Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

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.

Search

Recent Entries

  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax