Many jurisdictions have “savings statutes” that are designed to provide a window of opportunity for a plaintiff to re-file a claim that was dismissed for non-merits reasons. The availability of such savings provisions varies widely from no provision at all to including claims where process has never been served or claims that were voluntarily dismissed. The time limits to be “saved” are also disparate and range from 90 days to three years. Following is a survey of all 50 states, providing the statutory basis for such savings statutes along with other helpful information.
“Alabama does not have a general saving statute or a constitutional savings clause.” Burt v. State, 149 So.3d 1110, fn. 5 (Ala. Crim. App. 2013).
Alaska Stat. § 09.10.240 provides that a plaintiff “may commence a new action upon the cause of action within one year after the dismissal or reversal on appeal.” Mere filing of the initial action without notice or service of process is sufficient. Am. Marine Corp. v. Sholin, 295 P.3d 924, 927 (Alaska 2013).
Ariz. Rev. Stat. Ann. § 12-504(a) allows six months to re-file a dismissed claim. But, if the claim is terminated by abatement, voluntary dismissal by order of the court, or dismissal for lack of prosecution, the savings statute is discretionary, and plaintiff must establish entitlement to the statutory provision. Jepson v. New, 792 P.2d 728, 734 (Ariz. 1990).
Ark. Code Ann. § 16-56-126(a) includes a one-year period to save a claim. A plaintiff must serve process of the first action in order to use this provision; and it applies only where the limitations period expires between the initial filing and the nonmerits dismissal. Tucker v. Sullivant, 370 S.W.3d 812, 814-815 (Ark. 2010).
Cal. Code Civ. Proc. § 355 provides a one-year window to re-file if a judgment for plaintiff is “reversed on appeal other than on the merits.” It was extended by case law to a claim that is voluntarily dismissed, but only if three factors are met: “(1) the trial court erroneously granted the initial nonsuit; (2) dilatory tactics on the part of the defendant ‘prevented disposition of the first action in time to permit a second filing within the [limitations period]’; and (3) the plaintiff had at all times proceeded in a diligent manner.” Dimcheff v. Bay Valley Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004) (quoting Wood v. Elling Corp., 20 Cal. 3d 353, 361 (Cal. 1977)).
Colo. Rev. Stat. § 13-80-111 affords 90 days to re-file an action that was dismissed for lack of jurisdiction or venue, including actions first filed in federal court and recommenced in state court. Multiple filings within the 90-day window are permitted. Sharp Bros. Contracting Co. v. Westvaco Corp., 817 P.2d 547, 551 (Colo. Ct. App. 1991).
There are two separate savings statutes. One allows the re-filing of claims dismissed for a non-merits failure of the suit within one year, Conn. Gen. Stat. § 52-592 (six months if claim is against executor); the second allows a one-year period to re-file if the original suit named the wrong defendant. Conn. Gen. Stat. § 52-593. An original action is deemed “commenced” for purposes of the savings statute when the defendant has effective notice of the action within the one-year savings time. Rocco v. Garrison, 848 A.2d 352, 359 (Conn. 2004).
Del. Code Ann. tit. 10 § 8118 creates six circumstances where claims are saved and can be re-filed within one year of a non-merits dismissal. Voluntary withdrawal of a complaint does not constitute a dismissal for any matter of form, and the savings statute does not apply to such claims. Graleski v. ILC Dover, 26 A.3d 213 (Del. 2011).
“Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose case has been dismissed otherwise than on the merits to pursue the action even though the statute of limitations has run.” HCA Health Serv. v. Hillman, 906 So.2d 1094, 1098 (Fla. Dist. Ct. App. 2004).
Ga. Code Ann. § 9-2-61 includes a six-month savings period to re-file a claim that “the plaintiff discontinues or dismisses.” This statute forbids successive re-filings. Ga. Code Ann. § 9-2-61(a).
“There is no savings statute in Hawaii.” Eto v. Muranaka, 57 P.3d 413, 427 (Haw. 2002).
Idaho permits the re-filing of an action within one year only when a judgment for plaintiff is reversed on appeal. Idaho Code § 5-233. This provision applies only when the original action is timely filed. Steinour v. Oakley State Bank, 287 P. 949 (Idaho 1930).
The savings statute contains a one-year provision allowing a claim to be re-filed if it was dismissed for procedural reasons. 735 Ill. Comp. Stat. 5/13-217. The statute expressly does not apply where a plaintiff voluntarily dismisses his claim or where it is dismissed for lack of prosecution. Only one re-filing pursuant to the statute is permitted. Evans ex rel. Evans v. Lederle Labs., 167 F.3d 1106, 1110 (7th Cir. 1999).
