a non-su. The strength of your argument you've continued that on the day the suit was removed to federal court the suit had not been dismissed in state court

. You have a junior lawyer you know that it's the vein of the existence of the defense bar and the glory of the plaintiffs body to have non-su Virginia's wonder if the only state like that you can't get cause assessed against you I've had it done against me it looked at the jury didn't like with the jury look like they said non-su you're right it's a very powerful weapon for the plaintiff six months on the end of the statute whichever is the great her. This way your honor we reserved our rights and we decided that it was the best strategic maneuver because we wanted to have an opportunity to look at the defendant's argument a little bit more and we still have the non-suit we haven't really lost anything so. I've done all that without moving to vacate the non-suit except as I'm explaining the court would have lost jurisdiction within 21 days we wanted to vacate the non-suit so that we could have a little time to do some more research upon further reflection it was unnecessary we could have non-suited and refiled but in that would have been a more precise way in a cleaner procedural way it would have and I submit that that's exactly why the defendant removed us because they didn't want us to be able to do that I mean we were very cautious and we did what we think what we thought was right under the circumstances still having the right to take a non-su. The strength of your argument you've continued that on the day the suit was removed to federal court the suit had not been dismissed in state court. Is that correct? No question had not been about jurisdiction the case had not been dismissed. It was a live in kickin we had a motion to amend the complaint on for the next day. Now let me have things that the state court could have done it rule later but we don't know what they would have done or could have done because it's removed. Correct

. Is that correct? No question had not been about jurisdiction the case had not been dismissed. It was a live in kickin we had a motion to amend the complaint on for the next day. Now let me have things that the state court could have done it rule later but we don't know what they would have done or could have done because it's removed. Correct. So at your point is that you still had those arrows in your quiver and that is non-suited the suiting all those kind of things which you didn't do. Absolutely and that it was air. Assuming the removal was proper and I've seen no indication that from you that the removal was improper the district court has to decide what the state court would have done and I think here since the procedural question I don't think Judge Davis is right on the point I don't think state law becomes irrelevant at this point because the whole procedural question was was born and growing to maturity within the state court system. I think it would not show that federal rules of service or process just take over I think that the procedural history of the case in state court can't be ignored

. So at your point is that you still had those arrows in your quiver and that is non-suited the suiting all those kind of things which you didn't do. Absolutely and that it was air. Assuming the removal was proper and I've seen no indication that from you that the removal was improper the district court has to decide what the state court would have done and I think here since the procedural question I don't think Judge Davis is right on the point I don't think state law becomes irrelevant at this point because the whole procedural question was was born and growing to maturity within the state court system. I think it would not show that federal rules of service or process just take over I think that the procedural history of the case in state court can't be ignored. I think the federal rules do take over and but too for many purposes they would for summary judgment they would for a good many purposes but here the the whole case was litigated extensively under state procedure and state law and you know that's different from the way the federal rules of evidence kick you in and it's different from the way a summary judgment motion is decided and everything the state the case for whatever reason was was litigated under state rules of procedure and I don't think we are just free to ignore that because that's what you have governed by at the time. We would absolutely have been governed by state procedures had we stayed in state court I think to answer what I'm hearing as your question Judge Wilkinson is was it Judge Lee's job to sit in the shoes of a state court and decide what a state court would have done and our answer is no not to the extent there was any discretion afforded a state judge all of the defense case I'm so glad to hear you say that could you elaborate because that's exactly my question I think you agreed earlier that a state judge would have had a broad discretion whether to dismiss your case or not yes with or without prejudice to the extent that Virginia recognizes any such thing and yet you just said to Judge Wilkinson if I'm following you that Judge Lee though he sits as a state judge on this motion to dismiss doesn't have the discretion that the state judge would have had and I find that very difficult to comprehend I think if have I correctly well I give an account of of your position he I think in interpreting and looking at the applicability of state procedural rules Judge Lee had the job of deciding whether it was mandatory whether there was no circumstance by which Miss Rice could have continued in the state court so to that extent to that if if Judge Lee erroneously thought he had no discretion but to dismiss the case then you're here on legal error and we apply a De Novo standard of review right but but if he if he understood or if we're persuaded that he understood that he had the discretion whether to to dismiss the case or keep the case in federal court then is do you agree that our standard review is abuse of discretion no and why not what so so Judge Lee has less discretion to dismiss the case than a state judge would have had under exactly the same circumstance how can that be because he's well first of all Judge Lee found that dismissal was mandatory okay so we'll put that to one side for a moment how can Judge Lee have less discretion than a state judge because he's applying state procedural rules in a federal case and it's just a matter I think it's a matter of federalism because it's a title seven case well because of the motor toward because he's in federal court and and I think I think Judge Lee in some parts of his opinion he he said he has to find out whether the state court had to dismiss the case and he found that in his opinion so I think even he understood that he was discretion to the extent that if there's due diligence in trying to serve process or the defendant then there there's discretion on the part of the state court judge to find a due diligence but I understand if you haven't raised a due diligence claim here you haven't said something like well we really tried to find these defendants we couldn't exactly serve them or we had problems finding out the address of this or that person that we made in a attempt but it didn't work out there was no there was no claim along that you've got to ask you know what would the discretion can join and normally when you have these with with respect to time bars and we we have this and filing notices of appeal and everything we have an excusable neglect standard in the due diligence formulation is sort of a parallel to an excusable neglect standard and but there wasn't and that's what discretion is when you fail to meet a time deadline is there some reason but the only reason that you've given us was that the defense council said something and you sort of took their work for and that wouldn't have afforded a state judge or the district court in this case the the kind of that kind of discretion you haven't you you haven't made the case that the district court should exercise discretion in your favor that's the problem you're on our I see that my time is is up may may I certainly are I be happy to answer it now whatever we're going to answer it now but I think I think the Collins versus Shepherd case the rudder versus living centers of Virginia and the Friday case all stand for the proposition that the state court in Virginia has discretion to consider factors other than just due diligence that there has to be a hearing to consider all of the facts and circumstances and I submit that it is within the equitable power of the state court in Virginia to consider all of what happened here including the 17 days where this plaintiff by definition could not have obtained a summons and would have been impossible to serve the defendant so that the state court could balance the policies and objectives of the one-year service rule with the non-suit statute and the facts here it would be unfair and inappropriate and an absurd conclusion like the Friday case found to allow the plaintiff to perfect service as we did as the defense admits but that it's going to be dismissed because it's untimely so on the facts of this particular case the state court would have had the discretion thank you Josh we've got some rebuttal time coming to you as well all right let's hear from the other side in this case thank you your honor Douglas Meister on behalf of Appellee Co-Appellee off of security and if you curious I'm not the counsel that was involved in that discussion about the with that was Mr. Robinson with Mr. Kelly I have one maybe two issues like to focus on in my time can I actually run really quick question I really wanted to ask Mr

