[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Moore v. Mt. Carmel Health Sys. , Slip Opinion No. 2020-Ohio-4113.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -4113
M OORE , C ONSERVATOR , A PPELLEE , v. M OUNT C ARMEL H EALTH S YSTEM

D . B . A
. M OUNT C ARMEL S T . A NN ’ S H OSPITAL ET AL ., A PPELLANTS
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Moore v. Mt. Carmel Health Sys. , Slip Opinion No. 2020-Ohio-4113.] Civil law—Savings statute—R.C. 2305.19(A)—The savings statute may be applied only when its terms have been met— Court of appeals’ judgment reversed
and cause remanded. (Nos. 2018-1233 and 2018-1479―Sub mitted November 13, 2019―Decid ed August 20, 2020.)
A PPEAL from and C ERTIFIED by the Court of Appeals for Franklin County, No. 2017APE-10-754, 2018-Ohio-2831.

_________________ D E W INE , J. {¶ 1} This case requires us to examine the interplay between Ohio’s s avings statute, R.C. 2305.19(A), and the provisions of Civ.R. 3(A) to determine whetherS UPREME C OURT OF O HIO

2 an action is barred by the statute of limitations. The statute of limitations prohibits an action unless it is “commenced” prior to the expiration of t he statute. Civ.R. 3(A) says that an action is “commenced” at the time it is filed if service is obtained within one year. The savings statute provides that when an act ion is dismissed other than on the merits, the plaintiff may refile the action within one year. {¶ 2} Here, the plaintiff filed the action just before the expiration of the statute of limitations. The plaintiff did not obtain service w ithin one year, however. Nor did he dismiss the action during that period. The question is whether the plaintiff can nevertheless rely upon the savings statute. We h old that he may not.
Because the action was not commenced within the statute-of-limi tations period, it fails. The savings statute ca nnot be used to revive the action

. Moore Files Suit One Day Prior t o the Expiration of the Statute of
Limitations {¶ 3} Michael Moore filed a complaint alleging medical malpractice fo r injuries suffered by his son during a medical procedure that wa s performed on January 20, 2014. Moore sued multip le defendants, including Dr . Eric Humphreys, the anesthesiologist who treated his son; Mount Carmel St. Ann’ s Hospital (“Mount Carmel”), where the procedure was performed; and Central Ohio A nesthesia, Inc., the practice group with whic h Dr. Humphreys worked. {¶ 4} The statute of limitations for medical claims is one year. R.C

. 2305.113(A). That period may be ext ended if, before the expira tion of the limitations period, the plaintiff gives written notice to the d efendant that he intends to bring a claim. R.C. 2305.113(B)(1). In such event, the act ion may be commenced at any time within 180 days after the notice was give n. Moore took advantage of this provision, extending his deadline to commence the action to July 7, 2015. He filed his complaint one day prior to this deadline , on July 6, 2015. Simultaneously, Moore requested s ervice of the complaint and su mmons on all
three defendants.January Term, 2020

