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COA To Practitioners: Perfect Your Service Before Voluntarily Dismissing

By Sean E. Andrussier

In Camara v. Gbarbera, the COA today made clear that practitioners should perfect service before voluntarily dismissing their cases. In Camara, the plaintiffs filed a personal injury negligence suit arising from an almost 3-year-old auto collision. And the statute of limitations for the suit was 3 years. Then, before perfecting service, the plaintiffs voluntarily dismissed the suit -- and the plaintiffs were thereby "returned to the legal position enjoyed prior to filing the complaint." Plaintiffs refiled the suit within a year per Civil Procedure Rule 41(a) -- but after the three-year mark from the collision from which the suit arose. Because proper service wasn't achieved before the dismissal, and because the refiling put plaintiffs in the position in which they had been before the dismissal, proper service of process was not achieved prior to the passage of the 3-year statute of limitations and the action was therefore barred.

Full post as published by North Carolina Appellate Blog on July 15, 2008 (boomark / email).