. I think the federal rules do take over and but too for many purposes they would for summary judgment they would for a good many purposes but here the the whole case was litigated extensively under state procedure and state law and you know that's different from the way the federal rules of evidence kick you in and it's different from the way a summary judgment motion is decided and everything the state the case for whatever reason was was litigated under state rules of procedure and I don't think we are just free to ignore that because that's what you have governed by at the time. We would absolutely have been governed by state procedures had we stayed in state court I think to answer what I'm hearing as your question Judge Wilkinson is was it Judge Lee's job to sit in the shoes of a state court and decide what a state court would have done and our answer is no not to the extent there was any discretion afforded a state judge all of the defense case I'm so glad to hear you say that could you elaborate because that's exactly my question I think you agreed earlier that a state judge would have had a broad discretion whether to dismiss your case or not yes with or without prejudice to the extent that Virginia recognizes any such thing and yet you just said to Judge Wilkinson if I'm following you that Judge Lee though he sits as a state judge on this motion to dismiss doesn't have the discretion that the state judge would have had and I find that very difficult to comprehend I think if have I correctly well I give an account of of your position he I think in interpreting and looking at the applicability of state procedural rules Judge Lee had the job of deciding whether it was mandatory whether there was no circumstance by which Miss Rice could have continued in the state court so to that extent to that if if Judge Lee erroneously thought he had no discretion but to dismiss the case then you're here on legal error and we apply a De Novo standard of review right but but if he if he understood or if we're persuaded that he understood that he had the discretion whether to to dismiss the case or keep the case in federal court then is do you agree that our standard review is abuse of discretion no and why not what so so Judge Lee has less discretion to dismiss the case than a state judge would have had under exactly the same circumstance how can that be because he's well first of all Judge Lee found that dismissal was mandatory okay so we'll put that to one side for a moment how can Judge Lee have less discretion than a state judge because he's applying state procedural rules in a federal case and it's just a matter I think it's a matter of federalism because it's a title seven case well because of the motor toward because he's in federal court and and I think I think Judge Lee in some parts of his opinion he he said he has to find out whether the state court had to dismiss the case and he found that in his opinion so I think even he understood that he was discretion to the extent that if there's due diligence in trying to serve process or the defendant then there there's discretion on the part of the state court judge to find a due diligence but I understand if you haven't raised a due diligence claim here you haven't said something like well we really tried to find these defendants we couldn't exactly serve them or we had problems finding out the address of this or that person that we made in a attempt but it didn't work out there was no there was no claim along that you've got to ask you know what would the discretion can join and normally when you have these with with respect to time bars and we we have this and filing notices of appeal and everything we have an excusable neglect standard in the due diligence formulation is sort of a parallel to an excusable neglect standard and but there wasn't and that's what discretion is when you fail to meet a time deadline is there some reason but the only reason that you've given us was that the defense council said something and you sort of took their work for and that wouldn't have afforded a state judge or the district court in this case the the kind of that kind of discretion you haven't you you haven't made the case that the district court should exercise discretion in your favor that's the problem you're on our I see that my time is is up may may I certainly are I be happy to answer it now whatever we're going to answer it now but I think I think the Collins versus Shepherd case the rudder versus living centers of Virginia and the Friday case all stand for the proposition that the state court in Virginia has discretion to consider factors other than just due diligence that there has to be a hearing to consider all of the facts and circumstances and I submit that it is within the equitable power of the state court in Virginia to consider all of what happened here including the 17 days where this plaintiff by definition could not have obtained a summons and would have been impossible to serve the defendant so that the state court could balance the policies and objectives of the one-year service rule with the non-suit statute and the facts here it would be unfair and inappropriate and an absurd conclusion like the Friday case found to allow the plaintiff to perfect service as we did as the defense admits but that it's going to be dismissed because it's untimely so on the facts of this particular case the state court would have had the discretion thank you Josh we've got some rebuttal time coming to you as well all right let's hear from the other side in this case thank you your honor Douglas Meister on behalf of Appellee Co-Appellee off of security and if you curious I'm not the counsel that was involved in that discussion about the with that was Mr. Robinson with Mr. Kelly I have one maybe two issues like to focus on in my time can I actually run really quick question I really wanted to ask Mr. Kelly if no no I'm talking to counsel I'm sorry if one of her points is that they couldn't obtain a summons during the period of the non-suit correct my question and she can answer later if she'd obtained the summons say a week before the non-suit would that argument remain the same does the summons a bait or die with the falling of a non-suit or could you could you serve a defendant doing period of non-suit if you already have no reason why not absolutely okay thank I didn't want to take up any more we've got here the argument falls back on does the appellant have or should have been afforded on 120 days under 1448 to make proper service timely service as in an original case in the district court that really doesn't matter anymore because the appellant didn't that was never preserved for argument here because the appellant never did try to serve well I don't know if they tried and didn't find us but certainly original service has not been made during that 120 day period there's no way to fix that unless there's no certain hasn't been made under the federal road there's certainly no federal statute that allows her an additional time outside of 120 days well state procedures already said that it's got to be filed within a year it's out of a year there's no dispute that it's outside of a calendar year I mean they're absolutely none now the appellant argues that it should be told for various reasons which I'll leave to our briefing unless you have questions but the regardless of whether we decide federal state procedure applies it's outside the time absolutely and that's through no fall to the plaintiffs the appellant has twice exceeded the filing period and not filed timely you mean no fall to the defend through no I'm sorry no fall to defend its appellees here there's no way to fix this this is procedurally dead unfortunately well depending on the side run it wasn't I mean a year is a very long time for service of process have most fake rules have a year but no not at all it is a very long time it's a very generous time limit I mean it's not not asking the impossible of a plaintiff to serve process within one year I mean that's one of the most as I think it's one of the most generous time limits in any of the space isn't it yes and this just when you talk about excusing it and everything you have to take into account that you had one year to do it that's as of what is it three times as long or four times as long as the federal rules allow 120 days is three months that's four times as long it's not a hard thing to do not only was it not hard once the plan the plaintiff below decided to serve us they did it in one day one they they came to us in one day and we are resident agents were not available the next day when our residents agents were available they made service but but the district court didn't dismiss the case on the basis of the 120-day federal staff no because in fact as of coincidence as of the day the district court actually heard second set of arguments January 11th that was still timely for service so now let's take that aside I want well taken to that I want 120 days let's put that aside for a second the reason that the district court gave was that the case was already I call it a dead letter but a dead case when it when it got here that seems to just that court is clearly saying that I'm not looking at whether or not I should look at diligence or whatever I can't it was dead isn't that wrong though I don't believe that's quite what was the court did say it was juristic jurist potentially dead okay well we don't know just potential me but we know it dead me so let's deal with dead I believe he said it was dead so but it's that's not correct or is it it would it's anticipatory it's dead in the sense that a Virginia judge who would be given this set of facts would rule that it is outside a calendar year and can't be revived so judge Lee killed it he then went on to consideration of due diligence as to whether or not there was due diligence in the inexercise of discretion that might have saved the case under Virginia law and he found there was not what if it was a fatal complete for the state court why would the court grant the vacature of the nonsense we had not been served we don't know we have no idea what arguments were presented that was suggested the court thought that it was something to continue on otherwise you wouldn't grant it because the court knew then that they were at the one day left point there and that so 364 weighed that law and you can improve diligence you're not going to be able to prove one day more so that would have suggested the state court would have done different because it gave her a new breath of freedom if you were I don't see how it gave her any freedom except for that one last day so you would but then that's what what the one last day what then if it's told for 17 days didn't they do that at one last day because if 31st would have been that one day because what the last day it was the it was the anti-ultimate day right so so then when once the toll is there then we don't believe it's told we don't believe it told anything well how could statue you don't think it did no absolutely not there's nothing in in Virginia law that says filing a non-suit tolls the time in which a non-suit or an then vacating it tolls the time in which a non-suit may be served and you could have gotten an answer to that question from a Virginia judge if you hadn't removed the case there's no difference in applying a judge Lee applying Virginia law then there is then a Virginia state judge that judge Lee is judge Lee and a Virginia judge is a Virginia judge is every difference in the world I'm not suggesting the outcome should be the same but my point I think you know my point my it's simply that from a strategic tactical perspective I don't know what's going on here I was surprised to hear that there had been conversations between council I don't know if that's in the record but I was surprised to hear that this morning but in any event a defendant who chooses to remove a case the federal court has made an option to get a decision from federal judge reviewed by this court as opposed to a decision by Virginia judge reviewed by the Virginia Court of Appeals and perhaps the Virginia Supreme Court I don't I don't think this issue is is is complicated and requires extensive knowledge of Virginia law from a former civil procedure professor this is very complicated thank you very much anything else yes you got no go ahead sit down good may I please the court I'm Steve Robinson and together with my associate Nick San Felipe we represent budget motels and waterloo hospitality which for purposes of argument will refer to as as budget motels I think what's important first of all to go back to address some of the concerns the court has is to look at the calendar the counters and the brief but I would like to just give the court three or four dates to consider first of all this case was filed on August 15th 2011 the 89th day under the 90 days from a right to sue letter issued by the E.R.C. on August 3rd well within the one year period of time in which service could be affected the plaintiff files an unopposed motion in Fairfax for an on-suit unopposed because the defendants hadn't been served not because both because would have made any difference correct yes by right by right and as your honor notes I I've sat there and watched the motion to strike evaporate as the plaintiff gets up and says we're taking a non-suit thank you very much so rather than do what frankly I think would be logical to get back to Judge Davis's point if you found a motion for a non-suit on August 3rd why aren't you getting a summons and going and serving I don't know the answer to that but frankly had that happen we wouldn't have been here today but what happens instead is Judge rash enters the order on August 14th a non-suit order unopposed the plaintiff then realizes and again in all candor with the court it was a conversation with me because I called the plaintiff's counsel this is not the record but I'm happy to share because I think there's some interest in it what you find out about the case your honor we monitor the case of the Fairfax regularly of course you do sure I mean you know Fairfax in those days was in the beginnings of their electronic dockening system and frankly we had a paralegal who went by you know probably once a month so you get a lot of business well we knew the case well maybe not a lot of we we you're honor we knew the case was coming because we'd represent the defendant's administrative situation and frankly we were counting the days on the right to sue and frankly we only followed the dock it in the federal court it never occurred us until several months after the case was filed in the circuit court of Fairfax that that indeed was where this court was going to have jurisdiction because you feel had a right to service with process absolutely exactly that's exactly right so when the plaintiff goes ahead on on the 16th or 17th day on August 30th and again unopposed as judge Gregory probably knows calendar control and Fairfax a 30 in morning you walk in your honor I want an order judge signs the order there's the judge doesn't have the file in front of himself