3 {¶ 5} Timely service was obtained on Ce ntral Ohio Anesthesia and Moun t Carmel, but Moore failed to obtain service on Dr. Humphreys dur ing the year following the filing of the complaint as required by Civ.R. 3(A ). An attempt to serve Dr. Humphreys by certifie d mail at Mount Carmel was unsuc cessful; Dr. Humphreys had retired and was no longer seeing patients at Moun t Carmel or
elsewhere. {¶ 6} Mount Carmel filed an answer to t he complaint and raised a statuteof-limitations defense and an insufficiency-of-service-of-proce ss defense. Central Ohio Anesthesia and Dr. Humphrey s jointly filed an answer and a lso raised those
defenses. Moore Serves Dr. Humphreys More Than One and a Half Years after Filing {¶ 7} In February 2017, Central Ohio Anesthesia, Dr. Humphreys, and Mount Carmel all moved for summary judgment. They argued that Moore’s claim against Dr. Humphreys was time-barred because Moore failed to s erve him within Civ.R. 3(A)’s one-year commencement period. Mount Carmel and C entral Ohio Anesthesia further asserted that because the claim against Dr. Humphreys was timebarred, they could not be vicariously liable. On March 2, 2017 , Moore again issued instructions to the clerk to attempt personal service on Dr. Hu mphreys. Service was finally perfected on Dr. Hum phreys at his residence on Marc h 10, 2017. {¶ 8} The trial court granted summary judgment in favor of all three
defendants. The court found that t he lawsuit against Dr. Humph reys was barred by the statute of limitations. It noted that under our precedent, Dr. Humphreys’s participation in the case did not prevent him from raising the defense of insufficient service of process, citing Gliozzo v. Univ. Urologists , 114 Ohio St.3d 141, 2007- Ohio-3762, 870 N.E.2d 714, ¶ 18. Although Moore had initially filed the lawsuit within the limitations period, he neither obtained service on D r. Humphreys within one year as required by Civ.R. 3( A), nor did he dismiss his law suit during that time. Thus, the claim against Dr. Humphreys was not commenced prior t o the expirationS UPREME C OURT OF O HIO

4 of the statute of limitations and was barred. As a consequence , the court ruled, “Dr. Humphreys is dismissed with prejudice from this lawsuit because plaintiff’s claims against him are barred by the statute of limitations.” And, co ncluding that Mount
Carmel and Central Ohio Anesthesi a could only be vicariously li able, the court found that any liability of both pa rties was “extinguished.” T he court thus granted summary judgment and entered fina l judgment in favor of Dr. Hum phreys, Central Ohio Anesthesia, and Mount Carme l and against Moore “on the mer its.” {¶ 9} Moore appealed. The Tenth Distr ict Court of Appeals reversed a nd held that the savings statute a pplied to Moore’s claim against Dr. Humphreys. For the savings statute to apply, an action must fail other than on the merits and then the plaintiff must commence a ne w action within one year of tha t failure. R.C. 2305.19(A). Relying on Goolsby v. Anderson Concrete Corp ., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), the court of appeals construed Moore’s i nstructions for service of process on March 2, 2017, as a voluntary dismissal o f his action and a refiling of a new action against Dr. Humphreys by operation of law. The court
further concluded that this dis missal by operation of law was a failure “otherwise than on the merits,” even though the statute of limitations had expired. 2018-Ohio2831, 117 N.E.3d 89, ¶ 2. Thus, it concluded that the savings statute allowed Moore an additional year to perfect ser vice of his complaint, which w as accomplished on March 10, 2017. Having determined t hat the claim against Dr. H umphreys was not time-barred, the court of appeals dismissed as moot Moore’s rem aining assignment of error, which argued that his claim against Central Ohio Anes thesia survived even if the claim against Dr. Humphrey s was barred by the statute of limitations. {¶ 10} The court of appeals acknowledged that several other courts of appeals have held Goolsby to be inapplicable in similar situations. See, e.g. , Anderson v. Borg-Warner Corp. , 8th Dist. Cuyahoga Nos. 80551 and 80926, 2003- Ohio-1500; Bentley v. Miller , 9th Dist. Summit No. 25039, 2010-Ohio-2735;
Gibson v. Summers , 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995.January Term, 2020

5 Finding its decision to be in conflict with these cases, the co urt of appeals certified the following question to this court:

“Does the Ohio savings statute , R.C. 2305.19(A), apply to an ac tion in which a plaintiff attempts, but fails to perfect service on the original complaint within one year pursuant to Civ.R. 3(A)? If so, when a plaintiff
files instructions for service after the Civ.R. 3(A) one-year p eriod, does the request act as a dismissal by operation of law and also act as the refiling of
an identical cause of action s o as to allow the action to conti nue?”