Ind. Code § 34-11-8-1 provides a three-year period to re-file an action. The statute does not apply if the action is dismissed for want of prosecution or voluntarily dismissed by plaintiff. Ind. Code § 34-11-8-1(a)(1); Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. Ct. App. 1987).
Iowa allows six months to re-file a non-merits dismissal, provided the case is not voluntarily dismissed by plaintiff or dismissed for lack of prosecution. Iowa Code § 614.10; Furnald v. Hughes, 804 N.W.2d 273 (Iowa 2011). Successive re-filings are not permitted. Veatch v. Bartels Lutheran Home, 804 N.W.2d 530, 537 (Iowa Ct. App. 2011).
An action may be re-filed within six months if there is a non-merits dismissal of the claim after the statute of limitations has otherwise expired. Kan. Stat. Ann. § 60-518. Examples of non-merits dismissals include denial of class certification for lack of numerosity; dismissal for failure to file an amended petition following a partially successful motion for a more definite statement; dismissal without prejudice; and dismissal for voidable service of process. Rogers v. Williams, Larson, Voss, Strobel & Estes, 777 P.2d 836, 838-839 (Kan. 1989).
Ky. Rev. Stat. Ann. § 413.270 allows a dismissed action to be re-filed within 90 days of dismissal based on jurisdiction or venue. Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162, 164-165 (Ky. 2007).
While not a savings statute per se, Louisiana provides that the statute of limitations is tolled (“interruption of prescription”) when a suit is filed, and that tolling continues during the pendency of the case. La. Civ. Code Ann. art. 3463. However, such “interruption” is deemed not to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute her claim. “The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption.” Cichirillo v. Avondale Indus., 917 So. 2d 424, 430 (La. 2005).
The savings statute is applicable to cases “defeated for any matter of form” or the death of a party, which can be re-filed within six months. 14 Me. Rev. Stat. § 855. Excusable failure to serve as well as jurisdiction and venue issues fall within the savings statute. Brown v. Thaler, 2006 WL 2959682 (Me. Super. Ct. July 21, 2006).
Maryland does not have a general savings statute. Levasseur v. Ekuno, 2016 WL 392419 (Md. Ct. Spec. App. Feb. 2, 2016). There are two separate savings provisions. Maryland Code Ann. Cts. & Jud. Proc. § 5-119 provides 60 days to re-file a medical malpractice claim when it was dismissed for “failure to file a report in accordance with § 3-2A-04(b)(3) of this article” (i.e., a certificate of a qualified expert) and does not apply to voluntary dismissals by the plaintiff. Maryland Rule 2-101 allows plaintiff 30 days to re-file in state court an action that was dismissed in federal court for want of jurisdiction or under a limitations period under federal law.
Mass. Gen. Laws ch. 260, § 32 provides a one-year time period to re-file an action dismissed for “a matter of form.” The statute applies to pendent claims dismissed in a federal court. Liberace v. Conway, 574 N.E. 2d 1010 (Mass. App. Ct. 1991).
Michigan does not have a general savings statute. It does have a limited savings statute of two years for wrongful death claims where the person dies before the limitations period expired or within 30 days of the expiration. Mich. Comp. Laws § 600.5852.
Minnesota Stat. § 541.18 allows one year to re-file a claim that is dismissed for non-merits reasons, including jurisdictional issues. A plaintiff must establish that the defendant received timely notice of the claim. Kulinski v. Medtronic Bio-Medicus, 577 N.W.2d 499, 504 (Minn. 1998).
If a case is dismissed for a “matter of form,” it may be re-filed within one year of dismissal. Miss. Code Ann. § 15-1-69. A voluntary dismissal without prejudice in federal court was considered a matter of form where it was based on subject matter jurisdiction. Marshall v. Kan. City S. Rys., 7 So. 3d 210 (Miss. 2009).
Missouri Rev. Stat. § 516.230 permits an action dismissed without prejudice to be re-filed within one year. The statute provides that the action may be commenced “from time to time,” which allows multiple re-filings within the one-year savings period. Foster v. Pettijohn, 213 S.W.2d 487, 490 (Mo. 1948).
Montana’s savings statute includes a one-year window to re-file a claim dismissed for non-merits reasons and other than a plaintiff’s voluntary dismissal or failure to prosecute. Mont. Code Ann. § 27-2-407.