or herself under the plaintiff's theory the case is now active on August 30th that is the last day to serve if this that told it even if there is tolling it's the last day to serve because I don't understand that well you're honor the original lawsuit was filed on August 15th 2011 okay non-soot order entered August 14th 2012 okay I see one day left so in August 30th is tolling the 14 or 17 days or whatever doesn't make any death doesn't make any I mean again is and we've argued in our brief and I think the district judge correctly found and again as you all know judge Lee had the benefit of sitting on the bench and Fairfax for about 10 years so they was again just finished Judge Davis answer but it's quickly what's the date that the picture was entered it was August 30th your honor okay that's my thought and and if you look you look in the in the joint of clinics like I'm gonna give you the site if the court wants it you look and you see there's a handwritten notation to the court and Fairfax at 938 am on that day to issue summons so on the last day that service could be made the plaintiff got her summons it yeah wouldn't be the last day to serve would be August 31st your honor with all due respect it wouldn't be why not because she had one day left when the non-suit was entered that's right okay on August 30th the case is now back on the docket to use the plaintiff's phrase it has to be live and kicking because otherwise they couldn't have gotten a summons but but but it's back on the docket but the date now is as if it was August 14th I think your honor it would be August 15th why because the case was non-suited on the 14th it was an active case through the 14th I mean theoretically to get back to Judge Davis's yeah but that but that's see that would be the same thing if there was her last day if it was her last day she got the non-suit then the day it is vacated would be the same day now she has to serve but when you have one more day then you have to have one more day after it is vacated which would be the 31st how would that not be your honor I think the reason it wouldn't be is because the case was in existence on August 14th because it was not dismissed until that day so it was again to go back to the appellance phrase it was alive and kicking on the 14th so they had one day left I agree right the day that right exactly one day left all right in August 30th again because the non-suited order has been vacated put back on the docket correct so that's the more day so that's the equivalent of August 15th because the case was alive on the 14th your honor I see okay I don't okay I see all right Judge Gregory's got the better of the argument if if the if the non-suited is entered on the 14 and vacated on the 30th then the 30th becomes the virtual 14 and so the 31st becomes the virtual 15 right and frankly we need not very better physical well it is very much your honor and with all due respect to obviously I think the case can't be alive but the 364th day can't be both the 14th and the 30th which I think with all due respect would be the circumstance under the argument that your honors are positive because the case did exist on the 14th that's day 364 everybody agrees with that the case ended on day 364 because the non-suited was taken so then we have the cases back let me just by helping real quick yes sir if the 14th of August was the last day right okay and if in fact it was vacated as it was on the 30 what would be the date last day to file then I don't think there would be a last day that's the other way you say you don't you continue couldn't even do it that day that's correct well that's correct your honor I don't see how that could be all right well nevertheless again I don't think that's an issue the court needs to to reach because as the district court correctly found there clearly was in essence no effect for the non-su because as we cited in our papers and nobody really seems to debate that in fact the the appellant in her argument also agrees if you look at her argument before the district court if you vacate the non-suited order it deprived the non-suited order of any effect that's correct your honor and if it would leave the I mean it would leave would that leave the time period continuous yes sir your honor and if you look we don't need to get into this whether there's one day or not because if you vacate the order to the non-su it's as if the non-su never happen that's correct your honor if you look at page 85 of the joint appendix in the colloquy with the district court judge Lee asked quote tell me what your view is of the word vacate what does vacate mean to you Miss Kelly well that other order doesn't have any effect and we are just back like we were before and then she mean continuing effect I don't know what you meant you're on I'm you know I always tell witnesses in deposition say can't tell me what other people thought and I'm not about to do that here is that it what's the what's the case law that supports judge Lee's interpretation of of vacate the vacate wipes out the whole period of non-su your honor we have we have cited a series of cases in our but there's no specific holding by a Virginia that's correct there absolutely is not there there is generally gotten such a holding if you wanted to stay in Virginia well let me address that question your honor because then maybe that's a little bit of the elephant room this was a title seven case a title seven case that when suit was filed the operative events were now five years old obviously a lengthy period of time witnesses move they die they forget things serious restrictions on taking out of state depositions and discovery in the Virginia State Court again as as you all know there's no rule 56 or anything close to that in a Virginia State Court in fact it's just the opposite depositions cannot be used in a summary judgment motion played any deposition really any depositions so the situation that we had was number one it's a title seven case it's been around for a long time number two with all due respect to the bench and Fairfax they don't see many title seven cases we wanted to judge who was familiar with the case law number three we would have been severely procedurally handled or hampered rather by the lack of ability to take broader discovery and frankly fourth summary judgment probably would never would have been a possibility and again as your honors know from sitting on this court a lot of employment cases go on summary judgment I think there's a real question here is the well of state or federal procedure even applies because I mean that that in itself is a bit of a difficult question and so I'm not but I'm not sure we need to resolve it if it's untimely under either law the the question I look at is this bears on the equitable toe and the plane here had a long amount of time to perform a almost immaterial function perfectly straightforward function which is simply the serve process it's not an archaing plane it's a part of every single lawsuit it wasn't done until after a year after filing in Virginia it wasn't done until I wasn't done within 120 days in federal court and there's no you know there's no attempt here to establish one of these procedural tripwriters or to have plaintiff's case thrown out of court on as a result of being blindsided by some kind of a rule it ought to be a matter of second nature to simply serve process give the opposing party notice of someone's in complaint and people do that simply as a matter of course when something is this file and when you look at the extraordinary delay the question is you know should we bend over backwards or or try to work things around to the salvage something that I don't think was litigated in the way that it really should have been and it almost encourages an absence of some kind of precision or due diligence in courts low when we when we do it this all of it could have been avoided difficulty is the plaintiff is creative problems for herself unfortunately but that's what's happened when you look at it as a whole that's certainly been the defendant's position all along is the courts well aware the Virginia post statutes and rules make it clear that no judgment can be entered in a case in which the complaint has not been served in a year absent in order from the court finding the due diligence occurred there's not even attempt argue the due diligence occurred here and my time's running out I'll be happy to answer any questions but you would be happy that if you file within one year being 364th day due diligence has nothing to do with it 364 would be okay because you'd be with any year right that's what I'm saying so but but so due diligence really almost as a red hairing in a sense in terms of that's the point is the argument is that it was filed timely because their argument is that there was there was a tolling and that was timely their argument is premised on the 17 or 16 days depending on how you count exactly not having any impact which would mean the order vacating the non-suit was annulity which again I'm out of time and I don't want to press my luck with the court but I think we've cited the the decisions in our brief and arrest on our brief on that issue I'll be happy to answer any other questions that the court we have the the vacator of the vacator of the non-suit was entered correct yes sir thank you on our I'd like to just address a couple of the points that seem to be of concern judge Wilkinson I understand that you are concerned about the long period of time that a plane of has served in Virginia the 120 days well well because judge Lee denied their their motion let's don't forget about that you would you denied their motion and and therefore we expected we were going to be able to proceed but he took until December to change his mind so we wouldn't serve if their motion had been denied and there was no need 1448 says if service has been found effective we have the right to reserve and I think the real issue is getting lost here the only thing that judge already ruling your favor in our favor correct judge Lee initially denied their motions so you have a reason for not filing 120 days yes sir so this is a digital stop if you are your judges are stopped from from from claiming you have to do something that court made to think that he was ruling for your favor right and defense never raised that below but as a matter of fact judge Lee had denied their motions but I think the real fundamental issue is was the case alive when it arrived and you don't have to accept any tolling argument to find that it was Fairfax record says it was and the very fact that we could have taken a non-suit if the non-suit order was vacated then by definition we still had a non-suit as a matter of right and there is no question that under controlling Virginia Supreme Court law we could take a non-suit even after the expiration of the one year even after the one year for service expires as generous as that is that's the holiday situation you're relying on no I'm not relying on waterman versus Halverson and Barry versus FNS financial marketing Virginia Supreme Court cases where the court rejected defendant's argument that they had a right to a dismissal that there was no jurisdiction and is there any limit on the number of non-suits the under the Virginia Code plaintive has one non-suit as a matter of right which we still had by virtue of the vacation of that order and we may have additional ones in the discretion of the court right so by vacate it by being vacated you still had to one by right right that's really all that that that we have to show to prove under Virginia law this case was alive there are under Virginia law under controlling unquestionable Virginia law we could get lost into who could have and would have done what and that's what I meant by it was inappropriate for Judge Lee to step in those shoes really Judge Lee just has to say is this case alive I see it is alive and because Judge Lee can't grant a non-suit well he can but he can give you all kinds of time to fix things it was the defendant's choice to remove and they really should not be heard to complain about the plaintiffs right if service was found defective you're arguing this is as though this is a defendant's fault and you know that the defendants were aware of this we don't need to worry about service of process or it's defendant's fault to remove they have a perfect right to these things they have a perfect right to service of process they have a perfect right to remove the removal statutes give them that right and then what federal judge may decide on the state law all the time although it's not clear to me that state procedures still governed because I mean it's you know it's basic horn book law that federal procedure governs removed cases in state court just because it's removed it doesn't it doesn't mean necessarily that the federal that state procedure continues to to prevail I'm not at all sure that the federal rules don't don't control here the thing is in federal court and and even if it did it only as a protective matter you would think that you would serve within a hundred and you'd serve problems needed to arise it has been made vastly more complicated by the fact that someone didn't even take the rudimentary step and either state or federal court of clearly serving process within one year which isn't hard to do not at all I understand your honors comments but you know the Virginia the Virginia legislature made that balance in allowing the plaintiff the right to one year and the right to a non-suit why didn't you serve process why did you move to vacate the non-suit I don't understand any of it I don't understand why you didn't serve process in a way that would be timely I don't understand why you move to vacate the the non-suit well I've explained why we moved to vacate the non-suit and it was probably unnecessary but we still have our non-suit as a matter of right which means the case was alive as the Virginia legislature must have anticipated sometimes things happen in the course of a year 90 days is a quick statute limitations we met that everybody conceives that I was local counsel and there are a number of events that just took place and and I was doing an amended motion for judgment I'm allowed to rely just as the defense judge will consent completely respect and agree I understand I believe your point the defense has a right to remove well we have a right to wait at an entire year if we want to we have a right to take a non-suit if we want to we still have that right to take a non-suit you know that raises the question is whether the effect of the vacator and the effect of vacator is to make the non-suit order a nullity which means we could have taken it again and the throw the the filing date of August 31st passed the one year period I don't think it's a matter of 14 or 15 days I mean we can't change the whole notion of the of what a vacator represents and what the effect of it is but you don't even need to reach that the fact that the plaintiff had a right to keep her suit alive in Virginia means it arrived alive in judge please and your court is that Collins v

