Western District Holds Time to Refile Suit Under Missouri Savings Statute Runs From Date of Filing Motion to Dismiss
Ever wonder if the court needs to actually grant that motion to voluntarily dismiss to make the dismissal effective? The Western District recently found that the motion itself is an effective dismissal without any further court order in Zinke v. Orskog (http://www.courts.mo.gov/file.jsp?id=68157). Consequently, the date of the motion - not the date of the order - is the date for calculating the Savings Statute.
In Zinke, a plaintiff took a voluntary dismissal in a civil case by filing a motion to voluntarily dismiss without prejudice on March 28, 2011. On September 15, 2011, the court granted the motion. Zinke refiled the petition on September 13, 2012 - less than a year from the order of dismissal, but more than a year from the date the motion was filed.
Both the lower court and the Western District of Missouri found that the suit was time barred. Pursuant to the Missouri Savings Statute, Mo. Rev. Stat. 516.230, if a case is timely filed, and then later plaintiff takes a "nonsuit," the action may be refiled within 1 year after the nonsuit. Because the nonsuit was effective upon the filing of the motion, the Western District held Zinke's refiling untimely.
So next time you defend a case refiled under the Savings Statute, don't forget to check for this trap for the unwary plaintiff lawyer.