Webster v. Spears

Filing 10

Memorandum Opinion: For the reasons set forth above, Ohio Rev. Code Section 2309.19 does not apply to this case. Therefore, defendant's motion to dismiss (Doc. No. 7 ) is granted and the case is dismissed with prejudice. Judge Sara Lioi on 3/25/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TODD WEBSTER,

PLAINTIFF,
vs.
GREGORY SPEARS,

DEFENDANT.

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CASE NO. 3:15-cv-907

JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is defendant’s motion to dismiss. (Doc. No. 7 [“Motion”].) Plaintiff
filed his opposition (Doc. No. 8 [“Opp’n”]) and defendant filed a reply (Doc. No. 9 [“Reply”]).
For the reasons discussed herein, the motion is granted.
I. BACKGROUND
On June 1, 2013, plaintiff, Todd Webster (“Webster” or “plaintiff”), filed Webster v.
Spears, Case No. 1:13-cv-1218 (the “first case”), alleging that, on August 8, 2009, when he was
a juvenile detained at a juvenile correctional facility in Ohio, he was subjected to excessive force
by defendant, Gregory Spears (“Spears” or “defendant”), a juvenile correctional officer then
employed by the facility, who was sued solely in his individual capacity. Because Webster was a
minor at the time of the incident, his cause of action did not accrue until he reached the age of
majority on June 1, 2011. See Ohio Rev. Code § 3109.01. Therefore, to be timely, his § 1983
action had to be filed by June 1, 2013, the very day he filed it. See Wilson v. Garcia, 471 U.S.
261, 276-80, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985) (in a § 1983 action, the court should apply
the relevant state statute of limitations for recovery of damages for personal injuries); Browning

v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989) (two-year statute of limitations for actions for
bodily injury “is the appropriate statute of limitations for actions arising in Ohio under 42 U.S.C.
§ 1983”) (citing Ohio Rev. Code § 2305.10).
Even after seeking and receiving several extensions of time,1 Webster never managed to
serve Spears with the summons and complaint, apparently because of his inability to locate him.
On April 23, 2014, the Court issued a Memorandum Opinion and Order indicating that “it [had]
already granted plaintiff more than an ‘appropriate period’ of time for service of the summons
and complaint filed on June 1, 2013.” (Doc. No. 16 at 62, emphasis in original.) The Court
further noted that its own “review of the record in this case reveals no specific steps that plaintiff
has taken to locate defendant on his own, other than belatedly hiring a process server whose
efforts have been unsuccessful.” (Id., footnote omitted.) The Court then once again extended the
previously-granted “final” April 14, 2014 deadline for service, warning plaintiff that “[f]ailure to
effect service upon defendant Spears by May 7, 2014, shall result in dismissal of the case.” (Id.

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Although the time limit for service of process under Fed. R. Civ. P. 4(m) is currently 90 days, at all relevant times
herein, it was 120 days. The 120-day period to serve Spears would have expired on September 29, 2013, a Sunday.
On September 26, 2013, Webster moved for an extension of time to serve the summons and complaint. In the
motion itself, he sought “an extension of 45 days” (Doc. No. 4 at 23), although in the docket entry for his motion, he
specified that he was seeking an extension “until November 13, 2013[.]” (See docket text for Doc. No. 4.) On
November 15, 2013, by non-document order, the Court granted the extension to November 13, 2013, a date that
plaintiff now criticizes as “odd[,]” since it was two days before the order. (See Opp’n at 38.) On December 2, 2013,
Webster filed a motion seeking a 60-day extension. (Doc. No. 7.) As before, his docket entry specified a precise date
(January 12, 2014) as his newly-sought deadline; but, this time, a quality control clerk caught the discrepancy and
modified the docket language by removing the specific date. (Compare current docket entry to entry on the original
receipt.) On December 4, 2015, the Court, by non-document order, granted “an additional extension of 60 days to
locate and complete service on defendant.” By the Court’s count (from the date of the order, not from the original,
missed deadline), at the latest that would have given plaintiff until February 3, 2014 to serve Spears. On February
12, 2014 (which was one month after even the date that he had specified in his original docket text), Webster filed
another motion seeking yet another 60-day extension, once again docketing it as seeking an extension to a date
specific (April 13, 2014 – a Sunday). Although a quality control clerk modified the docket entry to add defendant’s
name, this time the clerk did not remove the date. On March 18, 2014, the Court granted plaintiff’s motion for
extension, assigning the “final” deadline for service as April 14, 2014 (a Monday). (See Doc. No. 10.) Later, on
April 23, 2014, while granting a motion of non-party Ohio Department of Youth Services to quash a subpoena, the
Court set yet another final deadline of May 7, 2014. (Doc. No. 16.) That date passed, with no service.