. Kelly if no no I'm talking to counsel I'm sorry if one of her points is that they couldn't obtain a summons during the period of the non-suit correct my question and she can answer later if she'd obtained the summons say a week before the non-suit would that argument remain the same does the summons a bait or die with the falling of a non-suit or could you could you serve a defendant doing period of non-suit if you already have no reason why not absolutely okay thank I didn't want to take up any more we've got here the argument falls back on does the appellant have or should have been afforded on 120 days under 1448 to make proper service timely service as in an original case in the district court that really doesn't matter anymore because the appellant didn't that was never preserved for argument here because the appellant never did try to serve well I don't know if they tried and didn't find us but certainly original service has not been made during that 120 day period there's no way to fix that unless there's no certain hasn't been made under the federal road there's certainly no federal statute that allows her an additional time outside of 120 days well state procedures already said that it's got to be filed within a year it's out of a year there's no dispute that it's outside of a calendar year I mean they're absolutely none now the appellant argues that it should be told for various reasons which I'll leave to our briefing unless you have questions but the regardless of whether we decide federal state procedure applies it's outside the time absolutely and that's through no fall to the plaintiffs the appellant has twice exceeded the filing period and not filed timely you mean no fall to the defend through no I'm sorry no fall to defend its appellees here there's no way to fix this this is procedurally dead unfortunately well depending on the side run it wasn't I mean a year is a very long time for service of process have most fake rules have a year but no not at all it is a very long time it's a very generous time limit I mean it's not not asking the impossible of a plaintiff to serve process within one year I mean that's one of the most as I think it's one of the most generous time limits in any of the space isn't it yes and this just when you talk about excusing it and everything you have to take into account that you had one year to do it that's as of what is it three times as long or four times as long as the federal rules allow 120 days is three months that's four times as long it's not a hard thing to do not only was it not hard once the plan the plaintiff below decided to serve us they did it in one day one they they came to us in one day and we are resident agents were not available the next day when our residents agents were available they made service but but the district court didn't dismiss the case on the basis of the 120-day federal staff no because in fact as of coincidence as of the day the district court actually heard second set of arguments January 11th that was still timely for service so now let's take that aside I want well taken to that I want 120 days let's put that aside for a second the reason that the district court gave was that the case was already I call it a dead letter but a dead case when it when it got here that seems to just that court is clearly saying that I'm not looking at whether or not I should look at diligence or whatever I can't it was dead isn't that wrong though I don't believe that's quite what was the court did say it was juristic jurist potentially dead okay well we don't know just potential me but we know it dead me so let's deal with dead I believe he said it was dead so but it's that's not correct or is it it would it's anticipatory it's dead in the sense that a Virginia judge who would be given this set of facts would rule that it is outside a calendar year and can't be revived so judge Lee killed it he then went on to consideration of due diligence as to whether or not there was due diligence in the inexercise of discretion that might have saved the case under Virginia law and he found there was not what if it was a fatal complete for the state court why would the court grant the vacature of the nonsense we had not been served we don't know we have no idea what arguments were presented that was suggested the court thought that it was something to continue on otherwise you wouldn't grant it because the court knew then that they were at the one day left point there and that so 364 weighed that law and you can improve diligence you're not going to be able to prove one day more so that would have suggested the state court would have done different because it gave her a new breath of freedom if you were I don't see how it gave her any freedom except for that one last day so you would but then that's what what the one last day what then if it's told for 17 days didn't they do that at one last day because if 31st would have been that one day because what the last day it was the it was the anti-ultimate day right so so then when once the toll is there then we don't believe it's told we don't believe it told anything well how could statue you don't think it did no absolutely not there's nothing in in Virginia law that says filing a non-suit tolls the time in which a non-suit or an then vacating it tolls the time in which a non-suit may be served and you could have gotten an answer to that question from a Virginia judge if you hadn't removed the case there's no difference in applying a judge Lee applying Virginia law then there is then a Virginia state judge that judge Lee is judge Lee and a Virginia judge is a Virginia judge is every difference in the world I'm not suggesting the outcome should be the same but my point I think you know my point my it's simply that from a strategic tactical perspective I don't know what's going on here I was surprised to hear that there had been conversations between council I don't know if that's in the record but I was surprised to hear that this morning but in any event a defendant who chooses to remove a case the federal court has made an option to get a decision from federal judge reviewed by this court as opposed to a decision by Virginia judge reviewed by the Virginia Court of Appeals and perhaps the Virginia Supreme Court I don't I don't think this issue is is is complicated and requires extensive knowledge of Virginia law from a former civil procedure professor this is very complicated thank you very much anything else yes you got no go ahead sit down good may I please the court I'm Steve Robinson and together with my associate Nick San Felipe we represent budget motels and waterloo hospitality which for purposes of argument will refer to as as budget motels I think what's important first of all to go back to address some of the concerns the court has is to look at the calendar the counters and the brief but I would like to just give the court three or four dates to consider first of all this case was filed on August 15th 2011 the 89th day under the 90 days from a right to sue letter issued by the E.R.C. on August 3rd well within the one year period of time in which service could be affected the plaintiff files an unopposed motion in Fairfax for an on-suit unopposed because the defendants hadn't been served not because both because would have made any difference correct yes by right by right and as your honor notes I I've sat there and watched the motion to strike evaporate as the plaintiff gets up and says we're taking a non-suit thank you very much so rather than do what frankly I think would be logical to get back to Judge Davis's point if you found a motion for a non-suit on August 3rd why aren't you getting a summons and going and serving I don't know the answer to that but frankly had that happen we wouldn't have been here today but what happens instead is Judge rash enters the order on August 14th a non-suit order unopposed the plaintiff then realizes and again in all candor with the court it was a conversation with me because I called the plaintiff's counsel this is not the record but I'm happy to share because I think there's some interest in it what you find out about the case your honor we monitor the case of the Fairfax regularly of course you do sure I mean you know Fairfax in those days was in the beginnings of their electronic dockening system and frankly we had a paralegal who went by you know probably once a month so you get a lot of business well we knew the case well maybe not a lot of we we you're honor we knew the case was coming because we'd represent the defendant's administrative situation and frankly we were counting the days on the right to sue and frankly we only followed the dock it in the federal court it never occurred us until several months after the case was filed in the circuit court of Fairfax that that indeed was where this court was going to have jurisdiction because you feel had a right to service with process absolutely exactly that's exactly right so when the plaintiff goes ahead on on the 16th or 17th day on August 30th and again unopposed as judge Gregory probably knows calendar control and Fairfax a 30 in morning you walk in your honor I want an order judge signs the order there's the judge doesn't have the file in front of himself or herself under the plaintiff's theory the case is now active on August 30th that is the last day to serve if this that told it even if there is tolling it's the last day to serve because I don't understand that well you're honor the original lawsuit was filed on August 15th 2011 okay non-soot order entered August 14th 2012 okay I see one day left so in August 30th is tolling the 14 or 17 days or whatever doesn't make any death doesn't make any I mean again is and we've argued in our brief and I think the district judge correctly found and again as you all know judge Lee had the benefit of sitting on the bench and Fairfax for about 10 years so they was again just finished Judge Davis answer but it's quickly what's the date that the picture was entered it was August 30th your honor okay that's my thought and and if you look you look in the in the joint of clinics like I'm gonna give you the site if the court wants it you look and you see there's a handwritten notation to the court and Fairfax at 938 am on that day to issue summons so on the last day that service could be made the plaintiff got her summons it yeah wouldn't be the last day to serve would be August 31st your honor with all due respect it wouldn't be why not because she had one day left when the non-suit was entered that's right okay on August 30th the case is now back on the docket to use the plaintiff's phrase it has to be live and kicking because otherwise they couldn't have gotten a summons but but but it's back on the docket but the date now is as if it was August 14th I think your honor it would be August 15th why because the case was non-suited on the 14th it was an active case through the 14th I mean theoretically to get back to Judge Davis's yeah but that but that's see that would be the same thing if there was her last day if it was her last day she got the non-suit then the day it is vacated would be the same day now she has to serve but when you have one more day then you have to have one more day after it is vacated which would be the 31st how would that not be your honor I think the reason it wouldn't be is because the case was in existence on August 14th because it was not dismissed until that day so it was again to go back to the appellance phrase it was alive and kicking on the 14th so they had one day left I agree right the day that right exactly one day left all right in August 30th again because the non-suited order has been vacated put back on the docket correct so that's the more day so that's the equivalent of August 15th because the case was alive on the 14th your honor I see okay I don't okay I see all right Judge Gregory's got the better of the argument if if the if the non-suited is entered on the 14 and vacated on the 30th then the 30th becomes the virtual 14 and so the 31st becomes the virtual 15 right and frankly we need not very better physical well it is very much your honor and with all due respect to obviously I think the case can't be alive but the 364th day can't be both the 14th and the 30th which I think with all due respect would be the circumstance under the argument that your honors are positive because the case did exist on the 14th that's day 364 everybody agrees with that the case ended on day 364 because the non-suited was taken so then we have the cases back let me just by helping real quick yes sir if the 14th of August was the last day right okay and if in fact it was vacated as it was on the 30 what would be the date last day to file then I don't think there would be a last day that's the other way you say you don't you continue couldn't even do it that day that's correct well that's correct your honor I don't see how that could be all right well nevertheless again I don't think that's an issue the court needs to to reach because as the district court correctly found there clearly was in essence no effect for the non-su because as we cited in our papers and nobody really seems to debate that in fact the the appellant in her argument also agrees if you look at her argument before the district court if you vacate the non-suited order it deprived the non-suited order of any effect that's correct your honor and if it would leave the I mean it would leave would that leave the time period continuous yes sir your honor and if you look we don't need to get into this whether there's one day or not because if you vacate the order to the non-su it's as if the non-su never happen that's correct your honor if you look at page 85 of the joint appendix in the colloquy with the district court judge Lee asked quote