154 Ohio St.3d 1436, 2018-Ohio-4732, 112 N.E.3d 922. {¶ 11} Mount Carmel filed a discretiona ry appeal to this court, as did Dr. Humphreys and Central Ohio Anesthesia. They raised similar pro positions of law, essentially asserting that once the applicable statute-of-limit ations period expires, the savings statute cannot be used to revive a cause of action that was not timely commenced under Civ.R. 3(A). T his court accepted both discreti onary appeals and
consolidated them with the cer tified-conflict case. 154 Ohio S t.3d 1437, 2018- Ohio-4732, 112 N.E.3d 922. {¶ 12} Before we begin our analysis, and to make all this easier to fo llow, we restate the pertin ent dates below:

01/20/2014 Date of alleged injury
07/06/2015 Complaint filed
07/07/2015 Expiration of the sta tute of limitations
07/06/2016 Date by which service must be obtained to commence action under Civ.R. 3(A)
02/2017 Summary-judgment motions filed
03/02/2017 Instructions for service on Dr. HumphreysS UPREME C OURT OF O HIO

6 03/10/2017 Service on Dr. Humphreys obtained

By Its Plain Terms, the Saving s Statute Does Not Save Moore {¶ 13} To resolve the question in front of us, we need to examine the statute of limitations, the commencement requirement in Civ.R. 3(A), an d the savings statute, R.C. 2305.19(A). {¶ 14} The applicable statute of limita tions is R.C. 2305.113, which s tates that “an action upon a medical * * * claim shall be commenced within one year after the cause of action accrued.” (Emphasis added.) R.C. 23 05.113(A). Here, because Moore took advantage of the 180-day extension provided for in R.C. 2305.113(B)(1), he was required to “commence” his action by Jul y 7, 2015. {¶ 15} Civ.R. 3(A) determines when a n action is commenced:

A civil action is commenced by filing a complaint with the
court, if service is obtained within one year from such filing upon a named defendant, or upon an inc orrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D).

(Emphasis added.) See also R.C. 2305.17. {¶ 16} The upshot of the aforementioned provisions is that to comply w ith the statute of limitations, an action must be “commenced” withi n the limitations period. Under Civ.R. 3(A), this occurs when the action is file d within the limitations period and service is obt ained within one year of t hat filing. {¶ 17} That brings us to Ohio’s savings statute. It provides:January Term, 2020

7 In any action that is commenced or attempted to be commenced * * *, if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within on e year after the * * * plaintiff’s failure otherwise than upon th e merits or within the period of the original applicable statute of limi tations,
whichever occurs later.

R.C. 2305.19(A). {¶ 18} Under the plain language of these three provisions, Moore’s cla im is barred by the statute of limitations. Moore filed his action w ithin the limitations period but did not obtain service on Dr. Humphreys during the o ne-year commencement period pursuant to Civ.R. 3(A). Thus, he did not commence his
action within the statute-of- limitations period. As a result, as of July 7, 2016, his
claim was time-barred. {¶ 19} By its terms, the savings statute cannot save Moore’s claim. I n order for the statute to apply, the claim must have failed “otherwise than upon the merits” and then Moore must have filed a new claim within one year ther eafter. Here, when
Moore issued instructions to the clerk to serve the complaint i n March 2017,
Moore’s claim hadn’t fa iled other than on the merits. The case remained on the court’s docket—it was subject to dismissal, to be sure, both be cause Moore had failed to accomplish service and b ecause the statute of limitat ions had run. But no such dismissal had been entered, and if such dismissal had been entered, the expiration of the statute of limitations would have made the fa ilure on the merits.
See LaBarbera v. Batsch , 10 Ohio St.2d 106, 114-115, 227 N.E.2d 55 (1967) (“a judgment based upon the statute of limitations is generally reg arded as on the merits and bars another action for the same cause”). Further, Moore d id not file a “new action.” The only thing he did was ask the clerk to serve the original complaint thatS UPREME C OURT OF O HIO