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at 63.) On May 9, 2014, pursuant to the Court’s warning, the case was dismissed. (See First
Case, Doc. No. 17.)
On May 8, 2015, plaintiff filed the instant action against Spears (the “second case”),
indicating that it was a refiling of the first case. The docket reflects that issuance of an original
summons was requested and accomplished on August 21, 2015, and that personal service was
executed upon Spears on August 26, 2015. On September 16, 2015, Spears filed his motion to
dismiss, arguing that this Court lacks subject matter jurisdiction because Ohio’s Savings Statute
does not apply.
II. DISCUSSION
Webster is attempting to avail himself of Ohio’s Savings Statute, which provides in
relevant part:
In any action that is commenced or attempted to be commenced, if in due time …
plaintiff fails otherwise than upon the merits, the plaintiff … may commence a
new action within one year after the date of … the plaintiff’s failure otherwise
than upon the merits or within the period of the original applicable statute of
limitations, whichever occurs later. …
Ohio Rev. Code § 2305.19(A). The Sixth Circuit has determined that where, as here, a court
“use[s] a state’s Statute of Limitations, [it] also use[s] its procedural rules affecting that Statute
of Limitations[,]” including any savings statute. Coleman v. Dep’t of Rehab. & Corr., 46 F.
App’x 765, 769 (6th Cir. 2002) (citation omitted).
In Coleman, needing to determine whether there had been an “attempt to commence”
within the meaning of Ohio’s rules and court decisions, the Sixth Circuit looked to Thomas v.
Freeman, 680 N.E.2d 997 (Ohio 1997) and Mustric v. Penn Traffic Corp., No. 00AP-277, 2000
WL 1264526 (Ohio Ct. App. Sept. 7, 2000), and concluded that, while neither was completely on
point, each provided insight as follows:
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Mustric is persuasive for its view that a plaintiff whose case is dismissed due to
his own neglect cannot later take advantage of the Savings Statute. This is
especially helpful as a logical extension of Thomas, wherein the Ohio Supreme
Court held the Savings Statute can be invoked by a plaintiff who followed the
proper statutory service procedures, even if service nonetheless failed. If this issue
were presented, we believe the Ohio Supreme Court would follow Mustric and
adopt the perfectly logical rule that a plaintiff cannot benefit from the Savings
Statute where the dismissal was due to the plaintiff's own neglect.
Coleman, 46 F. App’x at 770.
In his motion to dismiss, defendant relies upon Coleman to “invoke[ ] a type of fault
requirement[.]” (Motion at 33.) Defendant asserts that Coleman “conclud[ed] [that] a plaintiff
cannot invoke the Ohio Savings Statute if the reason the action was dismissed was the plaintiff’s
failure to follow the correct procedures.” (Id.) Therefore, according to defendant, “[p]laintiff
cannot invoke the Ohio Savings Statute to save his Complaint because the dismissal of his
original action was the result of his own, repeated neglect.” (Id. at 34.)
There is no dispute that, in order to “save” the second case from being barred by the
statute of limitations, Ohio’s savings statute requires the following: (1) the first case must have
been dismissed “otherwise than upon the merits[;]” and (2) the first case must have been
“commenced or attempted to be commenced[.]” Ohio Rev. Code § 2305.19(A). Satisfaction of
the first requirement is not in dispute here.
Under Ohio’s procedural rules, “[a] civil action is commenced by filing a complaint with
the court, if service is obtained within one year from such filing upon a named defendant[.]”
Ohio R. Civ. P. 3(A) (emphasis added). In other words, “commencement of an action for
purposes of the savings statute includes effective service of process.” 66 Ohio Jur. 3d Limitations

