Frazier v. DolgenCorp LLC et al

Filing 25

ORDER granting 17 Motion to Dismiss. Signed by Honorable David C Norton on June 3, 2021.(cdan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
ELIZABETH FRAZIER,

)
)
Plaintiff,
)
)
vs.
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DOLGENCORP, LLC, d/b/a DOLLAR
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GENERAL, d/b/a DOLLAR GENERAL
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STORE NO. 09450; MICHAEL ZACZEK; and )
CANDY BERMEJO,
)
)
Defendants.
)
_______________________________________)

No. 9:21-cv-0135-DCN
ORDER

The following matter comes before the court on defendants Michael Zaczek
(“Zaczek”) and Candy Bermejo’s (“Bermejo”) (collectively, “defendants”) motion to
dismiss, ECF No. 17. For the reasons set forth below, the court grants the motion and
dismisses Zaczek and Bermejo from the case.
I. BACKGROUND
This action arises out of an alleged slip-and-fall. According to the complaint, on
January 6, 2018, plaintiff Elizabeth Frazier (“Frazier”) slipped and fell in front of a
Dollar General store in Ridgeland, South Carolina, sustaining serious injuries to her head,
back, buttocks, and shoulders. On December 10, 2020, Frazier filed this action against
defendants and defendant DolgenCorp, LLC d/b/a Dollar General (“Dollar General”) in
the Jasper County Court of Common Pleas. ECF No. 1-1, Compl. There is no dispute
that Frazier properly served Dollar General with the summons and complaint shortly
thereafter. On January 13, 2021, Dollar General removed the action to this court. ECF
No. 1.

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Defendants Zaczek and Bermejo allegedly own the building in which Dollar
General operates its store. Although the complaint includes Zaczek and Bermejo as
defendants, Frazier did not attempt to serve them with the summons and complaint until
late March 2021. She has presented evidence that she attempted to serve defendants at a
San Francisco, California address five times from March 30, 2021 to April 3, 2021. ECF
No. 21-1. Those attempts were unsuccessful. On April 12, 2021, Frazier filed a motion
for service by publication, ECF No. 15, which the court granted on April 14, 2021, ECF
No. 16. On April 16, 2021, Frazier attempted to serve the defendants via certified mail.
It is unclear whether defendants received the summons and complaint as a result of that
attempt. On May 4, 2021, defendants filed a motion to dismiss, arguing that Frazier
failed to properly serve them within the applicable limitations period. ECF No. 17. On
May 18, 2021, Frazier filed a response in opposition, ECF No. 21, and on May 24, 2021,
defendants filed a reply in support, ECF No. 23. As such, the motion has been fully
briefed and is ripe for review.
II. STANDARD
Fed. R. Civ. 12(b)(5) provides defendants a vehicle for challenging the
sufficiency of a plaintiff’s service of process. Where a plaintiff fails to properly effect
service, Fed. R. Civ. P. 4(m) authorizes a district court to “dismiss the action without
prejudice” or “order that service be made within a specified time.” If service would be
futile because a plaintiff’s claim fails as a matter of law, the court should not grant a
plaintiff additional time to effect proper service. See Rogers v. Henderson, 2015 WL
2194477, at *2 (M.D.N.C. May 11, 2015) (“Allowing time to cure any service defects
would be futile because, as explained below, [the plaintiff’s] claims must be dismissed

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for failure to state a claim.”); see also Quinn v. Copart, Inc., 2018 WL 6498895, at *3
(D.S.C. Dec. 11, 2018), aff’d sub nom. Quinn v. Copart of Connecticut, Inc., 791 F.
App’x 393 (4th Cir. 2019) (dismissing with prejudice because “[w]hile ordinarily
dismissal for ineffective service of process is without prejudice, here, such designation
would be futile”). The plaintiff bears the burden to show that he or she complied with the
rules for service. Shlikas v. SLM Corp., 2011 WL 2118843, at *2 (D. Md. May 25,
2011), aff’d, 546 F. App’x 290 (4th Cir. 2013).
III. DISCUSSION
Defendants ask the court to dismiss them from this action, arguing that Frazier
“failed to properly serve [defendants] within the statute of limitations, which expired on
January 6, 2021, or within 120 days of filing her complaint, which passed on April 9,
2021.” ECF No. 17 at 1. In response, Frazier concedes that service upon defendants is
(if yet accomplished at all) untimely but asks that the court equitably toll the limitations
period so that she can accomplish service. Because Frazier has not demonstrated that a
court-ordered toll is justified, the court finds that Frazier failed to serve defendants within
the applicable statute of limitations. Therefore, permitting Frazier to cure her defective
attempts at service would be an exercise in futility. Thus, the court grants defendants’
motion and dismisses them from the case.
Where, as here, the court sits in diversity, it must look to state law to resolve
statute-of-limitations issues, including whether the applicable limitations period should
be tolled. See Wade v. Danek Med., Inc., 182 F.3d 281, 289 (4th Cir. 1999) (“[I]n any
case in which a state statute of limitations applies—whether because it is ‘borrowed’ in a
federal question action or because it applies under Erie in a diversity action—the state’s