tell me what your view is of the word vacate what does vacate mean to you Miss Kelly well that other order doesn't have any effect and we are just back like we were before and then she mean continuing effect I don't know what you meant you're on I'm you know I always tell witnesses in deposition say can't tell me what other people thought and I'm not about to do that here is that it what's the what's the case law that supports judge Lee's interpretation of of vacate the vacate wipes out the whole period of non-su your honor we have we have cited a series of cases in our but there's no specific holding by a Virginia that's correct there absolutely is not there there is generally gotten such a holding if you wanted to stay in Virginia well let me address that question your honor because then maybe that's a little bit of the elephant room this was a title seven case a title seven case that when suit was filed the operative events were now five years old obviously a lengthy period of time witnesses move they die they forget things serious restrictions on taking out of state depositions and discovery in the Virginia State Court again as as you all know there's no rule 56 or anything close to that in a Virginia State Court in fact it's just the opposite depositions cannot be used in a summary judgment motion played any deposition really any depositions so the situation that we had was number one it's a title seven case it's been around for a long time number two with all due respect to the bench and Fairfax they don't see many title seven cases we wanted to judge who was familiar with the case law number three we would have been severely procedurally handled or hampered rather by the lack of ability to take broader discovery and frankly fourth summary judgment probably would never would have been a possibility and again as your honors know from sitting on this court a lot of employment cases go on summary judgment I think there's a real question here is the well of state or federal procedure even applies because I mean that that in itself is a bit of a difficult question and so I'm not but I'm not sure we need to resolve it if it's untimely under either law the the question I look at is this bears on the equitable toe and the plane here had a long amount of time to perform a almost immaterial function perfectly straightforward function which is simply the serve process it's not an archaing plane it's a part of every single lawsuit it wasn't done until after a year after filing in Virginia it wasn't done until I wasn't done within 120 days in federal court and there's no you know there's no attempt here to establish one of these procedural tripwriters or to have plaintiff's case thrown out of court on as a result of being blindsided by some kind of a rule it ought to be a matter of second nature to simply serve process give the opposing party notice of someone's in complaint and people do that simply as a matter of course when something is this file and when you look at the extraordinary delay the question is you know should we bend over backwards or or try to work things around to the salvage something that I don't think was litigated in the way that it really should have been and it almost encourages an absence of some kind of precision or due diligence in courts low when we when we do it this all of it could have been avoided difficulty is the plaintiff is creative problems for herself unfortunately but that's what's happened when you look at it as a whole that's certainly been the defendant's position all along is the courts well aware the Virginia post statutes and rules make it clear that no judgment can be entered in a case in which the complaint has not been served in a year absent in order from the court finding the due diligence occurred there's not even attempt argue the due diligence occurred here and my time's running out I'll be happy to answer any questions but you would be happy that if you file within one year being 364th day due diligence has nothing to do with it 364 would be okay because you'd be with any year right that's what I'm saying so but but so due diligence really almost as a red hairing in a sense in terms of that's the point is the argument is that it was filed timely because their argument is that there was there was a tolling and that was timely their argument is premised on the 17 or 16 days depending on how you count exactly not having any impact which would mean the order vacating the non-suit was annulity which again I'm out of time and I don't want to press my luck with the court but I think we've cited the the decisions in our brief and arrest on our brief on that issue I'll be happy to answer any other questions that the court we have the the vacator of the vacator of the non-suit was entered correct yes sir thank you on our I'd like to just address a couple of the points that seem to be of concern judge Wilkinson I understand that you are concerned about the long period of time that a plane of has served in Virginia the 120 days well well because judge Lee denied their their motion let's don't forget about that you would you denied their motion and and therefore we expected we were going to be able to proceed but he took until December to change his mind so we wouldn't serve if their motion had been denied and there was no need 1448 says if service has been found effective we have the right to reserve and I think the real issue is getting lost here the only thing that judge already ruling your favor in our favor correct judge Lee initially denied their motions so you have a reason for not filing 120 days yes sir so this is a digital stop if you are your judges are stopped from from from claiming you have to do something that court made to think that he was ruling for your favor right and defense never raised that below but as a matter of fact judge Lee had denied their motions but I think the real fundamental issue is was the case alive when it arrived and you don't have to accept any tolling argument to find that it was Fairfax record says it was and the very fact that we could have taken a non-suit if the non-suit order was vacated then by definition we still had a non-suit as a matter of right and there is no question that under controlling Virginia Supreme Court law we could take a non-suit even after the expiration of the one year even after the one year for service expires as generous as that is that's the holiday situation you're relying on no I'm not relying on waterman versus Halverson and Barry versus FNS financial marketing Virginia Supreme Court cases where the court rejected defendant's argument that they had a right to a dismissal that there was no jurisdiction and is there any limit on the number of non-suits the under the Virginia Code plaintive has one non-suit as a matter of right which we still had by virtue of the vacation of that order and we may have additional ones in the discretion of the court right so by vacate it by being vacated you still had to one by right right that's really all that that that we have to show to prove under Virginia law this case was alive there are under Virginia law under controlling unquestionable Virginia law we could get lost into who could have and would have done what and that's what I meant by it was inappropriate for Judge Lee to step in those shoes really Judge Lee just has to say is this case alive I see it is alive and because Judge Lee can't grant a non-suit well he can but he can give you all kinds of time to fix things it was the defendant's choice to remove and they really should not be heard to complain about the plaintiffs right if service was found defective you're arguing this is as though this is a defendant's fault and you know that the defendants were aware of this we don't need to worry about service of process or it's defendant's fault to remove they have a perfect right to these things they have a perfect right to service of process they have a perfect right to remove the removal statutes give them that right and then what federal judge may decide on the state law all the time although it's not clear to me that state procedures still governed because I mean it's you know it's basic horn book law that federal procedure governs removed cases in state court just because it's removed it doesn't it doesn't mean necessarily that the federal that state procedure continues to to prevail I'm not at all sure that the federal rules don't don't control here the thing is in federal court and and even if it did it only as a protective matter you would think that you would serve within a hundred and you'd serve problems needed to arise it has been made vastly more complicated by the fact that someone didn't even take the rudimentary step and either state or federal court of clearly serving process within one year which isn't hard to do not at all I understand your honors comments but you know the Virginia the Virginia legislature made that balance in allowing the plaintiff the right to one year and the right to a non-suit why didn't you serve process why did you move to vacate the non-suit I don't understand any of it I don't understand why you didn't serve process in a way that would be timely I don't understand why you move to vacate the the non-suit well I've explained why we moved to vacate the non-suit and it was probably unnecessary but we still have our non-suit as a matter of right which means the case was alive as the Virginia legislature must have anticipated sometimes things happen in the course of a year 90 days is a quick statute limitations we met that everybody conceives that I was local counsel and there are a number of events that just took place and and I was doing an amended motion for judgment I'm allowed to rely just as the defense judge will consent completely respect and agree I understand I believe your point the defense has a right to remove well we have a right to wait at an entire year if we want to we have a right to take a non-suit if we want to we still have that right to take a non-suit you know that raises the question is whether the effect of the vacator and the effect of vacator is to make the non-suit order a nullity which means we could have taken it again and the throw the the filing date of August 31st passed the one year period I don't think it's a matter of 14 or 15 days I mean we can't change the whole notion of the of what a vacator represents and what the effect of it is but you don't even need to reach that the fact that the plaintiff had a right to keep her suit alive in Virginia means it arrived alive in judge please and your court is that Collins v. Shepherd and Barry are the two cases on which you rely well Collin Collins and Rudder show that the state court has discretion and fry that it's not just due diligence that there's the balancing of Virginia statutes but my point is you could have obtained even had you not serve process yes on August 31st yes and assuming the case was not removed on September 13th or whenever was you could have sought and obtained a non-suit in September October or November of 2012 absolutely and last the court had already dismissed it obviously but yes the Barry case the waterman and the reason for that in whole or in part is exactly because you got a vacator of the original non-suit correct correct so we had it as a matter of right we still had a non-suit because the first one didn't count it was vacated it didn't exist anymore we could also even if it did count have possibly gotten the second one as a matter of discretion but we still had one as a matter of right and we still could have taken it even after the expiration of the one-year service rule theory and waterman cases well we'd like the benefit of either the state as it stands here the defense wins we are denied all our basic powerful procedural options as a matter of right that we had in state court and now we're left with none in federal court because they chose to remove us quickly without asking for the state court to interpret its own procedural rules that's not fair and the Brazil case the only case that I've been able to locate from this court they don't have noted I'm sorry there's no there's no law of removal this is defendants have to ask for this state court ruling or that state court ruling before they remove you don't have to do that you can remove the case if it happens sometimes within a day you don't have to sit there and ask the state judge for ruling you don't but they chose not even think it applies that they chose to remove it when they did and and they removed a live case plan of could have kept it alive and that's really the only question before this court judge Lee was wrong and remind us why I have my red light judge me I sure that's just what it's been enormously generous today as you all saw and and and that's a good thing but why did judge Lee get it so wrong if it's so obvious just let me finish if it's so obvious as you say it is and now it appears that you're right that you you could have taken a non-suit had the case remained in in in in state court regardless of whether and when you serve process how did judge Lee get that so wrong I can't speak for judge Lee his opinion is conflicting literally in different parts of it in one part of his opinion he says the vacation of the non-suit order brings it back exactly to the status quo ante and then later he seems to have some doubt as to whether the plaintiff could take the non-suit how that doubt came about what he's talking about he cited no statute he sounded no law and I don't know why he had any doubt that was part of the reason we appealed it we think it really is plain wrong are there any other questions that I could ask answer you real a adjourn court this honorable court said the journey to tomorrow morning at 9.30 I see you've done a station this honorable court

