In a unanimous opinion last week, the Ohio Supreme Court held that the failure to serve a defendant within one year results in a dismissal with prejudice if the complaint has been previously voluntarily dismissed. The decision seems poorly reasoned, as it does not account for either Civ.R. 4(E) or R.C. 2305.19(A).
The plaintiff in Sisk & Associates, Inc. v. Committee to Elect Timothy Grendell, 2009-Ohio-5591 [PDF] filed its initial complaint in September 2004, but voluntarily dismissed pursuant to Civ.R. 41(A) after failing to serve the defendant within one year. Sisk re-filed in October 2005, but again failed to serve the defendant within one year, and apparently did not even issue a praecipe for service until March of 2007.
The trial court dismissed the case without prejudice, citing a lack of personal jurisdiction over the defendant. The Tenth District agreed, noting that Civ.R. 41(B)(4)(a) provides that a dismissal for lack of personal jurisdiction is a dismissal otherwise than on the merits.
The Supreme Court reversed, beginning its analysis with the non-controversial statement that the first dismissal of the case was voluntary, and that if the plaintiff had voluntarily dismissed the case a second time, the second dismissal would have been on the merits–that is, with prejudice–pursuant to Civ.R. 41(A)(1).
But the second dismissal was involuntary. Under Civ.R. 41(B)(3), an involuntary dismissal “operates as an adjudication up on the merits unless the court, in its dismissal order, otherwise specifies.” And in this case, the court specified otherwise, stating that the involuntary dismissal was without prejudice.
Put more simply, if the plaintiff voluntarily dismissed the second time, then the dismissal would be with prejudice. But by letting the court dismsis, then the dismissal was without prejudice. The Court did not find this to be equitable.
In support of its holding that the second dismissal should have been with prejudice, the Court cited Civ.R. 3(A), which provides that “[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing . . . .” The Court then reasoned that the plaintiff’s request for service outside that one-year time period essentially amounted to the filing of a new–that is, a third–complaint. And filing a third complaint means that the second complaint must have been dismissed. The court treated this implied dismissal a second notice dismissal, which under Civ.R. 41(A)(1) must be with prejudice.
This seems like an odd set of legal fictions to construct when the Court could have reached the same result much more simply under the savings statute, and without offending Civ.R. 4(E). (Rule 4(E) provides that the time for service may be extended beyond one year upon a showing of good cause, and that a failure to serve within one year shall be a dismissal without prejudice.)
The better approach would have been to focus not on implied dismissals, but on the savings statute, R.C. 2305.19(A). The savings statute provides that a party “may commence a new action within one year after . . . the plaintiff’s failure otherwise than upon the merits.” Civ.R. 3(A) determines when a new action is “commenced” — specifically, a new action is commenced when the complaint is filed with the court, so long as the defendant is served within one year. In this case, because the defendant was not served within one year, the new action was never “commenced.” As a new action was not commenced, the plaintiff could not take advantage of the savings statute.
But then again, perhaps there is a reason that I am not a Supreme Court Justice (other than my ineligibility under R.C. 2503.01).
We have previously covered the Ohio savings statute and Civ.R. 41, as they relate to arbitrations.
This post was written by Jeffrey M. Nye.