Today’s guest post was is a group effort of Betsy Chance, Diana Comes, and Mac Plosser, all at the Butler Snow firm. A little while ago they circulated (we don’t remember exactly how) an earlier version of a 50-state survey they had put together on state tolling statutes that preserve lawsuits that have been dismissed for non-merits reasons. We had encountered this type of tolling before, in mass tort litigation – to see more, particularly involving personal jurisdiction dismissals – so it was of interest to us. After reading it, we asked our colleagues if we could post the survey as a guest blogpost. They agreed, and here is the result. As always, our guest bloggers are 100% responsible for the content of their posts, and deserve all the credit (and any blame) for what follows.
Many jurisdictions have “savings statutes” that are designed to provide a window of opportunity for a plaintiff to re-file a claim that was dismissed for non-merits reasons even if the statute of limitations has run. Such savings provisions vary widely: from no provision at all to saving claims where process has never been served to saving claims that were voluntarily dismissed. The time limits to “save” a claim are also disparate and range from 30 days to three years. Following is a summary of all 50 states’ approaches to savings statutes, providing the statutory basis for such savings statutes along with other helpful information.
No savings statutes: Alabama, Florida, Hawaii, North Dakota, South Carolina, and South Dakota
Six states have no mechanism for preserving claims following a dismissal without prejudice. See Burt v. State, 149 So.3d 1110, 1113 n. 5 (Ala. Crim. App. 2013) (“Alabama does not have a general savings statute or a constitutional savings clause.”); HCA Health Serv. v. Hillman, 906 So.2d 1094, 1098 (Fla. App. 2004) (“Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose case has been dismissed otherwise than on the merits to pursue the action even though the statute of limitations has run.”); Eto v. Muranaka, 57 P.3d 413, 427 (Haw. 2002) (“There is no savings statute in Hawai’i.”); Reid v. Cuprum SA, de C.U., 611 N.W.2d 187, 190 (N.D. 2000); Rink v. Richland Mem. Hosp., 422 S.E.2d 747, 749 (S.C. 1992); Peterson v. Hohm, 607 N.W, 2d 8, 13 (S.D. 2000).
Very limited-scope savings statutes: Michigan, Vermont, and Wisconsin
Michigan does not have a general savings statute, and has a limited savings statute of two years only for wrongful death claims where the claimant dies before the limitations period expired or within 30 days of the expiration. Mich. Comp. Laws § 600.5852. Vermont’s only savings statute applies to claims or criminal prosecutions based on repealed statutory provisions. See 1 Vt. Stat. Ann. §214(b). Wisconsin’s only savings statute concerns the viability of pending actions after repeal of a statute. Wis. Stat. § 990.04.
Less than 6 months: Colorado, Kentucky, Nevada, Oregon, and Texas
Five states have more general savings statutes, but significantly limit the window within which to re-file an action per statute. Colo. Rev. Stat. § 13-80-111 (90 days to re-file an action that was dismissed for lack of jurisdiction or venue, including actions first filed in federal court and recommenced in state court); Ky. Rev. Stat. Ann. § 413.270 (a dismissed action may be re-filed within 90 days of dismissal based on jurisdiction or venue); Nev. Rev. Stat. Ann. § 11.500 (a dismissed claim may be re-filed within the original limitations period or 90 days, whichever is later, only if it is dismissed for lack of subject matter jurisdiction); Or. Rev. Stat. § 12.220 (60 day period for re-filing an action that “is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action” or dismissed for failure to properly effect service and the limitations period has expired); Tex. Civ. Prac. & Rem. Code § 16.064 (plaintiff may re-file a dismissed action within 60 days of dismissal if the action is dismissed for lack of jurisdiction).
Six months: Arizona, Georgia, Iowa, Kansas, Maine, New Mexico, and New York
These seven states have six month general savings statutes with varying conditions. Ariz. Rev. Stat. Ann. § 12-504(A) (six months to re-file a dismissed claim, but the savings statute is discretionary, and plaintiff must establish entitlement to the statutory provision if the claim is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution (see Jepson v. New, 792 P.2d 728, 734 (Ariz. 1990)); Ga. Code Ann. § 9-2-61 (six month savings period to re-file a claim that “the plaintiff discontinues or dismisses”); Iowa Code § 614.10 (six months to re-file a non-merits dismissal, provided the case is not voluntarily dismissed by plaintiff or dismissed for lack of prosecution); Kan. Stat. Ann. § 60-518 (action may be re-filed within 6 months if there is a non-merits dismissal of the claim after the statute of limitations has otherwise expired); 14 Me. Rev. Stat. § 855 (savings clause for cases “defeated for any matter of form” or the death of a party, which can be re-filed within six months); N.M. Stat. Ann. § 37-1-14 (a claim may be re-filed in six months if it was dismissed for any non-merits reason other than failure to prosecute); N.Y.C.P.L.R. § 205 (a claim may be re-filed within six months, unless it is voluntarily dismissed by the plaintiff, for failure to prosecute, for lack of personal jurisdiction over the defendant, or is a claim that is dismissed on the merits).