health security and Scali. Good morning, Your Honours. Mary Ann Kelly and together with Dennis Chong, we represent the plaintiff below in this Title 7 action, Jacqueline Rice. In a nutshell, the issue before the court this morning is did the state court lose jurisdiction over Miss Rice's Title 7 action before the defendants removed it to federal court such that it arrived that that it was dead on arrival in the district court. We submit the answer to that question is a resounding no. The state court did not lose jurisdiction and indeed there is nothing in the state court record no order no notation not even a motion from the defense suggesting that the state had lost jurisdiction. Defendants challenge to Miss Rice's case filed in the federal district court relies on Virginia's rule of procedure three colon five E which rule of procedure was codified at 8.012751 but in the federal district court the federal rules of civil procedure apply and federal law applies as the United States Supreme Court explained in the case of Green and Goose which we cited in our reply brief. Federal rule of civil procedure 81C makes it very clear. Could you speak up just a little I just want to make sure I hear you. Okay. Sorry you're quite. Thank you federal rule of civil procedure 81C also by its plain language makes it clear that in the federal district court the federal rules of civil procedure apply and the Green and Goose case cites that and says that federal law and federal civil procedure apply after removal. Accordingly for defendants to move based on state procedure is inappropriate they really have waived their opportunity to seek dismissal in the federal court based on a state rule of procedure. Well except you don't mean to suggest to you that post removal a defendant couldn't move for insufficient process or insufficiency of service of process do you. They can move for that but it then in that instance if the district court finds that there was deficient service the plaintiff would have a right under 28 USC 1448 to reserve and federal rule for him. Of course so my point is simply that I guess I'm focused on what I regard as something of an over broad statement by you just now to the effect as I understand it that once removal occurs state rules of procedure are irrelevant because in the case that I put to you whether there was effective service would be determined under state rules for service of process. Right. That's true your honor but but to apply the federal for the federal court to apply the the Virginia rules of procedure as was done in this case I think is is what I'm taking issue with. Okay. It's well I'm trying to understand the difference between what you agree to namely that a challenge to sufficiency of service post removal would lie for a defendant relying on state law as opposed to what you can tend here if I understand it is that once the case was removed again this is not I don't mean to suggest you absolutely mean this but it's almost like you're saying rules under the bit under the Virginia practice are irrelevant I don't think they're irrelevant. I don't think you're really saying that. They're not entirely irrelevant your honor but I think the important issue here is that judge Lee erroneously found that based on a Virginia rule of procedure the court lacked jurisdiction. Now can I explore that with you for a second when you say lacked jurisdiction I take it you're using that term as a shorthand for this rather curious term of jurisprudential death. Judge Lee that was judge Lee used the term that it found that he had no jurisdiction because the case he found was jurisprudentially dead on arrival. So which means it was jurisprudentially dead before it left Virginia. Well right it didn't die on the way but if it's dead it didn't die on the way it died while it was still in Virginia and that's what you mean by Virginia lost jurisdiction in other words there was there was nothing there was nothing there to remove in effect. That's what the defense is arguing that the Virginia court lost jurisdiction and that could only be well lost jurisdiction again I'm sorry but Virginia didn't lose jurisdiction. No sir they did not always had jurisdiction over this kind of action. Question is whether the case came to an end. Isn't that really the question? Not whether the Commonwealth lost jurisdiction whether the case ended. Well there's no question the case didn't end. The the state court speaks for itself to the Joint Appendix on page eight in its final order when it says that this case is quote removed and stricken from the act of docket of this court. Sometime before you affected service. There is no that's after that that's the final order of the Virginia court because of the removal judge judge Lee in effect in effect was sitting as a judge of a state court wasn't he? He was in effect but just to correct the record Judge Davis this final order is dated September 19th and it is the final order noticing that the notice of removal had been filed. So it is the final word of the state court that because of the removal and only because of the removal. The date of removal again the actual just the exact date. The date of removal was September 13th it arrived in the year 2012 and I think Judge Davis you're really hitting on this that that there's nothing in the record to suggest that the Virginia State court lost jurisdiction. The court never even squeaked a possibility of that. The defense we submit to deprive us from among other things the opportunity to file a lawsuit and the opportunity to have a hearing had we so chosen where in which the state court would have exercised discretion. The worst possible situation for the plaintiff in the state court is the defense would make a motion to dismiss based on a ferry to serve within one year. The discretion is based upon a due diligence on your part and I don't understand there to be any kind of claim that due diligence was exercised. It is not based just on due diligence and the fri case your honor squarely addresses that in that case the plaintiff waited until the 365th day to appear at the courthouse and request of summons finding the courthouse closed and even though there was no showing at all from that plaintiff that there was a single attempt before the 365th day the Virginia Supreme Court read the one-year service rule in conjunction with the computation of time and said the plaintiff should have the 365 days no showing of due diligence. You'd rather dramatically distinguish that case from this one. It seems if the courthouse is closed on the last day and the plaintiff can't get the summons obviously the plaintiff can't serve the summons on the last day. Exactly so judge and that's not this case. Well it is this case to the extent that the plaintiff had non-suited her case for 17 days and the defense concedes as it must that the plaintiff could not have obtained a summons during those 17 days so that why did you move to vacate the non-suited? I mean why not just recommence the action within what is it six months of the non-suited order I mean it seems to me you've created problems for yourself that that you didn't need you you by moving to vacate the non-suited you ran into this service of process problem and that might have been avoided all together had you simply sort of taken them simply recommence the action within the six months of the non-suited order rather than seeking to vacate the non-su. We did that your honor because defense counsel called me you moved to vacate the non-suited. This is the reason we moved to vacate which I believe was your question. We did that because after the court vacated after the court entered the non-suited but before 21 days had expired defense counsel called and made an argument to me that were we to refile our statute limitations would be blown and you were profited by that. Defense counsel made it and out you were persuaded. Well I'll tell you that this is exactly what happened out in abundance of caution we did some research and we we it's very short we had only a few days left so we vacated and upon consideration standing here today that was probably unnecessary. It was unnecessary because we could could non-suited but in the heat of I'm sorry. Yes sir. So was it in his interest of his client to help you keep a suit alive against his client? Probably not but that's in fact what happened. How would you take their advice to do that? Well I can't say why he did it your honor but it'll be inappropriate for him to give you something that'll help keep your his client in court by good as if if you run into a cliff and by client benefits from your fall and over it long as it legal I'm not supposed to stop and say look out one more step you're on the cliff you pose a going over there so why would you do that? I don't understand that. You know you give us a little bit more. You have a junior lawyer you know that it's the vein of the existence of the defense bar and the glory of the plaintiffs body to have non-su Virginia's wonder if the only state like that you can't get cause assessed against you I've had it done against me it looked at the jury didn't like with the jury look like they said non-su you're right it's a very powerful weapon for the plaintiff six months on the end of the statute whichever is the great her. This way your honor we reserved our rights and we decided that it was the best strategic maneuver because we wanted to have an opportunity to look at the defendant's argument a little bit more and we still have the non-suit we haven't really lost anything so. I've done all that without moving to vacate the non-suit except as I'm explaining the court would have lost jurisdiction within 21 days we wanted to vacate the non-suit so that we could have a little time to do some more research upon further reflection it was unnecessary we could have non-suited and refiled but in that would have been a more precise way in a cleaner procedural way it would have and I submit that that's exactly why the defendant removed us because they didn't want us to be able to do that I mean we were very cautious and we did what we think what we thought was right under the circumstances still having the right to take a non-su. The strength of your argument you've continued that on the day the suit was removed to federal court the suit had not been dismissed in state court. Is that correct? No question had not been about jurisdiction the case had not been dismissed. It was a live in kickin we had a motion to amend the complaint on for the next day. Now let me have things that the state court could have done it rule later but we don't know what they would have done or could have done because it's removed. Correct. So at your point is that you still had those arrows in your quiver and that is non-suited the suiting all those kind of things which you didn't do. Absolutely and that it was air. Assuming the removal was proper and I've seen no indication that from you that the removal was improper the district court has to decide what the state court would have done and I think here since the procedural question I don't think Judge Davis is right on the point I don't think state law becomes irrelevant at this point because the whole procedural question was was born and growing to maturity within the state court system. I think it would not show that federal rules of service or process just take over I think that the procedural history of the case in state court can't be ignored. I think the federal rules do take over and but too for many purposes they would for summary judgment they would for a good many purposes but here the the whole case was litigated extensively under state procedure and state law and you know that's different from the way the federal rules of evidence kick you in and it's different from the way a summary judgment motion is decided and everything the state the case for whatever reason was was litigated under state rules of procedure and I don't think we are just free to ignore that because that's what you have governed by at the time. We would absolutely have been governed by state procedures had we stayed in state court I think to answer what I'm hearing as your question Judge Wilkinson is was it Judge Lee's job to sit in the shoes of a state court and decide what a state court would have done and our answer is no not to the extent there was any discretion afforded a state judge all of the defense case I'm so glad to hear you say that could you elaborate because that's exactly my question I think you agreed earlier that a state judge would have had a broad discretion whether to dismiss your case or not yes with or without prejudice to the extent that Virginia recognizes any such thing and yet you just said to Judge Wilkinson if I'm following you that Judge Lee though he sits as a state judge on this motion to dismiss doesn't have the discretion that the state judge would have had and I find that very difficult to comprehend I think if have I correctly well I give an account of of your position he I think in interpreting and looking at the applicability of state procedural rules Judge Lee had the job of deciding whether it was mandatory whether there was no circumstance by which Miss Rice could have continued in the state court so to that extent to that if if Judge Lee erroneously thought he had no discretion but to dismiss the case then you're here on legal error and we apply a De Novo standard of review right but but if he if he understood or if we're persuaded that he understood that he had the discretion whether to to dismiss the case or keep the case in federal court then is do you agree that our standard review is abuse of discretion no and why not what so so Judge Lee has less discretion to dismiss the case than a state judge would have had under exactly the same circumstance how can that be because he's well first of all Judge Lee found that dismissal was mandatory okay so we'll put that to one side for a moment how can Judge Lee have less discretion than a state judge because he's applying state procedural rules in a federal case and it's just a matter I think it's a matter of federalism because it's a title seven case well because of the motor toward because he's in federal court and and I think I think Judge Lee in some parts of his opinion he he said he has to find out whether the state court had to dismiss the case and he found that in his opinion so I think even he understood that he was discretion to the extent that if there's due diligence in trying to serve process or the defendant then there there's discretion on the part of the state court judge to find a due diligence but I understand if you haven't raised a due diligence claim here you haven't said something like well we really tried to find these defendants we couldn't exactly serve them or we had problems finding out the address of this or that person that we made in a attempt but it didn't work out there was no there was no claim along that you've got to ask you know what would the discretion can join and normally when you have these with with respect to time bars and we we have this and filing notices of