Ohio’s Savings Statute Cannot Be Applied To Cases Initially Filed In Another State’s Federal Court

Ohio’s Savings Statute
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Ohio’s saving statute, R.C. 2305.19, permits a plaintiff whose claims are filed within the applicable statute of limitations, but then dismissed otherwise on merits, to refile their claims within one year. Courts have noted the forgiving nature of the statute, explaining that it “is a remedial statute and is to be given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure.” Vitantonio v. Baxter, 2006 WL 847229, 2006-Ohio-1685 (11th Dist. 2006).

Recently, in Portee v. Cleveland Clinic Foundation, 2018 WL 3913661, 2018-Ohio-3263, the Ohio Supreme Court considered how liberally the savings statute should be construed, determining whether, when a party initially files their action in federal court in another state, and the case fails otherwise than on the merits, the savings statute can be utilized to timely refile the action in an Ohio state court.

In Portee, an Indiana resident traveled to the Cleveland Clinic to have surgery on her elbow. Complications required that she have a second surgery. On October 2, 2013, she filed a medical malpractice action in the United States District Court for the Southern District of Indiana against the Cleveland Clinic and several of its doctors. On July 28, 2014, the court dismissed the action for lack of personal jurisdiction.

Less than a year later, on July 17, 2015, the plaintiff refiled the action in an Ohio state court. The Cleveland Clinic moved to dismiss the action, arguing that the savings statute applied only to cases which were originally filed in an Ohio state court, relying on Howard v. Allen, 30 Ohio St.2d 130, 283 N.E.2d 167 (1972). In Howard, the court held “[a] suit in another state can no more toll the Ohio statute, applicable to suits in Ohio, than an unexpired claim under the statute of another state can operate to lift the statute of limitation and thereby make the saving clause available.” The trial court adopted the reasoning of Howard and dismissed the action.

The Eighth District Court of Appeals reversed, reasoning that “R.C. 2305.19 permits a plaintiff, ‘[i]n any action that is commenced,’ to refile his or her case within one year after the action has failed otherwise than upon the merits, even if the applicable statute of limitations has expired” and “does not specify in which court an action must be commenced for the savings statute to apply.” Portee v. Cleveland Clinic Foundation, 2017-Ohio- 1053, 80 N.E.3d 556, 7-8. The court distinguished the holding in Howard on the basis that that the court in that case was concerned with cases first filed in state courts, not federal courts. The court also referenced the strong policy considerations behind the savings statute, relying on Kinney v. Ohio Dept. of Adm. Servs., 30 Ohio App.3d 123, 126, 507 N.E.2d 402 (10th Dist.1986), in which the court stated “we are in accord with the view expressed by Chief Justice Weygandt concerning the savings statute. He stated the statute is “broad and unambiguous” and should be “liberally construed in order that controversies be decided upon important substantive questions rather than upon technicalities of procedure.”

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The Ohio Supreme Court reversed, looking to the Ohio Civil Rules of Procedure for guidance and expanding its earlier holding in Howard. The court referenced its reasoning in Howard, holding that the rules did not intend for “an action filed in a foreign state be considered “commencement” or “attempted commencement” for purposes of applying Ohio procedural law.” In so finding, the court reasoned that Civ.R. 3(A) defines “commencement” as “(1) filing a complaint with the court and (2) obtaining service within one year from the filing.” It went on to state that “the word “court,” as used in Civ.R. 3(A) refers to an Ohio court, since Rule 1(A) provides that the Ohio Rules of Civil Procedure be limited to “courts of this state.” Portee at 12, quoting Howard at 135.

Justice Kennedy dissented, arguing that “[t]he saving statute applies to “any action.” Portee at 42. He noted that “[b]ecause any action includes all actions and every action, it necessarily applies to actions commenced in other states, whether in state or federal court. We would have to add language to the saving statute to limit it to ‘any action that is commenced, or attempted to be commenced,’ in Ohio.”

Ultimately, the court’s holding expressly expanded its earlier pronouncement in Howard, meaning that any case filed in another state’s court, or in a federal court of another state, cannot utilize Ohio’s savings statute, R.C. 2305.19, to later refile the action in an Ohio state court. Jim Timmerberg 

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