Nebraska’s only savings statute concerns the viability of claims that are pending at the time the statutory basis for the claims is repealed. Neb. Rev. Stat. § 49-301.
A dismissed claim is covered by the savings statute only if it is dismissed for lack of subject matter jurisdiction. Nev. Rev. Stat. Ann. § 11.500. The refiling must occur within the original limitations period or within 90 days of the dismissal, whichever is later.
An action may be re-filed within one year of any dismissal that does not bar the right of action. N.H. Rev. Stat. Ann. § 508:10. A voluntary non-suit does not bar a right of action. Milford Quarry & Constr. Co. v. Boston & M. R.R., 97 A. 982 (1916).
New Jersey Stat. Ann. § 2A:14-28 includes one year to re-file a claim where a judgment that was rendered for plaintiff is reversed on appeal or dismissed on post-judgment motion by the court. The statute is not applicable where the plaintiff has not recovered a judgment. Zaccardi v. Becker, 88 N.J. 245, 263 n.3 (N.J. 1982).
If a claim is dismissed for any non-merits reason other than failure to prosecute, it may be re-filed within six months of the dismissal. N.M. Stat. Ann. § 37-1-14. To be afforded the protection of Section 37-1-14 when commencing an action, “the plaintiff must choose a forum that arguably has the power to decide the matter involved.” Foster v. Sun Healthcare Group, Inc., 284 P.3d 389, 394 (N.M. Ct. App. 2012).
The savings statute allows a claim to be re-filed within six months. N.Y.C.P.L.R. § 205. This provision does not apply to claims that are voluntarily dismissed by the plaintiff, for failure to prosecute, for lack of personal jurisdiction over the defendant, or for claims that are dismissed on the merits. Where first action was in court of another state, the statute applies only where that action was brought within the time limited for such action by the law of New York. De Luca v Atlantic Refining Co., 176 F.2d 421 (2d Cir. 1949).
A voluntarily dismissed claim may be re-filed within one year of dismissal. N.C. Gen. Stat. § 1A-1, Rule 41. This does not apply to merits-based dismissals, failure to prosecute, or failure to comply with orders of the court. Id. In addition, in any order of dismissal, the court may specify a shorter period for re-filing. Id. A voluntary dismissal under federal rule 41 in a non-diversity case does not toll the statute of limitations or implicate the savings provision of N.C. Rule 41(a). Harter v. Vernon, 532 S.E.2d 836, 841 (N.C. Ct. App. 2000).
North Dakota has not enacted a savings statute and has not judicially adopted the doctrine. Reid v. Cuprum SA, de C.U., 611 N.W.2d 187, 190 (N.D. 2000).
Ohio Rev. Code Ann. § 2305.1 contains a one-year time period to re-file a claim that “fails otherwise than upon the merits.” In order to invoke this provision, the limitations period must expire during the pendency of the first suit. Id. The statute does not apply to protect actions originally filed in other states. Monroe v. Stop-N-Go Food Stores, 631 N.E.2d 1138 (Ohio Ct. App. 1993).
A plaintiff may re-file a claim dismissed for non-merits reasons within one year of the dismissal. 12 Okla. Stat. § 100. The right to re-file is limited to actions commenced within the State of Oklahoma. Morris v. Wise, 293 P.2d 547 (Okla. 1955). The statute permits only one re-filing. Hull v. Rich, 854 P.2d 903, 904 (Okla. 1993).
Oregon Rev. Stat. § 12.220 contains a 60-day period for re-filing an action that “is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action.” A claim may also be refiled if it is dismissed for failure to properly effect service and the limitations period has expired. Id. This applies to claims originally filed in federal court and dismissed for lack of jurisdiction that are re-filed in state court. Hatley v. Truck Ins. Exchange, 494 P.2d 426, 429 (Or. 1972).
Under 42 Pa. Cons. Stat. § 5535, a terminated action may be re-filed within a year. The statute expressly does not apply to personal injury or wrongful death claims or claims that are voluntarily dismissed by plaintiff, dismissed for failure to prosecute, or dismissed on the merits. Id. The savings statute does not preserve time-barred claims in a Pennsylvania state court if they were first filed in federal court and then re-filed in state court. Jewelcor Inc. v. Karfunkel, 517 F. 3d 672 (3d Cir. 2008).
