Attorney received a favorable decision from the state Supreme Court
Attorney received a favorable decision from the state Supreme Court. The attorney had successfully argued a Motion to Dismiss before the state Superior Court seeking dismissal of plaintiff’s filing of an identical action to a prior Complaint which the Court had dismissed for failure to prosecute. Rather than appeal the dismissal of the first action, plaintiff waited approximately nine months and re-filed the case arguing the re-filling was permitted under the savings statute. The savings statute does permit a plaintiff to file a second action if the first action is dismissed for various procedural reasons and it is filed within one year of the dismissal of the first action. However, the Superior Court agreed with the attorney that the savings statute does not apply to save actions dismissed for failure to prosecute. This is because a dismissal for failure to prosecute is with prejudice to which the savings statute does not apply. Plaintiff appealed the decision to the state Supreme Court and after briefing the issue, the state Supreme Court affirmed the Superior Court’s decision dismissing the case.