Day on Torts Nugget: Reliance on the Savings Statute after a Voluntary Dismissal

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit  in state  to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,
[s]ubject to the provisions of Rule 23.05 or Rule 66 or any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause and serving a copy of the notice upon all parties, and if a party has not already been served with a summons and complaint, the plaintiff shall also serve a copy of the complaint on that party ….

“Tenn. R. Civ. P. 41.01 … requires “serving” a copy of the notice of dismissal on all parties. In addition, it requires the plaintiff to “serve” a copy of the complaint on any party who has not already been served with a summons and complaint.... [S]ervice under Rule 5 is all that is required.... [D]elivery of the notice of dismissal and the original complaint is intended to provide the defendants with notice of the original action and its dismissal and notice that the plaintiff may commence another action within one year; the purpose is not to require the defendant to appear and answer the dismissed complaint. The Rules of Civil Procedure do not require that notices be served like process; they serve different functions.”  Boone vMorris, NoM20020306COAR3CV2004 WL 2254012at *6 (Tenn.Ct.AppOct62004).

Thus, if you decide to take a file for a voluntary dismissal, make sure that complaint, notice of voluntary dismissal and (probably) the order of voluntary dismissal have been served on the defendant.

And, don’t forget:  Tenn. Code Ann. Sec. 20-1-119 is not applicable to suits commenced under the savings statute. Thus, if you rely on the savings statute to avoid a statute of limitations defense, and the defendant in the newly-filed case blames a nonparty who has a statute of limitations defense, Sec. 20-1-119 will not be available to trump a motion to dismiss if you attempt to add the nonparty as a party defendant.


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