The Oklahoma Supreme Court Finds that Statutory Language Requiring that an Unserved Petition be “Deemed Dismissed” after 180 Days Does Not Mean What You Might Think
By John C. Lennon
May 4, 2019
Since 1984, legal actions in Oklahoma have been considered legally “commenced” upon the filing of a Petition; service of process no longer marks an action’s beginning. But, naturally, a defendant may not know about the filing of a Petition (which is largely why service of process is required in the first place). Interesting statute of limitations issues have thus required litigation in the last thirty-five years. Oklahoma Statute 12 O.S. § 2004 (I), provides that “[i]f service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff has not shown good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice.” Last week, in Cole v Josey, 2019 OK 39, the Oklahoma Supreme Court effectively overruled the Oklahoma Civil Court of Appeals’ opinion in Thibault v. Garcia, 2017 OK CIV APP 36, 398 P.3d 331, which had held in interpreting this statute that the refiling period began on the 181st day after filing an unserved Petition, not the date of any subsequent written order memorializing the “deemed” dismissal.
In Cole, the Court found that the “deeming” language in § 2004(I) does not trigger statute 12 O.S. § 100, the one year “savings statute,” which effectively extends a Plaintiff’s limitations period to timely refile after a dismissal not on the merits (including dismissal without prejudice for failure to timely effect service). The Court emphasized regarding unserved Petitions that an “[a]ction by a court is still needed to bring finality and begin the running of the one year ‘savings statute’ period for refiling. To hold otherwise could prevent a plaintiff’s right to appeal the dismissal.” Id. at ¶16. While not at issue in Cole, the Court noted for future litigants that if an appeal is made then “finality” of the order is extended to the day after the appeal is final.
The Court recognized that its previous decision in Mott v. Carlson, 1990 OK 10, 786 P.2d 1247, contained language seeming to indicate that, per § 2004(I), the effective date of dismissal is the 181st day after filing the petition without service. Id. at ¶9. The Court also discussed that the legislature did not define “deemed dismissed” before concluding that the best interpretation of that phrase is that “after the expiration of the 180 days under § 2004(I), grounds for dismissal have ripened.” (emphasis added). While the Court felt the issues in Cole were distinguishable from the Mott decision, which did not specifically address refiling under § 100, it held that to the extent one may interpret Mott as supporting the 181st day rule, it is overturned by this opinion. Id. at ¶17.
Clearly, now a written order is required to “trigger” the running of the one year period set forth in the savings statute. In practice, however, there may still be some unanswered questions. For instance, where the defendant has no actual notice that a petition has been filed and does not move by special appearance for a final order dismissing the action after the 181st day, how long after a plaintiff files the first petition will the claim remain timely as to applying title 12 O.S. § 100? It appears that Cole has the effect of extending this time period indefinitely. In theory an action could be commenced, then a decade or more could pass before a dismissal is entered; yet a subsequent action would still be timely so long as commenced within a year of the dismissal. Meanwhile the defendant might never have learned that there was even the possibility he or she would be sued. While certainly some courts may, through the entry of sua sponte dismissals, or through the setting of disposition dockets, cut down on this possibility, there is no statutory or other requirement that they do so. A defendant’s protection from such a “zombie” suit, if any, will have to be found through some other mechanism.
Our experienced attorneys can help recommend strategies regarding this issue and other procedural rules as they evolve and develop. Please do not hesitate to contact us.