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Eto v. Muranaka11/6/2002
court's dismissal, stating that, although "[FRCP] Rule 4(j) states that a dismissal for failure properly serve the defendant within 120 days of the filing of the complaint is without prejudice, . . . dismissal is proper even if it occurs after the expiration of the applicable statute of limitations period, and its effect is to bar the plaintiff's claim." Id. at 453.
Similarly, here, Judge Chang determined that Plaintiff failed to serve the First Complaint within the six-month period allotted by RCCH Rule 28 and within the extended periods granted by the court prior to his May 1, 1998 order granting dismissal without prejudice. Plaintiff did not appeal this order. Although Judge Chang's dismissal was without prejudice, the limitations period continued to run. By the time Plaintiff filed her Second Complaint, the statute of limitations had run, and the Second Complaint was time-barred. XIII.
For the foregoing reasons, the court's June 17, 1999 "Order Granting Defendant Ryu Muranaka's Motion to Dismiss Plaintiff's [Second] Complaint filed on April 8, 1998, or, in the Alternative, for Summary Judgment, filed on April 26, 1999" and the February 29, 2000 judgment are affirmed.
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