Opinion
USDC #: 2:03 CV 471 PGC
August 19, 2003
ORDER DENYING MOTION TO DISMISS
Defendant Joseph L. Clark moves this court to dismiss Plaintiffs complaint for failure to bring the action within the applicable statute of limitations period. In his response, Plaintiff argues that Utah's savings statute, Utah Code Ann. § 78-12-40 (2002), allows for the filing of the complaint in this case because it was filed within one year from the dismissal of the first complaint.
Defendant's Motion to Dismiss, docket entry 6-1; Memorandum in Support of Motion to Dismiss, docket entry 7-1.
Plaintiffs Memorandum in Opposition, docket entry 8-1.
BACKGROUND
On November 1, 2001, Plaintiff Wu filed his initial complaint, alleging Clark, and other members of the Salt Lake City Police, violated his civil rights on November 17, 1997. On April 11, 2002, that complaint was dismissed as to the other named defendants. Later, on June 17, 2002 the court dismissed the complaint against Clark for failure to prosecute. Subsequently, Wu filed the instant complaint against Clark on May 21, 2003.
Case number 2:01 CV 859, Complaint, docket entry 1-1.
Id., Memorandum Decision, docket entry 31-2.
Id., Order, docket entry 33-2.
Complaint, docket entry 1-1.
DISCUSSION
Clark argues that this complaint should be dismissed because Wu filed the complaint more than eighteen months after the expiration of the applicable statute of limitations. Wu argues that his complaint is not barred by the statute of limitations because it falls within the savings provision of Utah Code Ann. § 78-12-40, which provides:
If any action is commenced within due time and a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff . . . may commence a new action within one year after the reversal or failure.
In this case, Wu commenced his initial cause of action on November 1, 2001, before the four year statute of limitations expired. His cause of action against Clark failed on June 17, 2002, when the court dismissed it for failure to prosecute. Because the complaint was not dismissed on the merits, Wu is permitted under section 78-12-40, to file a new complaint within one year after the date of dismissal even though the original statute of limitations had expired. Wu filed the new complaint on May 21, 2003, within one year of the date of dismissal of the first complaint. Consequently, this complaint falls within the provisions of the savings statute and need not be dismissed because it was filed beyond the original four year statute of limitations.
See, e.g., Parkside Salt Lake Corp. v. Insure-Rite. Inc., 37 P.3d 1202, 1208 n. 8 (Utah Ct.App. 2001);Callahan v. Sheaffer. 877 P.2d 1259, 1262 (Utah Ct.App. 1994);Moffit v. Barr. 837 P.2d 572, 573 (Utah Ct.App. 1992).See also, Prince v. Leesona Corp., 720 F.2d 1166, 1169 (10* Cir. 1983) (holding that state's savings statute applies when complaint dismissed in another state).
ORDER
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss is DENIED.