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Action Commenced When Complaint Filed, Despite Clerk’s Improper Delay in Serving Defendant
2005-0556. Seger v. For Women, Inc., 2006-Ohio-4855.
Hamilton App. No. C-040317, 2005-Ohio-528. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton and Lanzinger, JJ., concur.
O'Connor and O'Donnell, JJ., concur separately.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4855.pdf
(Oct. 4, 2006) In a unanimous decision, the Supreme Court of Ohio held today that a clerk of court's failure to immediately serve the defendants in a civil action with a copy of the plaintiff's complaint is not grounds for dismissal of the complaint, so long as the complaint was filed timely and service is accomplished within one year after the filing date. In its ruling, however, the Court emphasized that clerks of court are required to serve defendants with a copy of a complaint “forthwith,” (without delay), and do not have discretion to grant a request for delayed service.
The case involved surgical patient Lynn Seger of Cincinnati, who filed a malpractice suit against the For Women, Inc. gynecology practice, Good Samaritan Hospital and individual physicians whom Seger alleged were responsible for negligent damages arising from her surgery. The statute of limitations for commencing Seger's lawsuit expired on March 29, 2003. On March 27, 2003, attorneys for Seger filed her malpractice complaint in the Hamilton County Court of Common Pleas, but specifically directed the clerk not to serve a copy of her petition on the defendants until they contacted the clerk to request that service be made. Five months later, in August 2003, Seger's counsel notified the clerk that they wished service to be made, and the defendants were served with copies of the complaint on August 22.
The defendants filed a motion with the trial court seeking dismissal/summary judgment in their favor. They argued that Seger's malpractice action was barred by the statute of limitations because she had not commenced it by both filing a complaint with the court and serving copies on the defendants by the March 29, 2003 statutory deadline. The trial court agreed, and dismissed Seger's claim as having not been timely commenced.
On review, the 1st District Court of Appeals reversed the trial court and ordered it to reinstate and hear Seger's malpractice claim. The appellate panel held that, under Rule 3(A) of the Ohio Rules of Civil Procedure, all Seger was required to do in order to timely commence her lawsuit was to file a petition with the court within the statutory period, and insure that service was made on the defendants within one year after making that filing. Since both those requirements were met in this case, the court of appeals ruled that Seger's claim remained valid.
Writing for the Supreme Court in today's decision, Justice Paul E. Pfeifer affirmed the court of appeals' ruling reinstating Seger's claim. He noted that Rule 3(A) explicitly states that a suit is “commenced” by the plaintiff's filing of a petition with the clerk of courts within the statutory period, “if service [of the complaint on the defendant(s)] is obtained within one year from such filing.” Since Seger filed her complaint two days before the statutory deadline, and the defendants were served with copies of the complaint within the following 12 months, Pfeifer said the rule's requirements were met.
Justice Pfeifer acknowledged that Civil Rule 4(A) requires that, upon the filing of a complaint, a clerk of courts “shall forthwith issue a summons for service upon each defendant listed (in the complaint).” He noted, however, that this rule imposes a duty on the clerk of courts, rather than on the plaintiff who filed the complaint.
“The fact that the clerk has a ‘DO NOT SERVE' rubber stamp suggests that it is common practice in Hamilton County to serve complaints other than ‘forthwith',” Justice Pfeifer wrote. “Though we cannot condone this general practice or the specific actions of the clerk in this case, this failure of the clerk is not grounds for dismissal of Seger's complaint.”
Chief Justice Thomas J. Moyer and Justices Alice Robie Resnick, Evelyn Lundberg Stratton, and Judith Ann Lanzinger joined Justice Pfeifer's opinion. Justices Maureen O'Connor and Terrence O'Donnell entered separate concurring opinions.
Justice O'Connor noted in her concurrence that there was no prejudice to the defendants in this case arising from the delay in service because they had received a “180-day letter” from Seger advising them that she planed to file a malpractice action. She also admonished Ohio attorneys who file civil actions and clerks of the state's trial courts that the facts of this case indicate an “apparent practice that disregards the mandates of the Civil Rules.”
Justice O'Connor wrote that Civil Rule 4(A) “explicitly requires the clerk to serve the complaint upon all listed defendants immediately and without delay and gives the clerk no discretion to suspend that service. … Further, a clerk has no discretion in carrying out the duties of the office; he or she is merely an arm of the court he or she serves.” While attorneys and clerks may not have understood the impropriety of requesting or granting delays in service prior to today's decision, Justice O'Connor observed, “members of the bar should be on notice that an attorney may violate (Disciplinary Rule) 7-102(A)(2) by requesting suspension of service because he would be knowingly encouraging action that is ‘unwarranted under existing law.'”
In his concurrence, Justice O'Donnell further emphasized that while a clerk of courts may wish to accommodate an attorney's request to delay service, clerks have no such discretion under the current Rules of Civil Procedure. He noted that if members of the bar feel strongly about the need to delay service of complaints upon defendants, “they may seek to change the rule by appropriate request to this Court.”
Contacts
Stephanie P. Franckewitz, 513.576.1060, for
Women, Inc., et al.
Daniel G. Spraul, 513.721.8210, for Lynn Seger.
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