Bockweg v. Anderson, 52PA90

• Decision Date: 07 September 1990
• Docket Number: No. 52PA90,52PA90
• Citation: 402 S.E.2d 627,328 N.C. 436
• Court: North Carolina Supreme Court
• Parties: Cynthia BOCKWEG and husband, Gregory Bockweg v. Stephen G. ANDERSON, Bonney H. Clark, Executrix of the Estate of R. Perry B. Clark, A. Stanley Link, Jr., Richard M. Holland and Lyndhurst Gynecologic Associates, P.A. . Heard

Page 627

402 S.E.2d 627

328 N.C. 436

Cynthia BOCKWEG and husband, Gregory Bockweg v. Stephen G. ANDERSON, Bonney H. Clark, Executrix of the

Estate of R. Perry B. Clark, A. Stanley Link, Jr.,

Richard M. Holland and Lyndhurst

Gynecologic Associates, P.A.

No. 52PA90.

Supreme Court of North Carolina.

Heard Sept. 7, 1990.

Decided April 3, 1991.

On discretionary review of a decision of the Court of Appeals, 96 N.C.App. 660, 387 S.E.2d 59 (1990), reversing a summary judgment for defendants entered by Freeman, J., in Superior Court, Forsyth County on 6 January 1989. Heard in the Supreme Court 7 September 1990.

Law Offices of Grover C. McCain, Jr. by Grover C. McCain, Jr., Kenneth B. Oettinger, and William R. Hamilton, Chapel Hill, for plaintiffs-appellees.

Tuggle, Duggins, Meschan & Elrod, P.A. by J. Reed Johnston, Jr., and Rachel B. Hall, Greensboro, for defendant-appellant A. Stanley Link, Jr.

Petree, Stockton & Robinson by J. Robert Elster, Stephen R. Berlin, and Patrick G. Vale, Winston-Salem, for defendants-appellants Stephen G. Anderson, Bonney H. Clark, Executrix of the Estate of R. Perry B. Clark, Richard M. Holland, and Lyndhurst Gynecologic Associates, P.A.

WHICHARD, Justice.

This case presents the issue of whether the one-year savings provision of N.C.G.S. § 1A-1, Rule 41(a)(1) applies when plaintiffs and defendants stipulate to a voluntary dismissal without prejudice of an action in a federal district court sitting in North Carolina and plaintiffs file the same action within the one-year period in a North Carolina state court. We hold that it does, and we thus affirm the decision of the Court of Appeals, though upon different reasoning. In so doing, for reasons fully set forth herein, we overrule High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282 (1967) and Cobb v. Clark, 4 N.C.App. 230, 166 S.E.2d 692 (1969).

On 4 December 1986, plaintiffs filed a diversity action in the United States District Court for the Middle District of North Carolina against these named defendants and others for their alleged negligence in the delivery of plaintiff-wife's fetus. On 28 October 1987 plaintiffs and defendant A. Stanley Link, Jr., stipulated to a voluntary dismissal without prejudice, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. On 2 November 1987 plaintiffs and the remaining defendants stipulated to a voluntary dismissal without prejudice, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, as to one of the claims. The other claim proceeded to trial in federal court.

Plaintiffs filed suit against these defendants on the dismissed claim in Superior Court, Forsyth County, on 18 October 1988, within one year of the voluntary dismissals in federal court, but more than four years from the date care was last rendered to plaintiff-wife. Defendants moved to dismiss on the grounds that the suit was outside the applicable statute of limitations, N.C.G.S. § 1-15(c). The trial court treated defendants' motion as one for summary judgment and, by order of 6 January 1989, granted the motion on the basis that the statute of limitations had expired.

The Court of Appeals unanimously reversed the trial court's grant of summary judgment, holding that the one-year savings provision of N.C.G.S. § 1A-1, Rule 41(a)(1) applied to the voluntary dismissal of the action in federal court. Bockweg v. Anderson, 96 N.C.App. 660, 387 S.E.2d 59 (1990). Plaintiffs' action therefore was not brought beyond the statute of limitations because it was filed within one year of the dismissals. On 5 April 1990 we allowed discretionary review pursuant to N.C.G.S. § 7A-31(c).

Plaintiffs seek to apply the North Carolina savings provision to an action, originally commenced in a federal court sitting in North Carolina, which was dismissed pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. The Court of Appeals was incorrect in stating that "the Federal Court in this case did not specify whether it granted dismissal pursuant to the North Carolina Rules of Civil Procedure." Id. at 661, 387 S.E.2d at 60. The dismissals clearly were taken pursuant to the federal rules. The issue, however, is the effect of the dismissals on plaintiffs' subsequent attempt to refile the action in state court within the one-year savings provision in N.C.G.S. § 1A-1, Rule 41(a)(1), but outside the period of limitations that controls unless N.C.G.S. § 1A-1, Rule 41(a)(1) applies.

