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Day on Torts Nugget: Proper Way to Draft a New Complaint After a Voluntary Dismissal

Sometimes, a voluntary dismissal under Rule 41 of the Tennessee Rules of Civil Procedure is required and appropriate but the plaintiff wishes to re-file the case within the time permitted by the “savings statute”  (Tenn. Code Ann. Sec. 28-1-105).

What do you allege to avoid the risk of the defendant filing a motion to dismiss for failure to comply with the applicable statute of limitations?

Let’s use a hypothetical to demonstrate the point.  Plaintiff is injured in a car crash on December 27, 2017.  Plaintiff files suit against Defendant on August 14, 2018.  Plaintiff needs to voluntarily dismiss the case, and does so by order dated April 20, 2019.  The case is one to which the “savings statute” applies.

Plaintiff re-files the case on July 5, 2019, well within the one year period provided by the “savings statute” but well outside of the original statute of limitations.

This is one example of how to properly plead these facts in the complaint.   After identifying the parties, the complaint can make the following allegations:

3. As will be described in more detail below, Plaintiff and Defendant were in a car wreck on December 27, 2017 in Davidson County, Tennessee

4.  On August 14, 2018, Plaintiff filed suit against Defendant in the Circuit Court for Davidson County, Tennessee, Case No. 17-0614 (hereinafter “No. 17.0614”).

5.  Defendant was timely served with a copy of complaint and summons in No. 17-0614.

6.  Defendant filed an answer in No. 17-0614 on September 28, 2018.

7.  Plaintiff gave notice, under Rule 41 of the Tennessee Rules of Civil Procedure, of a voluntary dismissal without prejudice in No. 17-0614 on April 10, 2019.

8.  On April 20, 2019, the Circuit Court for Davidson County, Tennessee entered an Order dismissing No. 17-0614 without prejudice.

9.  A copy of the Court’s order referenced in Paragraph 8 is attached hereto as Exhibit A.

10.  This action was filed within one year of the entry of the Order attached hereto as Exhibit A.

 

Allegations similar to these will put forth the facts you need (and maybe a few extra facts) to state on the face of your new complaint that you have timely filed your the new complaint.  If the defendant admits these facts in the answer to the new action, you have successfully avoided a statute of limitations defense and extensive motion practice.

To be sure, if you do not do it this way you will almost certainly be able to amend you new complaint and fix the problem.  But, there is no need to go to that trouble or expense when you can simply add a few more paragraphs to the new complaint and address the issue head-on.

There is one additional thing you can do to quickly identify any problem with the filing date: add an interrogatory to require the defendant to set forth any facts upon which it failed to admit any allegation in (using the example above) Paragraphs 3 – 10 of the example.

Finally, make sure you double-check the operative dates you intend to include in your new complaint.  Doing so will reduce the likelihood of a denial of one or more paragraphs, which will increase your stress and cause more hassle.

 

 

 

 

 

 

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