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Finally “Deemed Dismissed” Really Means Dismissed
POSTED SEPTEMBER 6, 2017
A special to USLAW NETWORK and USLAW DigiKnow
By Malinda S. Matlock | Pierce Couch Hendrickson Baysinger & Green , Oklahoma
The Oklahoma Court of Appeals recently issued an opinion declaring that a civil suit not served within 180 days after the filing of the petition is deemed dismissed on the 181st day in the absence of good cause. All 3 judges on the panel concurred in the ruling.
The statute at issue, 12 O.S. Supp. 2013 §2004(I), has been amended several times over the last 30 years to address the time within which a summons must be served and the consequences of not serving summons with the time allowed. 12 O.S. Supp. 2013 §2004(I) provides: “If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice.” Finally, in Thibault v. Garcia, 2017 OK CIV APP 36, __ P.3d __, an Oklahoma appellate court has addressed this issue in a reported opinion.
In Thibault, the plaintiff filed his lawsuit on September 4, 2013 alleging that Garcia was negligent and he was injured as result of an automobile accident. Plaintiff did not cause summons to issue and 550 days later on March 19, 2015, Garcia filed a special appearance and motion to dismiss. Garcia argued that dismissal was required pursuant to 12 O.S Supp. 2013 §2004(I) because plaintiff failed to serve the suit within 180 days and did not have good cause for delay. Specifically, Garcia argued that the petition should be deemed dismissed as of March 4, 2014, the 181st day after the petition was filed. The court agreed the case warranted dismissal without prejudice to refiling within 1 year under the savings statute, but in its Journal Entry stated that the effective date of the dismissal was the date of the court’s ruling: April 15, 2015. Garcia appealed the correctness of the effective date of the dismissal.
The Oklahoma Court of Civil Appeals found that the statutory language “shall be deemed dismissed” is “clear” and that an action is dismissed on the 181st day if Plaintiff fails to serve any defendant within 180 days without showing good cause for the failure to serve. Thus, Plaintiff now cannot refile because the date of the dismissal without prejudice is in excess of the 1 year allowed in the savings statute.
It is not frequent, but certainly not uncommon, for a civil suit to be filed just within a statute of limitations deadline and then not be served for a prolonged period of time. Plaintiffs fail to serve summons within 180 days (6 months) most often because the case is temporarily forgotten. But as time continues to go by, memories of events become distant and witnesses are lost. Thibault will give district courts the support needed to grant motions to dismiss that should have been granted since §2004 was modified in 2013.