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June 30, 2006

Simple question in the office this week:  if a lawsuit gets dismissed for lack of service, does the plaintiff still get the benefit of the savings clause, RC 2305.19, permitting him to refile within one year?

Simple answer:  it depends on who dismisses it, and why it gets dismissed.  Civil Rule 4(E) requires a court to dismiss a case if the plaintiff doesn't get service within six months and can't give a good explanation why not.  The rule, though, clearly states that it's a dismissal without prejudice.  So if you get bounced out for that, there's no problem in refiling, as long as you do it within a year.

But take a look at Rule 3(A), which says that an action is "commenced" if it's filed and service is obtained within one year.  If a defendant is smart, instead of objecting that you didn't get service within the six months of Rule 4(E), they'll wait out the year, then move to dismiss.  And then you're screwed.

Why? you say.  After all, the savings statute gives you a year to refile in any action that is "commenced or attempted to be commenced."  Surely you can argue that you attempted to commence the action, and thus are entitled to a year after it's dismissed to refile it.

You can get away with that argument in a number of districts, but Cuyahoga County isn't one of them.  Back in 2003, in Anderson v. Borg-Warner Corp., our court held that failure to get service within a year not only requires dismissal, but bars refiling as well. 

Anderson's reasoning is quite simple.  Let's say you have an auto accident which occurred on July 1, 2002.  You have until July 1, 2004 to file the lawsuit.  Under Rule 3(A), you have until July 1, 2005, to get service.  But if you don't get service within that year, the action has never been commenced, and you're now outside the statute of limitations.  The defendant is thus entitled to have the complaint dismissed on statute of limitation grounds, and that is a dismissal on the merits, so the savings clause isn't applicable.

As I said, the reasoning in Anderson is simple, but that doesn't necessarily mean it's right, and most districts don't agree with it, as this case shows.  Keep in minid, too, that in Anderson the defendants had moved to dismiss the case; in other words, it doesn't address the situation in which the plaintiff dismisses after the year's gone by, then refiles.  In that case, arguably, you do not have a "judgment on the merits," so you're not taken out of the savings clause.

But if you practice in this county and you've got a service problem, the safe bet is to make sure you dismiss before the year after filing is up, and then refile.

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