Voluntary Dismissal For Lack Of Jurisdiction Not With Prejudice Under Rule 41(a)(1)

The Seventh Circuit has clarified the interaction between Fed.R.Civ.P. 41(a)(1) and 12(h)(3).

In Murray v. Conseco, Inc., 467 F.3d 602 (7th Cir. Oct. 25, 2006), defendants moved to dismiss for failure to state a claim and for lack of subject-matter jurisdiction. Plaintiffs conceded the jurisdictional point and filed a “notice of consent to dismiss.” Defendants convinced the district court that this was both a voluntary dismissal under Rule 41(a)(1) and also the second time plaintiffs dismissed, and therefore the dismissal was required to be with prejudice under that rule.

On appeal, the Seventh Circuit reversed because this was not a voluntary dismissal within the definition of Rule 41(a)(1) due to its being filed later in the proceedings. Instead, plaintiff was complying with the mandate that the court be advised as soon as becoming aware of jurisdictional problems. The court’s dismissal was made in compliance with Rule 12(h)(3), not Rule 41(a)(1), and the two-dismissal rule was not implicated.

Ohio Complaint Was Timely Despite Clerk’s Improper Practice Of Delaying Service

The Supreme Court of Ohio has confirmed a bright-line rule that the filing of a complaint commences the action for statute of limitations purposes.

In Seger v. For Women, Inc., 110 Ohio St.3d 451, 854 N.E.2d 188 (Oct. 4, 2006), plaintiff filed a medical malpractice action days before the expiration of the statute of limitations, but requested the Clerk not to effect service yet because she was still investigating the identity of an additional defendant. The Clerk served the complaint four months later when plaintiff requested it.

Defendants argued that the Clerk violated Rule 4(A), which requires the Clerk to effect service “forthwith,” causing the action to be commenced out of time. While the court agreed that Rule 4(A) was violated, and it condemned the Clerk’s apparent practice of allowing counsel to request delays of service contrary to that rule, it held that Ohio Civil Rule 3(A) establishes an absolute rule that a civil action is commenced the day the complaint is filed “if service is obtained within one year.” It rejected construing Rule 4 as affecting Rule 3 because that would lead to case-by-case evaluations of what “forthwith” meant in particular circumstances, whether delay was intentional, and what the consequences should be.

Reinstatement Under Rule 60(b) Tolls Statute Of Limitations As Of Original Filing

In Stanley v. Foster, 464 F.3d 565 (5th Cir. Sept. 12, 2006), the court considered as a matter of first impression the interplay between two rules dealing with the effect of a dismissal.

In general, if a court dismissed a complaint without prejudice the statute of limitations may continue to run. As a result, the action that the plaintiff was hoping to pursue through an amended complaint may have become time-barred. However, another legal concept holds generally that if a dismissal order is later set aside, the cause is reinstated as though the judgment had never been entered. Taken literally, that would mean that the reinstatement date has no independent significance.

The court in Stanley apparently agreed. Examining the effect upon the statute of limitations of a successful Rule 60(b) motion that reinstated a complaint, the court held that in such a situation the date of the original filing, not of the 60(b) ruling, is the proper date for purposes of the statute of limitations.