An action may be re-filed within one year of a non-merits dismissal, provided the dismissal is not voluntary by the plaintiff or for failure to prosecute. R.I. Gen. Laws § 9-1-22. A claim dismissed for failure to effectuate service of process can be re-filed under the savings statute. Furtado v. Laferriere, 839 A.2d 533, 538 (R.I. 2004). The savings statute does not protect a new action when it was first filed in another state. Goyette v. Suprenant, 622 A.2d 1001 (R.I. 1993).
“It is well settled in South Carolina that when an action is dismissed without prejudice, the statute of limitations will bar a subsequent suit if the statute runs in the interim.” Rink v. Richland Mem. Hosp., 422 S.E.2d 747, 749 (S.C. 1992).
The South Dakota legislature has not adopted a savings statute, and the courts have expressly declined to judicially create one. Peterson v. Hohm, 607 N.W, 2d 8, 13 (S.D. 2000).
Any action that is dismissed for reasons “not concluding the plaintiff’s right of action” may be re-filed within one year of the dismissal. Tenn. Code Ann. § 28-1-105. It is wholly immaterial whether a nonsuit was voluntary or involuntary, so long as the dismissal was not on a ground concluding plaintiff’s right of action. Privett v. West Tennessee Power & Light Co., 19 F. Supp. 812 (W.D. Tenn. 1937). The savings statute does not apply to actions commenced in another state, Elias v. A&C Distrib., Co., Inc., 588 S.W.2d 768, 772 (Tenn. Ct. App. 1979), but it does apply to actions originally commenced in federal court. Privett, 19 F. Supp. 812. Multiple refilings are permitted, but all must occur within one year of the original dismissal. Rector v. DACCO, Inc., 2006 WL 1749525, *3 (Tenn. Ct. App. June 26, 2006).
A plaintiff may re-file a dismissed action within 60 days of dismissal if the action is dismissed for lack of jurisdiction. Tex. Civ. Prac. & Rem. Code § 16.064. A federal court’s decision not to exercise pendent jurisdiction was construed as a dismissal for lack of jurisdiction. Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991), no writ. Where filing of an action in federal court was made in intentional disregard of the jurisdiction of the federal court, the tolling of the statute of limitations did not occur for purposes of Tex. Civ. Prac. & Rem. Code Ann. § 16.064 and the suit was barred. French v. Gill, 252 S.W.3d 748 (Tex. App.—Texarkana 2008), pet. denied.
A plaintiff may re-file a claim once within one year of dismissal other than on the merits. Utah Code Ann. § 78B-2-111. A new action may be commenced within one year after granting the nonsuit, if causes of action in both complaints are the same. Williams v. Nelson, 145 P. 39 (Utah 1914).
Vermont’s only savings statute applies to claims or criminal prosecutions based on repealed statutory provisions. See 1 Vt. Stat. Ann. § 214(b).
Virginia Code Ann. § 8.01-229(e) states a plaintiff may re-file an action within one year of a reversal of a judgment for plaintiff that does not preclude a new cause of action. If a plaintiff voluntarily dismisses her claim, a new action may be brought within six months of the dismissal or within the original statute of limitation, whichever is longer. Id. The savings statute applies whether the original action was filed first in federal court and then in state court or vice versa. Blakely v. Austin-Weston, 348 F. Supp. 2d 673, fn 4 (E.D. Va. 2004).
Washington has a savings statute that applies to preserve claims arising under a statutory framework even if the statute is subsequently amended or repealed. Wash. Rev. Code § 10.02.040; State v. Gradt, 366 P.3d 462 (Wash. Ct. App. 2016).
A plaintiff may re-file a dismissed action within one year of dismissal if the action was involuntarily dismissed for a non-merits reason. W. Va. Code R. § 55-2-18. The statute does not apply to voluntary dismissals by the plaintiff or to dismissals based on plaintiff’s negligence. Ryan v. Piney Coal & Coke Co., 73 S.E. 330 (W. Va. 1911). The extension granted by this section applies whether the first action was in another state court or in a federal court. Stare v. Pearcy, 617 F.2d 43 (4th Cir. 1980).
Wisconsin’s only savings statute concerns the viability of pending actions after repeal of a statute. Wis. Stat. § 990.04.
Under Wyoming Stat. Ann. § 1-3-118, a plaintiff has one year to re-file an action that is dismissed for non-merits reasons if the limitations period expired by the time of dismissal. This section affords a plaintiff a year from a federal court dismissal to commence a new action in the state court. Ball v. Renner, 54 F.3d 664 (10th Cir. 1995). This section does not apply to actions brought in a state other than Wyoming. Riley v. Union P. R. Co., 182 F.2d 765 (10th Cir. 1950).