Stare v. Pearcy

617 F.2d 43
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 4, 1980
DocketNos. 75-2331, 78-1033
StatusPublished
Cited by19 cases

This text of 617 F.2d 43 (Stare v. Pearcy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stare v. Pearcy, 617 F.2d 43 (4th Cir. 1980).

Opinions

HAYNSWORTH, Chief Judge:

Giving West Virginia’s “savings statute” permitting the commencement of a new action after dismissal of a previous action without resolution of the merits a narrow reading, the district judge dismissed this action on the ground that West Virginia’s two-year statute of limitations had run before the action’s commencement. We think the savings statute should receive a broader construction and reverse.

The plaintiffs, husband and wife and citizens of Ohio, received personal injuries when their automobile was involved in a collision in West Virginia with an automobile being driven by the defendant. After the passage of many months, but before the expiration of the two-year period prescribed for personal injury actions both in Ohio and in West Virginia, the plaintiffs filed an action in the United States District Court for the Northern District of Ohio, seeking damages from the defendant for their personal injuries. The defendant, a citizen and resident of West Virginia, promptly received a copy of the complaint, and she objected that there was no personal jurisdiction over her in the Northern District of Ohio. For want of personal jurisdiction over the defendant, the Ohio action was dismissed, but by this time the two-year limitations period had expired.

The plaintiffs then filed an action in the Northern District of West Virginia where personal jurisdiction of the defendant was obtained.

That action in the Northern District of West Virginia was dismissed, however, on the ground that more than two years had elapsed' since the plaintiffs suffered their injuries.1 The district court held that the West Virginia statute permitting the filing of a second action within twelve months of the dismissal of an earlier action upon grounds which would not preclude the filing of a second action would not apply if the first action was in a court outside the State of West Virginia.

The plaintiffs then commenced a third action, this time in the United States District Court for the Northern District of Ohio and moved for its transfer from the Northern District of Ohio under the provisions of 28 U.S.C.A. § 1406(a). The transfer was ordered, but the district court for the Northern District of West Virginia again dismissed the action on the basis of West Virginia’s statute of limitations and without reference to Ohio’s savings statute.

We need not consider whether the transfer of the third action from the Northern District of Ohio to the Northern District of West Virginia carried with it Ohio’s savings statute, for we think the second action filed initially in the Northern District of West Virginia was saved by West Virginia’s savings statute.

There are a number of cases applying a “general rule”2 that such a savings statute does not apply if the original suit was commenced in another forum or jurisdiction.3 In none of those cases, however, is there any reasoned explanation for such a rule. They suggest no rational basis for a distinction, saving a second case if the plaintiffs’ first frustrated effort was commenced in [45]*45one forum but not if it was commenced in another. The only suggestion in any of those cases that we have seen is that the commencement of an action in a foreign forum is not controlled by the statute of limitations of the state in which the second action is filed. Of course, there would be a problem if the statute of limitations in the state of first filing was longer than that of the state of second filing and the period of the latter statute had run when the foreign action was first filed, but that is a problem which should be capable of resolution under principles of conflict of laws, or, more likely, by construing the savings statute as applying only when the first action was commenced within the period limited by the statute of the forum state. There is, of course, no such problem here for Ohio and West Virginia both prescribed a two-year period of limitations for this kind of tort action, and the first Ohio action was commenced before the expiration of the West Virginia statutory period. And, of course, it simply is untrue that the statute of limitations of a given state never controls the commencement of actions in foreign forums.

The “general rule” is not universal. There are cases going the other way.4 These cases simply reflect a different philosophical approach to the problem. They give to savings statutes a liberal construction to serve their intended purpose to save good causes of action after the abortion of an earlier proceeding, and such a construction is entirely consistent with the whole statutory scheme of time limitations upon commencement of actions. The defendant here was informed of the commencement of the action in the Northern District of Ohio and received a copy of the complaint. The notice that she thus received that the plaintiffs were seeking judicial enforcement of their claims was no less in kind or quality than it would have been if the first action had been filed in a court in West Virginia, though later aborted. If the claim cannot be said to be stale if the first action had been filed in West Virginia, there is no greater reason to find that it was stale because filed in the Northern District of Ohio. The defendant must defend on the merits the claim of the children. There is no intrinsic unfairness to her in requiring that she also defend on the merits the claims of the parents.

West Virginia’s savings statute (§ 55-2-18) is broadly written. In pertinent part it provides:

If any action or suit commenced within due time . . . should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of such cause having been dismissed for want of security for costs, or by reason of any other cause which could not be pled in bar of an action or suit . . the same may be brought within one year after such . dismissal ... or after such arrest or reversal .

A normal reading of its language will not distinguish between a first action commenced in the Northern District of Ohio and a first action commenced in the Northern District of West Virginia. That West Virginia would not insist that the first action must have been filed in a West Virginia state court is clearly demonstrated by Tompkins v. Pacific Mut. Life Ins. Co., 52 W.Va. 479, 44 S.E. 439 (1903). There, the first action had been commenced in the old United States Circuit Court for West Virginia and had been dismissed for want of jurisdiction. The West Virginia Supreme Court of Appeals held that the savings statute permitted the filing of a second action in a West Virginia state court within one year after the dismissal of the federal action. The principal objection in Tompkins, however, was not that the first action had not been commenced in a West Virginia state court, but that it had been commenced in a court without jurisdiction to entertain it. That objection was rejected, and the [46]*46court held that West Virginia’s savings statute was entitled to a liberal interpretation. After referring to some cases going the other way, it said:

“Our statute seems to be somewhat broader, or, to say the least, more positive and affirmative in the expression of the width of its scope, than any of the other statutes; . . . .

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Bluebook (online)
617 F.2d 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stare-v-pearcy-ca4-1980.