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accompanying rule regarding equitable tolling should also apply.”). Under South
Carolina law, “[u]nless an action is commenced before expiration of the limitations
period, the plaintiff’s claim is normally barred.” Blyth v. Marcus, 470 S.E.2d 389, 390
(S.C. Ct. App. 1996). South Carolina’s applicable statute of limitations for personal
injury actions is three years and begins to run on the date of the alleged injury. S.C. Code
Ann. § 15-3-530(5); Wiggins v. Edwards, 442 S.E.2d 169, 170 (S.C. 1994). Further, in
South Carolina, an action is “commenced” for statute of limitations purposes “when the
summons and complaint are filed with the clerk of court if actual service is accomplished
within one hundred twenty days after filing.” S.C. Code Ann. § 15-3-20(B) (emphasis
added). The Supreme Court of South Carolina has explained why the legislature included
the one-hundred-twenty-day “safety net” between filing and service for statute of
limitations purposes:
[T]he legislative intent . . . was to provide a safety net for cases where filing
of the summons and complaint occurs near the end of the statute of
limitations and service is made after the limitations period has run. The
statute and the rule, read together, provide that (1) an action is commenced
upon filing the summons and complaint, if service is made within the statute
of limitations, and (2) if filing but not service is accomplished within the
statute of limitations, then service must be made within 120 days of filing.
Mims ex rel. Mims v. Babcock Ctr., Inc., 732 S.E.2d 395, 397–98 (S.C. 2012) (emphasis
in original).
Frazier’s complaint alleges that her injury occurred on January 6, 2018. She filed
the summons and complaint on December 10, 2020, shortly before the limitations period
expired on January 6, 2021. Under South Carolina law, then, Frazier had 120 days after
filing, or until April 9, 2021, to accomplish service upon defendants for her claim to be
timely under South Carolina law. And yet, Frazier did not attempt to serve defendants