8 remained on the court’s docket. Thus, if the savings statute m eans what it says, it does not apply. {¶ 20} This would be a relatively simple case if all we had to grapple with was the language of the applicable rule and statutes; under a p lain reading, the trial court properly found that Moore’s claim was barred by the statu te of limitations. But the court of appeals concluded that our decision in Goolsby , 61 Ohio St.3d 549, 575 N.E.2d 801, dictated a different result—a contention that M oore echoes in his briefing. So we take up Goolsby

. Goolsby Does Not Save Moore, Either {¶ 21} Goolsby involved the two-year statu te of limitations for personalinjury claims. See R.C. 2305.10. Goolsby filed her complaint less than seven
months after the date of her aut omobile accident (more than one year before the statute of limitations was set to expire). Goolsby at 549. Goolsby did not seek to serve her complaint within one year of filing. Instead, two da ys before the statute of limitations was set to expire, Goolsby instructed the clerk to execute service, which was obtained shortly thereafter. Id. The defendant argued that because Goolsby’s complaint was not served for more than one year after it was filed, she
had never commenced an action. Id. at 550. This court recognized that a “technical application” of Civ.R. (3)(A) w ould lead to the conclusion that Goolsby never
commenced her action. Id. at 550. On the other hand, “had Goolsby dismissed her complaint and again filed it at the time instructions for servi ce were given, the
action would have been commenced according to Civ.R. 3(A).” Id . at 550-551. But the court worried that to require her to do so would lead t o delay, unnecessary expense, and other impediments to the “expeditious administrati on of justice.” Id.
at 551. “Under these circumstan ces,” the court explained, a st rict application of Civ.R. 3(A) “would not comport w ith the spirit of the Civil Rul es.” Id . Thus, the court held that “[w]hen service has not been obtained within on e year of filing a complaint, and the subsequent refiling of an identical complain t within rule wouldJanuary Term, 2020

9 provide an additional year within which to obtain service and c ommence an action under Civ.R. 3(A), an instruction to the clerk to attempt servi ce on the complaint will be equivalent to a refiling of the complaint.” (Emphasis added.) Id. at syllabus. {¶ 22} The facts of the present case are quite different from the fact s in Goolsby . When Goolsby issued her instr uction to the clerk to attempt service of the complaint, she was still with in the limitations period. Be cause the limitations period had not yet run, she could have simply dismissed her com plaint without prejudice and refiled it. In contrast, when Moore issued his i nstructions to the clerk in March 2017, the statute of limitations period had already ex pired. {¶ 23} This court applied Goolsby ’s holding in a somewhat different
context in Sisk & Assocs., Inc. v. Commt. to Elect Timothy Grendell , 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d 271. There, Sisk filed a compl aint for breach of contract in September 2004, faile d to obtain service within one year, and voluntarily
dismissed the action. Id. at ¶ 2. Sisk refiled the co mplaint in 2005 but did not obtain service within one year of the 2005 complaint; instead, Sisk instructed the
clerk to serve the defendant in 2007. Id. Service failed again, so the trial court
dismissed the refiled act ion without prejudice. Id. The court of appeals affirmed, but we reversed. “To allow Sisk to proceed with its case, afte r twice failing to perfect service within a year,” this court said, “would be a pe rversion of justice.”
Id. at ¶ 7. To avoid this result, the court applied Goolsby , 61 Ohio St.3d 549, 575 N.E.2d 801, and held that Sisk’s i nstruction to serve process i n 2007 should be construed as a dismissal and a refiling. Sisk at ¶ 8. Since Sisk had already dismissed the original complaint once, the second dismissal was with prejudice under Civ.R. 41(A)(1)(a). Id. {¶ 24} The opinion in Sisk does not detail whether the statute of limitations had expired at the time the clerk was instructed to serve proce ss in 2007. It appearsS UPREME C OURT OF O HIO