appeal and everything we have an excusable neglect standard in the due diligence formulation is sort of a parallel to an excusable neglect standard and but there wasn't and that's what discretion is when you fail to meet a time deadline is there some reason but the only reason that you've given us was that the defense council said something and you sort of took their work for and that wouldn't have afforded a state judge or the district court in this case the the kind of that kind of discretion you haven't you you haven't made the case that the district court should exercise discretion in your favor that's the problem you're on our I see that my time is is up may may I certainly are I be happy to answer it now whatever we're going to answer it now but I think I think the Collins versus Shepherd case the rudder versus living centers of Virginia and the Friday case all stand for the proposition that the state court in Virginia has discretion to consider factors other than just due diligence that there has to be a hearing to consider all of the facts and circumstances and I submit that it is within the equitable power of the state court in Virginia to consider all of what happened here including the 17 days where this plaintiff by definition could not have obtained a summons and would have been impossible to serve the defendant so that the state court could balance the policies and objectives of the one-year service rule with the non-suit statute and the facts here it would be unfair and inappropriate and an absurd conclusion like the Friday case found to allow the plaintiff to perfect service as we did as the defense admits but that it's going to be dismissed because it's untimely so on the facts of this particular case the state court would have had the discretion thank you Josh we've got some rebuttal time coming to you as well all right let's hear from the other side in this case thank you your honor Douglas Meister on behalf of Appellee Co-Appellee off of security and if you curious I'm not the counsel that was involved in that discussion about the with that was Mr. Robinson with Mr. Kelly I have one maybe two issues like to focus on in my time can I actually run really quick question I really wanted to ask Mr. Kelly if no no I'm talking to counsel I'm sorry if one of her points is that they couldn't obtain a summons during the period of the non-suit correct my question and she can answer later if she'd obtained the summons say a week before the non-suit would that argument remain the same does the summons a bait or die with the falling of a non-suit or could you could you serve a defendant doing period of non-suit if you already have no reason why not absolutely okay thank I didn't want to take up any more we've got here the argument falls back on does the appellant have or should have been afforded on 120 days under 1448 to make proper service timely service as in an original case in the district court that really doesn't matter anymore because the appellant didn't that was never preserved for argument here because the appellant never did try to serve well I don't know if they tried and didn't find us but certainly original service has not been made during that 120 day period there's no way to fix that unless there's no certain hasn't been made under the federal road there's certainly no federal statute that allows her an additional time outside of 120 days well state procedures already said that it's got to be filed within a year it's out of a year there's no dispute that it's outside of a calendar year I mean they're absolutely none now the appellant argues that it should be told for various reasons which I'll leave to our briefing unless you have questions but the regardless of whether we decide federal state procedure applies it's outside the time absolutely and that's through no fall to the plaintiffs the appellant has twice exceeded the filing period and not filed timely you mean no fall to the defend through no I'm sorry no fall to defend its appellees here there's no way to fix this this is procedurally dead unfortunately well depending on the side run it wasn't I mean a year is a very long time for service of process have most fake rules have a year but no not at all it is a very long time it's a very generous time limit I mean it's not not asking the impossible of a plaintiff to serve process within one year I mean that's one of the most as I think it's one of the most generous time limits in any of the space isn't it yes and this just when you talk about excusing it and everything you have to take into account that you had one year to do it that's as of what is it three times as long or four times as long as the federal rules allow 120 days is three months that's four times as long it's not a hard thing to do not only was it not hard once the plan the plaintiff below decided to serve us they did it in one day one they they came to us in one day and we are resident agents were not available the next day when our residents agents were available they made service but but the district court didn't dismiss the case on the basis of the 120-day federal staff no because in fact as of coincidence as of the day the district court actually heard second set of arguments January 11th that was still timely for service so now let's take that aside I want well taken to that I want 120 days let's put that aside for a second the reason that the district court gave was that the case was already I call it a dead letter but a dead case when it when it got here that seems to just that court is clearly saying that I'm not looking at whether or not I should look at diligence or whatever I can't it was dead isn't that wrong though I don't believe that's quite what was the court did say it was juristic jurist potentially dead okay well we don't know just potential me but we know it dead me so let's deal with dead I believe he said it was dead so but it's that's not correct or is it it would it's anticipatory it's dead in the sense that a Virginia judge who would be given this set of facts would rule that it is outside a calendar year and can't be revived so judge Lee killed it he then went on to consideration of due diligence as to whether or not there was due diligence in the inexercise of discretion that might have saved the case under Virginia law and he found there was not what if it was a fatal complete for the state court why would the court grant the vacature of the nonsense we had not been served we don't know we have no idea what arguments were presented that was suggested the court thought that it was something to continue on otherwise you wouldn't grant it because the court knew then that they were at the one day left point there and that so 364 weighed that law and you can improve diligence you're not going to be able to prove one day more so that would have suggested the state court would have done different because it gave her a new breath of freedom if you were I don't see how it gave her any freedom except for that one last day so you would but then that's what what the one last day what then if it's told for 17 days didn't they do that at one last day because if 31st would have been that one day because what the last day it was the it was the anti-ultimate day right so so then when once the toll is there then we don't believe it's told we don't believe it told anything well how could statue you don't think it did no absolutely not there's nothing in in Virginia law that says filing a non-suit tolls the time in which a non-suit or an then vacating it tolls the time in which a non-suit may be served and you could have gotten an answer to that question from a Virginia judge if you hadn't removed the case there's no difference in applying a judge Lee applying Virginia law then there is then a Virginia state judge that judge Lee is judge Lee and a Virginia judge is a Virginia judge is every difference in the world I'm not suggesting the outcome should be the same but my point I think you know my point my it's simply that from a strategic tactical perspective I don't know what's going on here I was surprised to hear that there had been conversations between council I don't know if that's in the record but I was surprised to hear that this morning but in any event a defendant who chooses to remove a case the federal court has made an option to get a decision from federal judge reviewed by this court as opposed to a decision by Virginia judge reviewed by the Virginia Court of Appeals and perhaps the Virginia Supreme Court I don't I don't think this issue is is is complicated and requires extensive knowledge of Virginia law from a former civil procedure professor this is very complicated thank you very much anything else yes you got no go ahead sit down good may I please the court I'm Steve Robinson and together with my associate Nick San Felipe we represent budget motels and waterloo hospitality which for purposes of argument will refer to as as budget motels I think what's important first of all to go back to address some of the concerns the court has is to look at the calendar the counters and the brief but I would like to just give the court three or four dates to consider first of all this case was filed on August 15th 2011 the 89th day under the 90 days from a right to sue letter issued by the E.R.C. on August 3rd well within the one year period of time in which service could be affected the plaintiff files an unopposed motion in Fairfax for an on-suit unopposed because the defendants hadn't been served not because both because would have made any difference correct yes by right by right and as your honor notes I I've sat there and watched the motion to strike evaporate as the plaintiff gets up and says we're taking a non-suit thank you very much so rather than do what frankly I think would be logical to get back to Judge Davis's point if you found a motion for a non-suit on August 3rd why aren't you getting a summons and going and serving I don't know the answer to that but frankly had that happen we wouldn't have been here today but what happens instead is Judge rash enters the order on August 14th a non-suit order unopposed the plaintiff then realizes and again in all candor with the court it was a conversation with me because I called the plaintiff's counsel this is not the record but I'm happy to share because I think there's some interest in it what you find out about the case your honor we monitor the case of the Fairfax regularly of course you do sure I mean you know Fairfax in those days was in the beginnings of their electronic dockening system and frankly we had a paralegal who went by you know probably once a month so you get a lot of business well we knew the case well maybe not a lot of we we you're honor we knew the case was coming because we'd represent the defendant's administrative situation and frankly we were counting the days on the right to sue and frankly we only followed the dock it in the federal court it never occurred us until several months after the case was filed in the circuit court of Fairfax that that indeed was where this court was going to have jurisdiction because you feel had a right to service with process absolutely exactly that's exactly right so when the plaintiff goes ahead on on the 16th or 17th day on August 30th and again unopposed as judge Gregory probably knows calendar control and Fairfax a 30 in morning you walk in your honor I want an order judge signs the order there's the judge doesn't have the file in front of himself or herself under the plaintiff's theory the case is now active on August 30th that is the last day to serve if this that told it even if there is tolling it's the last day to serve because I don't understand that well you're honor the original lawsuit was filed on August 15th 2011 okay non-soot order entered August 14th 2012 okay I see one day left so in August 30th is tolling the 14 or 17 days or whatever doesn't make any death doesn't make any I mean again is and we've argued in our brief and I think the district judge correctly found and again as you all know judge Lee had the benefit of sitting on the bench and Fairfax for about 10 years so they was again just finished Judge Davis answer but it's quickly what's the date that the picture was entered it was August 30th your honor okay that's my thought and and if you look you look in the in the joint of clinics like I'm gonna give you the site if the court wants it you look and you see there's a handwritten notation to the court and Fairfax at 938 am on that day to issue summons so on the last day that service could be made the plaintiff got her summons it yeah wouldn't be the last day to serve would be August 31st your honor with all due respect it wouldn't be why not because she had one day left when the non-suit was entered that's right okay on August 30th the case is now back on the docket to use the plaintiff's phrase it has to be live and kicking because otherwise they couldn't have gotten a summons but but but it's back on the docket but the date now is as if it was August 14th I think your honor it would be August 15th why because the case was non-suited on the 14th it was an active case through the 14th I mean theoretically to get back to Judge Davis's yeah but that but that's see that would be the same thing if there was her last day if it was her last day she got the non-suit then the day it is vacated would be the same day now she has to serve but when you have one more day then you have to have one more day after it is vacated which would be the 31st how would that not be your honor I think the reason it wouldn't be is because the case was in existence on August 14th because it was not dismissed until that day so it was again to go back to the appellance phrase it was alive and kicking on the 14th so they had one day left I agree right the day that right exactly one day left all right in August 30th again because the non-suited order has been vacated put back on the docket correct so that's the more day so that's the equivalent of August 15th because the case was alive on the 14th your honor I see okay I don't okay I see all right Judge Gregory's got the better of the argument if if the if the non-suited is entered on the 14 and vacated on the 30th then the 30th becomes the virtual 14 and so the 31st becomes the virtual 15 right and frankly we need not very better physical well it is very much your honor and with all due respect to obviously I think the case can't be alive but the 364th day can't be both the 14th and the 30th which I think with all due respect would be the circumstance under the argument that your honors are positive because the case did exist on the 14th that's day 364 everybody agrees with that the case ended on day 364 because the non-suited was taken so then we have the cases back let me just by helping real quick yes sir if the 14th of August was the last day right okay and if in fact it was vacated as it was on the 30 what would be the date last day to file then I don't think there would be a last day that's the other way you say you don't you continue couldn't even do it that day that's correct well that's