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and Laches § 133 (March 2016) (footnote citing cases omitted).2 There is no dispute that the first
case was not “commenced” within the meaning of Rule 3(A). The dispute here relates entirely to
“attempted” commencement.
The only way the instant case is protected by the savings statute is if the first case was
“attempted to be commenced.” Ohio’s Rule 3(A) does not define “attempted” commencement,
but Ohio case law does: “We hold that the attempted commencement provision of R.C. 2305.19
requires only that a [p]laintiff has taken action to effect service on a defendant within the
applicable limitations period according to one of the methods provided in the Civil Rules.”
Schneider v. Steinbrunner, No. 15257, 1995 WL 737480, at *4 (Ohio Ct. App. Nov. 8, 1995)
(emphasis added).3 In Schneider, the court concluded that “a valid request for service pursuant to
Civ. R. 4.1 was filed with the clerk,” id. at *3 (i.e., a request for service by certified mail), and
that request satisfied the “attempted commencement alternative.”4 See also Shanahorn v. Sparks,
No. 99AP-1340, 2000 WL 861261, at *6 (Ohio Ct. App. June 29, 2000) (“[b]oth [plaintiff’s]
original complaint and request for service of summons were submitted prior to expiration of the
statute of limitations”) (cited by Coleman).
The “methods provided in the [federal] Civil Rules” for service on a defendant include:
(1)

following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or
where service is made; or

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The federal counterpart of Ohio’s Rule 3 states only that “[a] civil action is commenced by filing a complaint with
the court.” Fed. R. Civ. P. 3. But to determine applicability of Ohio’s Savings Statute, the Court must look to Ohio
rules. Coleman, 46 F. App’x at 769.
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In Schneider, plaintiff brought a state personal injury claim governed by the same 2-year statute of limitations that
controls Webster’s § 1983 claim in this Court.
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The court in Schneider also noted that Ohio’s Savings Statute “does not impose a due diligence requirement upon
its attempted commencement alternative. Neither does it require a plaintiff whose efforts at service are unsuccessful
to show good cause why service was not made, as Civ. R. 4(E) does.” Schneider, 2005 WL 1322713, at * 3.

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(2)

doing any of the following:
(A)

delivering a copy of the summons and of the complaint to the
individual personally;

(B)

leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or

(C)

delivering a copy of each to an agent authorized by appointment or
by law to receive service of process.

Fed. R. Civ. P. 4(e). State law methods of service in Ohio are similar to these federal methods,
including service by the clerk (by way of certified or express mail, or commercial carrier
service), personal service, or residence service.5 See Ohio R. Civ. P. 4.1. In addition, Ohio R.
Civ. P. 4.4(A)(1) provides a method for service by publication when “the residence of the
defendant is unknown[.]”
Here, in the first case, plaintiff took no action to effect service “within the applicable
limitations period,” as required by Ohio law in order to “attempt” commencement for purposes
of the savings statute. Plaintiff did not request service by the clerk by certified mail when he filed
his complaint on June 1, 2013, the very day that the statute of limitations expired. Nor did he file
a praecipe for issuance of the summons, so he could personally serve the defendant. 6 Nor did he
request service by publication because the residence of the defendant was unknown. Had he done
so, the analysis would be complete and defendant’s motion to dismiss would be denied because,

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Under the Local Rules of the Northern District of Ohio, if a person plans to use service by mail, as permitted in
Ohio, a particular procedure must be followed to equip the Clerk of this Court with the ability to effect such service.
See L.R. 4.2.
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Plaintiff finally filed a praecipe for issuance of a summons by the clerk on October 15, 2013, a date that fell after
the expiration of the statute of limitations (June 1, 2013) and, for that matter, even after the 120-day period for
service under the federal rules (September 29, 2013). Given that he had no summons until October 17, 2013, when
the Clerk issued it, he was clearly unable to perfect personal service before that date, even if he had tried.