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until March 30, 2021, ten days before the expiration of § 15-3-20(B)’s “safety net”
period. ECF No. 21-1. That attempt at personal service, like the four that followed, was
unsuccessful. After the expiration of § 15-3-20(B)’s 120-day grace period, Frazier made
two additional attempts at service—first by publication on April 12, 2021, ECF No. 15,
and second by certified mail on April 16, 2021. Obviously, these attempts at service—
even if “successful”—are untimely, as each occurred after April 9, 2021. Indeed, Frazier
concedes that “service was not perfected within the 120 days of filing the [s]ummons and
[c]omplaint.” ECF No. 21 at 3. Therefore, there is no dispute that, absent any courtordered tolling, Frazier’s claim against defendants fails under South Carolina’s applicable
statute of limitations.
In response to the motion to dismiss, Frazier asks the court to “consider service
proper under the [d]octrine of [e]quitable [t]olling.” Id. The Supreme Court of South
Carolina has explained, “In order to serve the ends of justice where technical forfeitures
would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be
applied to toll the running of the statute of limitations.” Hooper v. Ebenezer Sr. Servs. &
Rehab. Ctr., 687 S.E.2d 29, 32 (S.C. 2009) (citing 54 C.J.S. Limitations of Actions § 115
(2005)). South Carolina has embraced a flexible standard, noting that tolling may be
appropriate “in a variety of contexts”:
The equitable power of a court is not bound by cast-iron rules but exists to
do fairness and is flexible and adaptable to particular exigencies so that
relief will be granted when, in view of all the circumstances, to deny it
would permit one party to suffer a gross wrong at the hands of the other.
Equitable tolling may be applied where it is justified under all the
circumstances.
Id. at 33 (quoting Hausman v. Hausman, 199 S.W. 3d 38, 42 (Tex. App. 2006)). Still,
tolling is appropriate only to the extent that it “is necessary to prevent unfairness to a
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diligent plaintiff.” Pelzer v. State, 662 S.E.2d 618, 620 (S.C. Ct. App. 2008). Most
crucial to the inquiry is the diligence with which the plaintiff pursued her rights. See
Hooper, 687 S.E.2d at 32. The law in South Carolina is clear that equitable tolling is
granted “rarely” and “reserved for extraordinary circumstances.” Pelzer, 662 S.E.2d at
620; see also Hooper, 687 S.E.2d at 32 (“[E]quitable tolling is a doctrine that should be
used sparingly and only when the interests of justice compel its use.”).
The circumstances here are not so extraordinary and instead suggest little more
than run-of-the-mill indiligence. Frazier notes that she attempted service five times prior
to April 9, 2021 and that she “ultimately performed” service “either by [c]ertified [m]ail”
on April 16, [2021] . . . or by [p]ublication on April 29, [2021.]” ECF No. 21 at 3. But
these service attempts do nothing to demonstrate Frazier’s diligence. For one, Frazier has
not claimed that she attempted service on defendants at any point prior to the expiration
of the statute of limitations, which occurred on January 6, 2021. Worse, Frazier waited
until March 30, 2021, ten days before the expiration of § 15-3-20(B)’s safety-net period,
before even attempting to serve defendants. In other words, Frazier faced a three-year
limitations period and a 120-day statutorily granted grace period, yet she waited three
years and 110 days to attempt service on defendants. This court has found that “a
plaintiff who makes no attempt at service until the final days of the 120–day period
generally cannot demonstrate the ‘reasonable, diligent efforts to effect service’ required
for a finding of good cause.” Joe Hand Promotions, Inc. v. Novak, 2012 WL 5077578, at
*2 (D.S.C. Oct. 18, 2012) (quoting Hoffman v. Baltimore Police Dep’t, 379 F. Supp. 2d
778, 786 (D. Md. 2005)). Frazier’s eleventh-hour and after-the-fact attempts at service
cannot redeem her lack of diligence.

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Nor does the case on which Frazier relies, Hooper, give the court a reason to toll
the limitations period. 687 S.E.2d at 29. In fact, the two ways in which Hooper differs
from the instant case demonstrate precisely why equitable tolling was appropriate there
and why the court cannot invoke it here. First, and most fundamentally, the plaintiff in
Hooper acted diligently. 687 S.E.2d at 34 (“[The plaintiff] finally was able to effect
service after the statute of limitations had run, only after she exercised reasonable and
due diligence to serve [the defendant]’s agent.”). Frazier, as the court outlined above, has
not. Second, the defendant in Hooper was to blame for the plaintiff’s inability to effect
proper service. Id. at 33–34 (“[W]e find [the defendant]’s failure to properly list its
registered agent for service with the Secretary of State as required by state law hindered
[the plaintiff]’s pursuit of service.”). Frazier has not argued, and the court has no reason
to believe, that defendants are to blame for Frazier’s failed service attempts. As the court
explained above, Frazier’s failures are her own. Therefore, the court is without grounds
to invoke the doctrine of equitable tolling.
Frazier’s statute of limitations expired on January 7, 2021. She did not attempt to
serve defendants before that deadline. Nevertheless, South Carolina law offered Frazier a
120-day “safety net” during which she could accomplish service, that period expiring on
April 9, 2021. Frazier failed to even attempt to take advantage of that grace period until
March 30, 2021 and now fails to give the court any excuse for her delay. When she
finally attempted service at the final hour, her attempts at service failed. Now, Frazier
requests that the court toll the statute of limitations on top of the built-in grace period
South Carolina law already affords. Because Frazier has failed to demonstrate her
diligence, the court must deny that request. Therefore, Frazier has missed the statute of

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limitations with respect to her claim against defendants, meaning that affording her an
additional grace period to perfect service on defendants would be futile. Accordingly, the
court grants the motion to dismiss and dismisses defendants Zaczek and Bermejo from
this action.
IV. CONCLUSION
For the foregoing reasons the court GRANTS the motion to dismiss and
DISMISSES defendants Zaczek and Bermejo from the case.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 3, 2021
Charleston, South Carolina

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