One year – significant preconditions: Arkansas, California, Connecticut, Delaware, Idaho, Massachusetts, Minnesota, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, and West Virginia
Many states have one year savings statutes containing various legislatively and/or judicially imposed limitations or conditions. See Ark. Code Ann. § 16-56-126(a) (before a plaintiff can take advantage of the one year savings provision, he or she must serve process of the first action, and may only re-file where the limitations period expires between the initial filing and the non-merits dismissal); Del. Code Ann. tit. 10 § 8118 (six circumstances where claims are saved and can be re-filed within one year of a non-merits dismissal, none of which include voluntary withdrawal); Idaho Code § 5-233 (re-filing within one year only when a judgment for plaintiff is reversed on appeal); Mass. Gen. Laws ch. 260, § 32 (one year time period to re-file actions dismissed only for “a matter of form”); Minn. Stat. § 541.18 (one year to re-file a claim that is dismissed for non-merits reasons, including jurisdictional issues, but the plaintiff must establish that the defendant received timely notice of the claim); Mont. Code Ann. § 27-2-407 (one year window to re-file a claim dismissed for non-merits reasons and other than a plaintiff’s voluntary dismissal or failure to prosecute); N.J. Stat. Ann. § 2A:14-28 (one year to re-file a claim where a judgment that was rendered for plaintiff is reversed on appeal or dismissed on post-judgment motion by the court); N.C. Gen. Stat. § 1A-1 (Rule 41A voluntarily dismissed claim may be re-filed within one year of dismissal; no revival of merits-based dismissals, failure to prosecute, or failure to comply with orders of the court; court may specify a shorter period for re-filing); Ohio Rev. Code Ann. § 2305.1 (one year time period to re-file a claim that “fails otherwise than upon the merits” when the limitations period expires during the pendency of the first suit); 12 Okla. Stat. § 100 (plaintiff may re-file a claim dismissed for non-merits reasons within one year of the dismissal, so long as the action is commenced within Oklahoma); 42 Pa. Cons. Stat. § 5535 (terminated actions may be re-filed within a year; excluding personal injury or wrongful death claims, claims that are voluntarily dismissed by plaintiff, dismissed for failure to prosecute or dismissed on the merits); R.I. Gen. Laws § 9-1-22 (action may be re-filed within one year of a non-merits dismissal, provided the dismissal is not voluntary by the plaintiff or for failure to prosecute); W. Va. Code R.§ 55-2-18 (plaintiff may re-file a dismissed action within one year of dismissal if the action was involuntarily dismissed for a non-merits reason but does not apply to voluntary dismissals by the plaintiff or to dismissals based on plaintiff’s negligence).
California’s one-year savings provision is unique in that it provides a one year window to re-file if a judgment for plaintiff is “reversed on appeal other than on the merits.” Cal. Code Civ. Proc. § 355. It was extended by case law to a claim that is voluntarily dismissed, but only if three factors are met: “(1) the trial court erroneously granted the initial nonsuit; (2) dilatory tactics on the part of the defendant ‘prevented disposition of the first action in time to permit a second filing within the [limitations period]’; and (3) the plaintiff had at all times proceeded in a diligent manner.” Dimcheff v. Bay Valley Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004) (quoting Wood v. Elling Corp., 572 P.2d 755, 760 (Cal. 1977)).
Connecticut has two separate savings statutes. One allows the re-filing of claims dismissed for a non-merits failure of the suit within one year, Conn. Gen. Stat. § 52-592 (six months if claim is against executor); the second allows a one year period to re-file if the original suit named the wrong defendant. Conn. Gen. Stat. § 52-593. An original action is deemed “commenced” for purposes of the savings statute when the defendant has effective notice of the action within the one year savings time. Rocco v. Garrison, 848 A.2d 352, 359 (Conn. 2004).
