By Richard C.O. RezieThe Supreme Court of Ohio ruled today, July 24, 2024, that plaintiffs may be entitled to use the Ohio Savings Statute, R.C. 2305.19 more than once under certain circumstances. See McCullough v. Bennett, Slip Op’n No. 2024-Ohio-2783 (July 24, 2024).
The McCullough case arose from a motor vehicle accident. The Trial Court dismissed the plaintiff’s original complaint without prejudice after the plaintiff could not obtain service of process over the defendant. The plaintiff re-filed his lawsuit within the original limitation period and obtained service over the defendant. After the defendant failed to answer, the Trial Court instructed the plaintiff to file a motion for default judgment. When the plaintiff failed to do so, the Trial Court dismissed the plaintiff’s second complaint for want of prosecution, but again did so without prejudice. The plaintiff filed a third complaint, after the original two-year statute of limitations had expired, but within one year of the second dismissal.
The defendant sought to dismiss the third complaint, asserting that the Ohio Savings Statute, R.C. 2305.19, could only be used once, and therefore could not be used to re-file a third time after the dismissal of the second complaint. The Supreme Court disagreed, finding the express language of the Ohio Saving Statute to have no such limitation and to apply. Because the plaintiff filed his third complaint within one year of the failure of his second complaint otherwise than upon the merits, the plaintiff could proceed on the third complaint. The Supreme Court found that there was no concern raised over plaintiffs extending a statute of limitations indefinitely because (1) “Under the double-dismissal rule of Civ. R. 41(A)(1), a plaintiff’s voluntary dismissal acts as ‘an adjudication on the merits of any claim that has once been dismissed in any court”; and, (2) Civ. R. 41(A)(2) “should not be used to circumvent the limitations of Civ. R. 41(A)(1)” to be enforced by the trial court “appropriately preclud[ing] abusive refilings by specifying that any dismissal under Civ. R. 41(A)(2) is with prejudice.” McCullough, 2024-Ohio-2783, ¶ 21-22.
Multiple uses of the Ohio Savings Statute will be allowed only in those instances in which a court disposes of a matter for reasons other than upon the merits, i.e., without prejudice. This decision will not allow plaintiffs to voluntarily dismiss their lawsuits on their own over and over again to extend the statute of limitation indefinitely. As the Supreme Court recognized in this decision, the provisions of the Ohio Rules of Civil Procedure already exist to protect against that. Still, practitioners and litigants should be aware of this important development as it may impact the prosecution or defense of civil litigation.