10 from the record, however, that it had not. 1 Thus, Sisk , like Goolsby , is best understood as dealing with a situa tion where the original statu te of limitations had not expired. {¶ 25} The rationale underlying the rule announced in Goolsby (and applied
in Sisk ) is that in the circumstances of that case—where the statute o f limitations had not run—it was an unnecessary and onerous procedural hurdle to force a plaintiff to dismiss and refile a n identical complaint. The ke y distinction between Goolsby and our case is that here, the statute of limitations had run when Moore requested that the clerk make a renewed attempt at service. To apply the savings statute to revive the action in our case, despite the plain ter ms of Civ.R. 3(A), has the effect not of avoiding unn ecessary procedural hoop jumping, but of extending the statute of limitations beyond t he term set by the legislatu re. {¶ 26} We have little difficulty in concluding that the rule announced in Goolsby , 61 Ohio St.3d 549, 575 N.E.2d 801, does not apply in this cas e. But that leaves us with the question of the continued viability of our h olding in Goolsby

. Had we simply applied the plain la nguage of the statutory schem e in Goolsby , we would have reached a different result. Our decision in that ca se, however, was driven by an interest in judicial economy and avoiding unnecess ary procedural hurdles. As today’s case demonstrates, however, some courts ha ve extended Goolsby well beyond the facts of that case, and in so doing, have exte nded the statute of limitations beyond what was ordained by the legislat ure. To prevent any further confusion, we make clear today that Goolsby is limited to the factual circumstance that motivated its holding. Thus, the rule announ ced in Goolsby

— that a new instruction to the clerk to serve a complaint that i s made after Civ.R.

1. See, e.g., Supreme Court of Ohio Case Information, case No. 2008-1265, https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2008/12 65 (accessed Apr. 2, 2020) [https://perma.cc/FA9J-GZVY].January Term, 2020

11 3(A)’s commencement period has expired may be treated as a dism issal and refiling for purposes of the savings statute—applies only when the statu te of limitations has not yet expired. Nor Does the “Attempt to C ommence” Langu age Save Moore {¶ 27} Moore also argues that the failure to serve a complaint within Civ.R. 3(A)’s one-year commencement period is not determinative becaus e the savings statute applies to “any action that is commenced or attempted to be commenced.” (Emphasis added.) R.C. 2305.19(A). His argument goes like thi s: (1) he attempted to commence the action when he filed the complaint and made the initial request for service on Dr. Humphreys, ( 2) his claim failed “otherwise t han upon the merits” on July 6, 2016, when he failed to obtain service during Civ.R. 3(A)’s one-year commencement period, but (3) the savings statute provided him a n additional year (until July 5, 2017) to commence a new action, (4) which he acc omplished when
he issued instructions to the c lerk and obtained service in Mar ch 2017. {¶ 28} It is true that we have applied the savings statute when an act ion has
not been commenced. In Thomas v. Freeman , 79 Ohio St.3d 221, 680 N.E.2d 997 (1997), we dealt with an action in which the plaintiff had file d a lawsuit and requested service within the s tatute-of-limitations period. Id. at 227. After the limitations period had run, but within Civ.R. 3(A)’s commenceme nt period, the action was dismissed without pre judice without the plaintiff ha ving obtained
service. Id. Under these facts, we held that the plaintiff could use the sav ings statute to commence a new action within one year of the dismiss al without prejudice. Id. at 227-228. {¶ 29} Thomas dealt with a situation in which the terms of the savings statute had been complied with. There was an attempt to commen ce the action (the filing of the complaint and a request for service), the action was dismissed other than on the merits prior to the running of Civ. R. 3(A)’s comme ncement period,
and a new action was filed. In contrast, here, the requirement s of the savings statuteS UPREME C OURT OF O HIO