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although service was never accomplished, the two conditions to satisfy the savings statute,
within the meaning of Ohio law, would have been met.
In his opposition brief, plaintiff seems to suggest that it is enough that he made “repeated,
persistent attempts to locate and serve the [d]efendant,” (Opp’n at 41), but was unable to do so.
He relies upon Thomas v. Freeman, 680 N.E.2d 997 (Ohio 1997) to support an argument that his
first case was dismissed otherwise than on the merits, a fact not challenged by defendant, while
ignoring Thomas’ instruction that the Ohio Savings Statute applied there because plaintiff “filed
her initial complaint and demanded service before the two-year statute of limitations had
expired[.]” Id. at 1002. Since Webster obviously intended to serve Spears personally (having
made no demand for mail service by the clerk), he would have needed a properly-issued
summons in order to do that. But Webster never requested a summons from the clerk until
October 15, 2013, well after the statute of limitations had expired. It is not enough for Webster to
argue that he could not find defendant. While that may be unfortunate, that does not change the
law. Further, under Ohio rules, on the day Webster filed the first case, since he claims no
knowledge of defendant’s address as of that date, he could have sought service by publication.
Had Webster requested service by any of the “methods provided in the Civil Rules,”
Schneider, 1995 WL 737480, at *4, he would have satisfied the “low standard” for “attempted
commencement” noted by Coleman, that is, “any overt act in pursuance of the litigation[.]”
Coleman, 46 F. App’x at 771.
In Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 653 N.E.2d 235 (Ohio 1995) syllabus ¶ 2,
the Ohio Supreme Court held that “[t]he mere filing of a complaint does not constitute an
attempted commencement of an action for purposes of R.C. 2125.04[,]” the savings statute
specifically applicable to wrongful death actions in Ohio. This is so because “[s]ervice is too
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vital a part of commencement of a lawsuit for a party to be deemed to have attempted
commencement without even attempting service.” Id. at 240 (citing Ohio R. Civ. P. 3(A) and
4(E)). The court went on to explain:
A savings statute is not to be used as a method for tolling the statute of
limitations. See Lewis v. Connor (1986), 21 Ohio St. 3d 1, 21 OBR 266, 487
N.E.2d 285. Although this court has held that savings statutes should be liberally
construed, the criteria of the statutes must be satisfied in order to prevent
circumvention of the statute of limitations and unfairness to defendants never put
on notice.
Since the appellants never commenced their first action, the protection
provided by R.C. 2125.04 never attached. …
Id. In Sorrell v. Estate of Datko, 770 N.E.2d 608 (Ohio Ct. App. 2001), the court relied upon this
reasoning, in conjunction with the decision in Thomas, to conclude that the Ohio Supreme Court
“would define ‘attempt to commence’ for purposes of R.C. 2305.19 as filing a complaint and
demanding service prior to the statute of limitations’ expiration.” Id. at 611.
Plaintiff also relies on Mustric, supra, and Shanahorn, supra, in making his argument
that his “repeated, persistent attempts” to locate defendant for purposes of service are enough.
(Opp’n at 43.) But plaintiff’s argument relying on Mustric and Shanahorn fails to note one very
important nuance in both cases (also recognized in Thomas and the other cases cited above): an
“attempt” to commence is defined by both filing the initial complaint and demanding service of
that complaint prior to the expiration of the statute of limitations. Mustric, 2000 WL
1264526, at *5 (“In Shanahorn …, [w]e determined that the savings statute applied if the
plaintiff merely attempted to commence the original action within the applicable statute of
limitations.”) (quoting Shanahorn, 2000 WL 861261, at *5).
Plaintiff filed the first case on the very day the statute of limitations ran. He did not
demand service in any way on that day. Therefore, although the first case was dismissed
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otherwise than on the merits, plaintiff neither “commenced” nor “attempted” to commence the
first case. As a result, plaintiff may not avail himself of Ohio’s Savings Statute and defendant is
entitled to dismissal of the second case with prejudice.
III. CONCLUSION
For the reasons set forth above, Ohio Rev. Code § 2309.19 does not apply to this case.
Therefore, defendant’s motion to dismiss (Doc. No. 7) is granted and the case is dismissed with
prejudice.

IT IS SO ORDERED.
Dated: March 25, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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