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Playing by the Rules of Civil Procedure

Lunsford v. Teasley, COA20-436 (April 2021)

All games have rules. If you want to imagine your civil court case as a game, then the Rules of Civil Procedure is the handbook that tells you how to get started playing the game. And if you happen to break the rules, there are consequences. It may seem to be an odd analogy, but the rules in a game are to make things fair and to make them efficient and orderly. Similarly, the Rules of Civil Procedure promotes fairness, efficiency, and order. Below is a case that talks about one of those rules.

  • Facts: Plaintiff commenced an action in Superior Court on November 14, 2017. Plaintiff then gave notice of a voluntary dismissal on September 26, 2018, pursuant to Rule 41(a)(1) of the Rules of Civil Procedure. According to that rule, the Plaintiff has one calendar year in which to file “a new action based on the same claim.” On September 24, 2019, Plaintiff requested an extension to file a complaint pursuant to Rule 3(a)(1), and the clerk of court granted such extension. However, in order to request the continuance pursuant to Rule 3(a)(1), Plaintiff must have also obtained a summons before the expiration of the one year mark. So when Plaintiff filed his second complaint on October 9, 2019, it was dismissed for being untimely. Plaintiff appealed.


  • Issue: Was the trial court in error in dismissing Plaintiff’s second complaint?



  • Holding:


  • Rationale: This was a straightforward application of Rule 3(a)(1) and Rule 41(a)(1). “Where statutory language is clear and unambiguous, our Courts do not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language.” Rule 3 gives two methods to commence a lawsuit: 1) filing a complaint, 2) issuance of a summons when a person makes application to the court stating the nature and purpose of the action and requests a 20-day period to file a complaint, and the court grants such extension (service still needs to be effectuated pursuant to Rule 4). Plaintiff skipped a step. Rule 41 gave him one year to commence his action by the two methods described in Rule 3. Plaintiff did not file a complaint. Plaintiff did request a 20-day extension to file a complaint, however, skipped the step where Plaintiff had to have the clerk issue a summons. Without the summons, no extension can be granted. Therefore, dismissing the action was not an error because the Plaintiff’s second complaint was beyond the one-year mark allowed by Rule 41.


Your family law attorney is well versed in court procedures. Consult with them to be sure you don’t run afoul of The Rules.