12 have not been met: there was no failure other than on the merit s and there has been no filing of a new action. {¶ 30} Moore would have us ignore these statutory requirements and ord ain that the requirements of the savings statute were met by operat ion of law when Civ.R. 3(A)’s one-year commencem ent period passed without servi ce of the complaint. In other words, Moore posits that when a plaintiff does not obtain service during the one-year commencement timeframe, the savings statute automatically gives him another year to perfect service. Moore ’s argument would essentially change Civ.R. 3(A)’s one-year commencement rule to a two-year commencement rule. We decline to adopt such a construction in the face of the explicit language of Civ.R. 3(A) . The savings statute does not apply automatically to extend the one-year commencem ent requirement. It applies on ly when its terms are met: when an action is commenced or attempted to be commenc ed; when a judgment is reversed or an acti on fails other than on the merit s, that is, when there is either a voluntary dismissa l without prejudice under Civ.R. 41(A) or an involuntary dismissal without p rejudice under Civ.R. 41(B); and when the complaint is refiled within one year.
We Cannot Save Moore by Modifying the Tri al Court’s Judgment

{¶ 31} The dissent agrees that we should not engage in the legal ficti on of treating Moore’s second request f or service as a dismissal and refiling, but it would have us do something similar. It u rges that we adopt what it t erms the “alternative rationale” of the court of appeal s and “ ‘modify the [trial cou rt’s] judgment [granting summary judgment] so that the dismissal would be with out prejudice.’ ” Dissenting opinion at ¶ 38, quoting 2018-Ohio-2831, 117 N.E.3d 89, at ¶ 94. It says that upon remand from this c ourt, Moore would have yet ano ther year in which he could file his claim against Dr. Humphreys. Dissenting opin ion at ¶ 39. (And then, of course, another year in which to serve the complaint u nder Civ. R. 3(A).) In other words, even though the statute of limitations indisput ably expired on JulyJanuary Term, 2020

13 7, 2015 (and the deadline to commence on July 6, 2016), the dis sent would allow
Moore until at least late 2022 to “commence” his action against Dr. Humphreys. As far as the claims against the other parties, the dissent pos tulates that these would continue in the trial court, despite the fact that the trial co urt already entered summary judgment in fa vor of the defendants. {¶ 32} But the imaginative fiction engaged in by the dissent fares no better than the one employed by the Tenth District. Remember, Moore f iled his action on July 6, 2015. To avoid the running of the statute of limitatio ns, he had to commence under Civ.R. 3(A) by obtaining service by July 6, 2016, or volu ntarily dismiss his action within this time period to obtain the benefit of the sav ings statute. He failed to do so and thus, his action is time-barred. Thus, even if th e dissent were to have its way and the grant of summary judgment in favor of Dr. Humph reys were somehow converted to a dismissal without prejudice, it wouldn’t matter. Moore
still couldn’t refile because t he statute of limitations has ex pired. {¶ 33} For this reason, the dissent’s ext ensive argument that the tria l court erred in granting judgment on the merits while Dr. Humphreys wa s contesting the lack of service is an unnecessary tangent. However the judgmen t is characterized, Moore can’t refile; the statute of limitations has expired. No netheless, to avoid reader confusion, it is worth pointing out that the dissent is simply wrong in its premise. {¶ 34} Nothing in the Rules of Civil Procedure prevents a defendant fr om simultaneously asserting a statute-of-limitations defense and a defense of lack of service of process. The service requirement protects the defen dant’s right to due

process. See Wainscott v. St. Louis-San Francisco Ry. Co. , 47 Ohio St.2d 133, 137, 351 N.E.2d 466 (1976). A court may enter judgment against a plaintiff even when it has not acquired jurisdiction over the defendant, because in such a case the plaintiff has submitted to the court’s jurisdiction by filing t he complaint. Thus, we have explained that a party may participate in a case—and there by assertS UPREME C OURT OF O HIO

