Court Holds Failure to Serve Once-Dismissed Complaint Within One Year Results in Dismissal With Prejudice
2008-1265. Sisk & Assoc., Inc. v. Commt. to Elect Timothy Grendell, Slip Opinion No. 2009-Ohio-5591.
Franklin App. No. 07AP-1002, 2008-Ohio-2342. Judgment reversed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Cupp, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-5591.pdf 
View oral argument video of this case.
(Oct. 29, 2009) The Supreme Court of Ohio ruled today that when a plaintiff in a civil suit has previously dismissed its complaint against a defendant voluntarily and then refiled it, and the plaintiff subsequently files an instruction directing the clerk of courts to serve the refiled complaint on the defendant more than one year after the date of refiling, the instruction by operation of law is a second “notice dismissal” that results in dismissal of the plaintiff’s claims with prejudice.
Under Ohio Civil Rule 41(A)(1), often referred to as the “double-dismissal rule,” a plaintiff is permitted to unilaterally dismiss his civil complaint against a defendant “without prejudice” (without impairing his ability to later refile the same complaint) on one occasion by simply filing a notice of dismissal with the trial court. The rule provides, however, that if a voluntarily dismissed complaint is refiled, any subsequent voluntary dismissal by the plaintiff without the express consent of the defendant or leave of the court will result in a dismissal “with prejudice,” which means that the plaintiff is thereafter barred from pursuing any future civil action against the defendant based on the claims alleged in the dismissed complaint.
In this case, a political consulting firm, Sisk & Associates, filed a breach of contract suit against the campaign committee of State Senator Timothy Grendell. Sisk’s original complaint, filed in September 2004, was voluntarily dismissed by Sisk in early October 2005. Later that month, Sisk refiled its complaint but then waited more than a year before requesting that the trial court serve a copy of the complaint on the committee.
The committee filed a motion asking the trial court to dismiss the refiled complaint on the basis that, under Civil Rule 4, a court only has jurisdiction to proceed in a civil case if service of the complaint has been made on all defendants within one year after the complaint was filed. Their motion asked the court to dismiss Sisk’s complaint with prejudice under the double-dismissal rule, asserting that the plaintiff’s failure to perfect service of the complaint on them within one year of refiling it was the equivalent of a second voluntary dismissal. The trial court granted the motion to dismiss, but held that the dismissal was without prejudice because it was premised on the court’s lack of jurisdiction and was not granted pursuant to a second “notice dismissal” requested by Sisk. The committee appealed. On review, the 10th District Court of Appeals affirmed the ruling of the trial court that its dismissal of the refiled complaint was without prejudice because it did not fall within the provisions of the double-dismissal rule. The committee then sought and was granted Supreme Court review of the lower court decisions.
Writing for the Court in today’s decision, Justice Paul E. Pfeifer noted that, although the trial court’s dismissal of Sisk’s refiled lawsuit was technically an involuntary dismissal for lack of personal jurisdiction, that lack of jurisdiction was a direct result of Sisk’s own failure to perfect service on the defendants within the one-year time limit for doing so set forth in Civ.R. 3(A).
He wrote: “Civ.R. 3(A) states that ‘[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant.’ A principal purpose of Civ.R. 3(A) is ‘to promote the prompt and orderly resolution of litigation, as well as eliminating the unnecessary clogging of court dockets caused by undue delay.’ Saunders v. Choi (1984).” In effect, Justice Pfeifer stated, the lower court rulings granting dismissal without prejudice enabled Sisk to avoid application of the double-dismissal rule to his claims by allowing the deadline for serving his complaint on the defendant to expire.
“(T)he situation thereby created is clearly incompatible with the purpose of Civ.R. 3(A), which is ‘to promote the prompt and orderly resolution of litigation’ ...” wrote Justice Pfeifer. “Furthermore, allowing the dismissal to be without prejudice would grant Sisk a better result from an involuntary dismissal than from a voluntary dismissal. The bottom line in this case is that Sisk has utterly failed to comply with the service requirement in Civ.R. 3(A). To allow Sisk to proceed with its case, after twice failing to perfect service within a year, would be a perversion of justice.”
“We are persuaded that the just approach is to assume, as we did in Goolsby v. Anderson Concrete Corp. (1991) ... that an instruction to the clerk of courts to attempt service outside the one-year period in Civ. R. 3(A) is ‘equivalent to a refiling of the complaint.’ ... The attempt to serve the second complaint more than one year after it was filed is equivalent, then, to a refiling of the complaint, which necessarily implies that the second complaint had been dismissed by notice, as in Goolsby. Unlike the plaintiff in Goolsby, however, Sisk has already dismissed his claim once. The subsequent notice dismissal, even if implied, therefore ‘operates as an adjudication upon the merits.’ ... Therefore, we hold that when a plaintiff files an instruction for a clerk to attempt service of a complaint that was filed more than a year prior, the instruction by operation of law is a notice dismissal of the claims, and if the plaintiff had previously filed a notice dismissing a complaint making the same claim, the instruction by operation of law is a second notice dismissal, resulting in dismissal with prejudice of the claims. We reverse the judgment of the court of appeals.”
Justice Pfeifer’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger. Justice Robert R. Cupp concurred in judgment only.
Contacts
Timothy J. Owens, 614.221.3500, for Sisk & Associates Inc.
John P. Slagter, 216.615.7331, for The Committee to Elect Timothy Grendell.
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