- posted: May 18, 2018
On May 14, 2018 the West Virginia Supreme Court of Appeals unanimously affirmed the Randolph County Circuit Court and confirmed the limitations on a party’s ability to refile dismissed cases under the West Virginia Savings Statute. PFFB&P attorneys Matthew Whitler and Anthony Delligatti were successful in arguing to the West Virginia Supreme Court of Appeals for the affirmation of a dismissal from the lower court based on the statute of limitations after the Plaintiff filed a new lawsuit pertaining to the same allegations in an earlier lawsuit previously dismissed without prejudice for failure to serve the original Complaint. The Supreme Court reasoned that while the savings statute is normally triggered for dismissal for failure to serve process and permits a Plaintiff to refile within a year of dismissal regardless of the statute of limitations, it is only applicable when the prior dismissal was involuntary. The Supreme Court found that even though Mr. Davis did not move to dismiss the first suit, he failed to pursue the original case diligently and the prior dismissal was “in effect voluntary.” Because the first dismissal was deemed voluntary due to the Plaintiff’s failure to respond to a show cause order from the Circuit Court prior to dismissal of the first case and the subsequent filing of the second case, the savings statute could not resurrect his claims in the new lawsuit filed after the now-expired statute of limitations.
Congratulations to Matthew Whitler and Anthony Delligatti for representing their client well.
https://www.courtswv.gov/supreme-court/memo-decisions/spring2018/17-0435memo.pdf