One year – few preconditions: Alaska, Illinois, Mississippi, Missouri, New Hampshire, Tennessee, Utah, and Wyoming
Another eight states allow one year for a plaintiff to refile an action, although the claims covered vary, for a one year time frame without condition. See Alaska Stat. § 09.10.240 (a plaintiff “may commence a new action upon the cause of action within one year of the dismissal or reversal on appeal”); Miss. Code Ann. § 15-1-69 (re-filing within a year if a case is dismissed for a “matter of form,” which has been held to include voluntary dismissal in federal court); Mo. Rev. Stat. § 516.230 (an action dismissed without prejudice may be re-filed “from time to time” within one year); N.H. Rev. Stat. Ann. § 508:10 (an action may be re-filed within one year of any dismissal that does not bar the right of action); Tenn. Code Ann. § 28-1-105 (one year to re-file an action that is dismissed for reasons “not concluding the plaintiff’s right of action”); Utah Code Ann. § 78B-2-111 (plaintiff may re-file a claim once within one year of dismissal other than on the merits); Wyo. Stat. Ann. § 1-3-118 (new action allowed for one year after reversal of judgment or non-merits dismissal).
Illinois has a peculiar situation. A 1995 amendment to 735 Ill. Comp. Stat. 5/13-217 that would have added significant preconditions was a non-severable part of a legislative package struck down as unconstitutional for other reasons in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997). Thus, the pre-1995 version of § 5/13-217, controls, which allows for voluntary dismissals and dismissals for want of prosecution or other procedural reasons to be re-filed within one year or within the original limitation period, whichever is greater without the other conditions added in 1995. See Hudson v. City of Chicago, 889 N.E.2d 210, 214 n.1 (Ill. 2008).
Three years: Indiana
By far the most generous savings statute is Indiana’s, which allows three years to re-file an action. Ind. Code § 34-11-8-1. The only consolation is that the statute does not apply if the action is dismissed for want of prosecution or voluntarily dismissed by plaintiff. Ind. Code § 34-11-8-1(a)(1); Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987).
Miscellaneous: Louisiana, Maryland, Nebraska, Virginia, and Washington
The remaining states have unique savings provisions that resist categorization. While not a savings statute per se, Louisiana provides that the statute of limitations is tolled (“interruption of prescription”) when a suit is filed, and that tolling continues during the pendency of the case. La. Civ. Code Ann. art. 3463. However, such “interruption” is deemed not to have occurred if the plaintiff abandons, voluntarily dismisses or fails to prosecute her claim. “The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption.” Cichirillo v. Avondale Indus., 917 So. 2d 424, 430 (La. 2005).
Maryland does not have a general savings statute, but has two separate savings provisions operating in specific types of actions. Md. Code Ann. Cts. & Jud. Proc. § 5-119 (60 days to re-file a medical malpractice claim when it was dismissed for “failure to file a report in accordance with § 3-2A-04(b)(3) of this article” (i.e., a certificate of a qualified expert) and does not apply to voluntary dismissals by the plaintiff); Md. Rule 2-101 (30 days to re-file in state court if action was dismissed in federal court for want of jurisdiction or under a limitations period under federal law). In Virginia, a plaintiff may re-file an action within one year of a reversal of a judgment for plaintiff that does not preclude a new cause of action. Va. Code Ann. § 8.01-229(E). If a plaintiff voluntarily dismisses her claim, a new action may be brought within 6 months of the dismissal, or within the original statute of limitation, whichever is longer. Id. The savings statute applies whether the original action was filed first in federal court and then in state court or vice versa. Blakely v. Austin-Weston, 348 F. Supp.2d 673, fn 4 (E.D. Va. 2004).
Nebraska and Washington provide a limited mechanism by which a plaintiff’s claim can survive in the event the statutory basis underlying those claims is amended or repealed. See Neb. Rev. Stat. § 49-301 (addressing the viability of claims that are pending at the time the statutory basis for the claims is repealed); Wash. Rev. Code § 10.02.040 (providing that a savings period applies to preserve claims arising under a statutory framework even if the statute is subsequently amended or repealed). These states have no general tolling.
Because of the wide range of rules and limitations among the states, it is crucial that the relevant statutory and common law provisions applicable to voluntary or non-merits-based dismissals be examined in order to assess the propriety of any re-filed claim or the finality of any dismissal without prejudice.