Ordinarily, a voluntary dismissal in federal court under Federal Rule 41 "leaves the situation as if the action had never been filed." Wright & Miller, Federal Practice and Procedure: Civil § 2367 (1971). "The statute of limitations is not tolled by bringing an action that is later voluntarily dismissed." Id. Federal courts ordinarily need not consider the applicability of a savings provision, as the federal rule contains no such provision. This applies to cases in federal court in which jurisdiction is not based on diversity of citizenship and in which there is no occasion for the federal court to apply state substantive law.

For example, in Humphreys v. United States, 272 F.2d 411 (9th Cir.1959), a plaintiff sued the United States government under the Federal Tort Claims Act. Plaintiff's first suit in federal court was brought within the statute of limitations, but plaintiff voluntarily dismissed in order to sue in another federal court more convenient to the parties and witnesses. Plaintiff refiled in the other federal court outside the statute. The court upheld the denial of plaintiff's motion to set aside the order of dismissal and reinstate her first suit. It noted that the statute had expired when the motion was made because plaintiff's dismissal under the federal rules did not toll the statute and left "the situation the same as if the suit had never been brought in the first place." Id. at 412. Similar treatment of federal voluntary dismissals in nondiversity cases is seen in patent claims--see A.B. Dick Co. v. Marr, 197 F.2d 498 (2d Cir.1952), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, reh'g denied, 344 U.S. 905, 73 S.Ct. 282, 97 L.Ed. 699 (1952)--and cases involving § 1983 claims, see Cabrera v. Municipality of Bayamon, 622 F.2d 4 (1st Cir.1980). Thus, a voluntary dismissal under the Federal Rules in a nondiversity case in federal court does not toll the statute of limitations or invoke a savings provision.

By contrast, except in matters governed by the federal Constitution or acts of Congress, diversity cases involve application by the federal court of substantive provisions of state law. Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 1194 (1938). The effect of a voluntary dismissal in a federal court sitting in a diversity case thus may be different from a similar dismissal in a federal question case, depending on the substantive provisions of the applicable state law regarding voluntary dismissals. If the state's rule concerning voluntary dismissals is no different from the federal, the effect of the dismissal is the same as if the case involved solely federal law, i.e., dismissal leaves the situation as if no case had been filed. However, if the state rule concerning dismissal differs from the federal, Erie and its progeny provide the appropriate framework for analysis, and the effect of a voluntary dismissal taken in a federal court sitting in diversity is determined by the applicable substantive state law. With respect to the issue at hand, "[t]he tolling of a state statute of limitation in a diversity case is strictly a substantive matter of state law which Erie commands that [a federal court] follow absent substantial countervailing federal interests." Kahn v. Sturgil, 66 F.R.D. 487, 491 (M.D.N.C.1975).

In Webb v. Nolan, 361 F.Supp. 418 (1972), aff'd, 484 F.2d 1049 (4th Cir.1973), cert. denied, 415 U.S. 903, 94 S.Ct. 1397, 39 L.Ed.2d 461 (1974), the plaintiff filed a malpractice action in a federal court sitting in North Carolina, and the defendant moved to dismiss for lack of diversity. Plaintiff then voluntarily dismissed the action. The court stated: "At this stage the situation was the same as if the suit had never been filed.... However, under Rule 41(a)(1) and (2), N.C. Rules of Civil Procedure, a voluntary dismissal without prejudice allows a new action on the same claim to be instituted within one year." Id. at 420 (emphasis added). The court thus implicitly acknowledged the distinction between a dismissal in the context of purely federal law and a dismissal in a diversity case applying state law. Because the case was in diversity applying North Carolina law, plaintiff was allowed to refile in federal court within the one-year period. The plaintiff ultimately suffered involuntary dismissal because of lack of diversity, not because of the statute of limitations.

Other federal courts sitting in diversity and applying North Carolina law have acknowledged that the savings provision of North Carolina Rule 41 applies in diversity cases dismissed in federal court and recommenced in federal court. In Haislip v. Riggs, 534 F.Supp. 95 (W.D.N.C.1981), plaintiff filed in federal court a medical malpractice claim which was voluntarily dismissed, by stipulation of the parties, without prejudice. Plaintiff sought to file the same action in a North Carolina state court within a year of the dismissal, but outside the statute of limitations, and suffered summary judgment on statute of limitations grounds because High v. Broadnax precluded application of the savings provision where the original suit was brought in a federal court (see infra ). Plaintiff then sought to refile his suit in federal court, whereupon defendant again moved to dismiss. The court in Haislip stated:

This Court is of the opinion North Carolina Rule 41(a) is a tolling provision legislatively adopted and falls within the first category of the analysis [requiring application of state substantive law].... The tolling of...