correct your honor I don't see how that could be all right well nevertheless again I don't think that's an issue the court needs to to reach because as the district court correctly found there clearly was in essence no effect for the non-su because as we cited in our papers and nobody really seems to debate that in fact the the appellant in her argument also agrees if you look at her argument before the district court if you vacate the non-suited order it deprived the non-suited order of any effect that's correct your honor and if it would leave the I mean it would leave would that leave the time period continuous yes sir your honor and if you look we don't need to get into this whether there's one day or not because if you vacate the order to the non-su it's as if the non-su never happen that's correct your honor if you look at page 85 of the joint appendix in the colloquy with the district court judge Lee asked quote tell me what your view is of the word vacate what does vacate mean to you Miss Kelly well that other order doesn't have any effect and we are just back like we were before and then she mean continuing effect I don't know what you meant you're on I'm you know I always tell witnesses in deposition say can't tell me what other people thought and I'm not about to do that here is that it what's the what's the case law that supports judge Lee's interpretation of of vacate the vacate wipes out the whole period of non-su your honor we have we have cited a series of cases in our but there's no specific holding by a Virginia that's correct there absolutely is not there there is generally gotten such a holding if you wanted to stay in Virginia well let me address that question your honor because then maybe that's a little bit of the elephant room this was a title seven case a title seven case that when suit was filed the operative events were now five years old obviously a lengthy period of time witnesses move they die they forget things serious restrictions on taking out of state depositions and discovery in the Virginia State Court again as as you all know there's no rule 56 or anything close to that in a Virginia State Court in fact it's just the opposite depositions cannot be used in a summary judgment motion played any deposition really any depositions so the situation that we had was number one it's a title seven case it's been around for a long time number two with all due respect to the bench and Fairfax they don't see many title seven cases we wanted to judge who was familiar with the case law number three we would have been severely procedurally handled or hampered rather by the lack of ability to take broader discovery and frankly fourth summary judgment probably would never would have been a possibility and again as your honors know from sitting on this court a lot of employment cases go on summary judgment I think there's a real question here is the well of state or federal procedure even applies because I mean that that in itself is a bit of a difficult question and so I'm not but I'm not sure we need to resolve it if it's untimely under either law the the question I look at is this bears on the equitable toe and the plane here had a long amount of time to perform a almost immaterial function perfectly straightforward function which is simply the serve process it's not an archaing plane it's a part of every single lawsuit it wasn't done until after a year after filing in Virginia it wasn't done until I wasn't done within 120 days in federal court and there's no you know there's no attempt here to establish one of these procedural tripwriters or to have plaintiff's case thrown out of court on as a result of being blindsided by some kind of a rule it ought to be a matter of second nature to simply serve process give the opposing party notice of someone's in complaint and people do that simply as a matter of course when something is this file and when you look at the extraordinary delay the question is you know should we bend over backwards or or try to work things around to the salvage something that I don't think was litigated in the way that it really should have been and it almost encourages an absence of some kind of precision or due diligence in courts low when we when we do it this all of it could have been avoided difficulty is the plaintiff is creative problems for herself unfortunately but that's what's happened when you look at it as a whole that's certainly been the defendant's position all along is the courts well aware the Virginia post statutes and rules make it clear that no judgment can be entered in a case in which the complaint has not been served in a year absent in order from the court finding the due diligence occurred there's not even attempt argue the due diligence occurred here and my time's running out I'll be happy to answer any questions but you would be happy that if you file within one year being 364th day due diligence has nothing to do with it 364 would be okay because you'd be with any year right that's what I'm saying so but but so due diligence really almost as a red hairing in a sense in terms of that's the point is the argument is that it was filed timely because their argument is that there was there was a tolling and that was timely their argument is premised on the 17 or 16 days depending on how you count exactly not having any impact which would mean the order vacating the non-suit was annulity which again I'm out of time and I don't want to press my luck with the court but I think we've cited the the decisions in our brief and arrest on our brief on that issue I'll be happy to answer any other questions that the court we have the the vacator of the vacator of the non-suit was entered correct yes sir thank you on our I'd like to just address a couple of the points that seem to be of concern judge Wilkinson I understand that you are concerned about the long period of time that a plane of has served in Virginia the 120 days well well because judge Lee denied their their motion let's don't forget about that you would you denied their motion and and therefore we expected we were going to be able to proceed but he took until December to change his mind so we wouldn't serve if their motion had been denied and there was no need 1448 says if service has been found effective we have the right to reserve and I think the real issue is getting lost here the only thing that judge already ruling your favor in our favor correct judge Lee initially denied their motions so you have a reason for not filing 120 days yes sir so this is a digital stop if you are your judges are stopped from from from claiming you have to do something that court made to think that he was ruling for your favor right and defense never raised that below but as a matter of fact judge Lee had denied their motions but I think the real fundamental issue is was the case alive when it arrived and you don't have to accept any tolling argument to find that it was Fairfax record says it was and the very fact that we could have taken a non-suit if the non-suit order was vacated then by definition we still had a non-suit as a matter of right and there is no question that under controlling Virginia Supreme Court law we could take a non-suit even after the expiration of the one year even after the one year for service expires as generous as that is that's the holiday situation you're relying on no I'm not relying on waterman versus Halverson and Barry versus FNS financial marketing Virginia Supreme Court cases where the court rejected defendant's argument that they had a right to a dismissal that there was no jurisdiction and is there any limit on the number of non-suits the under the Virginia Code plaintive has one non-suit as a matter of right which we still had by virtue of the vacation of that order and we may have additional ones in the discretion of the court right so by vacate it by being vacated you still had to one by right right that's really all that that that we have to show to prove under Virginia law this case was alive there are under Virginia law under controlling unquestionable Virginia law we could get lost into who could have and would have done what and that's what I meant by it was inappropriate for Judge Lee to step in those shoes really Judge Lee just has to say is this case alive I see it is alive and because Judge Lee can't grant a non-suit well he can but he can give you all kinds of time to fix things it was the defendant's choice to remove and they really should not be heard to complain about the plaintiffs right if service was found defective you're arguing this is as though this is a defendant's fault and you know that the defendants were aware of this we don't need to worry about service of process or it's defendant's fault to remove they have a perfect right to these things they have a perfect right to service of process they have a perfect right to remove the removal statutes give them that right and then what federal judge may decide on the state law all the time although it's not clear to me that state procedures still governed because I mean it's you know it's basic horn book law that federal procedure governs removed cases in state court just because it's removed it doesn't it doesn't mean necessarily that the federal that state procedure continues to to prevail I'm not at all sure that the federal rules don't don't control here the thing is in federal court and and even if it did it only as a protective matter you would think that you would serve within a hundred and you'd serve problems needed to arise it has been made vastly more complicated by the fact that someone didn't even take the rudimentary step and either state or federal court of clearly serving process within one year which isn't hard to do not at all I understand your honors comments but you know the Virginia the Virginia legislature made that balance in allowing the plaintiff the right to one year and the right to a non-suit why didn't you serve process why did you move to vacate the non-suit I don't understand any of it I don't understand why you didn't serve process in a way that would be timely I don't understand why you move to vacate the the non-suit well I've explained why we moved to vacate the non-suit and it was probably unnecessary but we still have our non-suit as a matter of right which means the case was alive as the Virginia legislature must have anticipated sometimes things happen in the course of a year 90 days is a quick statute limitations we met that everybody conceives that I was local counsel and there are a number of events that just took place and and I was doing an amended motion for judgment I'm allowed to rely just as the defense judge will consent completely respect and agree I understand I believe your point the defense has a right to remove well we have a right to wait at an entire year if we want to we have a right to take a non-suit if we want to we still have that right to take a non-suit you know that raises the question is whether the effect of the vacator and the effect of vacator is to make the non-suit order a nullity which means we could have taken it again and the throw the the filing date of August 31st passed the one year period I don't think it's a matter of 14 or 15 days I mean we can't change the whole notion of the of what a vacator represents and what the effect of it is but you don't even need to reach that the fact that the plaintiff had a right to keep her suit alive in Virginia means it arrived alive in judge please and your court is that Collins v. Shepherd and Barry are the two cases on which you rely well Collin Collins and Rudder show that the state court has discretion and fry that it's not just due diligence that there's the balancing of Virginia statutes but my point is you could have obtained even had you not serve process yes on August 31st yes and assuming the case was not removed on September 13th or whenever was you could have sought and obtained a non-suit in September October or November of 2012 absolutely and last the court had already dismissed it obviously but yes the Barry case the waterman and the reason for that in whole or in part is exactly because you got a vacator of the original non-suit correct correct so we had it as a matter of right we still had a non-suit because the first one didn't count it was vacated it didn't exist anymore we could also even if it did count have possibly gotten the second one as a matter of discretion but we still had one as a matter of right and we still could have taken it even after the expiration of the one-year service rule theory and waterman cases well we'd like the benefit of either the state as it stands here the defense wins we are denied all our basic powerful procedural options as a matter of right that we had in state court and now we're left with none in federal court because they chose to remove us quickly without asking for the state court to interpret its own procedural rules that's not fair and the Brazil case the only case that I've been able to locate from this court they don't have noted I'm sorry there's no there's no law of removal this is defendants have to ask for this state court ruling or that state court ruling before they remove you don't have to do that you can remove the case if it happens sometimes within a day you don't have to sit there and ask the state judge for ruling you don't but they chose not even think it applies that they chose to remove it when they did and and they removed a live case plan of could have kept it alive and that's really the only question before this court judge Lee was wrong and remind us why I have my red light judge me I sure that's just what it's been enormously generous today as you all saw and and and that's a good thing but why did judge Lee get it so wrong if it's so obvious just let me finish if it's so obvious as you say it is and now it appears that you're right that you you could have taken a non-suit had the case remained in in in in state court regardless of whether and when you serve process how did judge Lee get that so wrong I can't speak for judge Lee his opinion is conflicting literally in different parts of it in one part of his opinion he says the vacation of the non-suit order brings it back exactly to the status quo ante and then later he seems to have some doubt as to whether the plaintiff could take the non-suit how that doubt came about what he's talking about he cited no statute he sounded no law and I don't know why he had any doubt that was part of the reason we appealed it we think it really is plain wrong are there any other questions that I could ask answer you real a adjourn court this honorable court said the journey to tomorrow morning at 9.30 I see you've done a station this honorable cour

Legal Case Summary

Jacqueline Rice v. Alpha Security, Incorporated

Date Argued: Wed Jan 29 2014

Case Number: 14-20450

Docket Number: 2591303

Judges:J. Harvie Wilkinson III, Roger L. Gregory, Andre M. Davis

Duration: 58 minutes

Court Name: Court of Appeals for the Fourth Circuit

Case Summary

Jacqueline Rice v. Alpha Security, Incorporated

Oral Audio Transcript(Beta version)