Ohio Complaint Was Timely Despite Clerk’s Improper Practice Of Delaying Service

The Supreme Court of Ohio has confirmed a bright-line rule that the filing of a complaint commences the action for statute of limitations purposes.

In Seger v. For Women, Inc., 110 Ohio St.3d 451, 854 N.E.2d 188 (Oct. 4, 2006), plaintiff filed a medical malpractice action days before the expiration of the statute of limitations, but requested the Clerk not to effect service yet because she was still investigating the identity of an additional defendant. The Clerk served the complaint four months later when plaintiff requested it.

Defendants argued that the Clerk violated Rule 4(A), which requires the Clerk to effect service “forthwith,” causing the action to be commenced out of time. While the court agreed that Rule 4(A) was violated, and it condemned the Clerk’s apparent practice of allowing counsel to request delays of service contrary to that rule, it held that Ohio Civil Rule 3(A) establishes an absolute rule that a civil action is commenced the day the complaint is filed “if service is obtained within one year.” It rejected construing Rule 4 as affecting Rule 3 because that would lead to case-by-case evaluations of what “forthwith” meant in particular circumstances, whether delay was intentional, and what the consequences should be.