14 affirmative defenses—and at the same time continue to maintain the defense of insufficiency of process as long as the defense was properly ra ised in the answer and properly preserved. Gliozzo , 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, at syllabus. In this vein, in Maryhew v. Yova , 11 Ohio St.3d 154, 464 N.E.2d 538 (1984), we affirmed a trial c ourt’s dismissal of an action with prejudice in
which a defendant had simultaneous ly asserted both failure-of-s ervice and statuteof-limitations defenses. See Maryhew v. Yova , 11th Dist. Trumbull No. 3138, 1982 WL 5690, *1 (Nov. 26, 1982), aff’d , 11 Ohio St.3d 154, 464 N.E.2d 538 (1984);
see also Sisk, 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d 271 (instructing that the plaintiff’s second dismissal was with prejudice, even though the plaintiff had never obtained service over the defendant); Cundall v. U.S. Bank , 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 21, fn. 1 (decidi ng the case based
on the defendants’ statute-o f-limitations defense without reach ing the defense of lack of personal jurisdiction). {¶ 35} The dissent cites broad statemen ts from a number of federal cou rts dealing with personal jurisdiction generally, and claims these statements support its view that a court is powerless to enter a dismissal with prejud ice when service has
not been obtained. But none of these cases deal with a dismiss al for failure of service following the expiration of the statute of limitations. Indeed, even though Fed.R.Civ.P. 4(m) provides for a dismissal without prejudice fo r a lack of timely service, a federal court may enter a dismissal with prejudice f or failure of service when the expiration of the statute of limitations would prevent the filing of a new complaint. See, e.g., Cardenas v. Chicago , 646 F.3d 1001 (7th Cir.2011) (dismissal with prejudice was appropriate when service requirements were n ot met properly and the statute of limitations had expired); Zapata v. New York City , 502 F.3d 192 (2d Cir.2007) (upholding dismissal of claim as “time barred” where plaintiff failed to obtain service within limitations period); see also 1 Moore, Moore’s Federal
Practice , Section 4.82[2], 4-150 to 4-151 (3d Ed.1997) (“any dismissal orderedJanuary Term, 2020

15 after expiration of the statute of limitations for failure to e stablish good cause [to extend service date] will be, in effect, with prejudice because plaintiff will be precluded from commencing a new action”). But again, this is a ll largely beside the point. Moore can’t file a new action because the action be came time-barred
when he failed to commence hi s action within the limitations pe riod. {¶ 36} We resolve the certified-conflic t question by stating that the savings statute may be applied only when its terms have been met. Thus , when, as here, (1) a plaintiff attempts to commence an action but fails to obt ain service within Civ.R. 3(A)’s one-year commencemen t period and (2) the action h as neither failed other than on the merits during that one-year period (i.e., bee n dismissed without prejudice) nor been refiled, (3) the plaintiff cannot use the s avings statute to revive the action outside the limitations period.
Conclusion {¶ 37} Moore’s instructions for servi ce of process, filed after the st atute of limitations had expired, c annot be treated as a voluntary dismi ssal and a refiling of his complaint. Because there was neither a dismissal otherwise than on the merits nor the filing of a new action, th e savings statute does not ap ply. The court of appeals erred in concluding othe rwise. We reinstate the trial court’s grant of summary judgment in favor of Dr. Humphreys and Mount Carmel. I n the proceeding below, the court of appeals did not reach Moore’s fi nal assignment of error, which asserted that Centra l Ohio Anesthesia could be lia ble even if the claim against Dr. Humphreys was barred by the statute of limitations. In light of our decision today, we remand to the court of appeals for considera tion of Moore’s final assignment of error and for other proceedings consistent with t his opinion. Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and K ENNEDY , F RENCH , and F ISCHER , JJ., concur.
S TEWART , J., dissents, with an opinion joined by D ONNELLY , J.S UPREME C OURT OF O HIO

16 _________________ S TEWART , J., dissenting. {¶ 38} I agree with the majority opinion’s decision to limit Goolsby v. Anderson Concrete Corp. , 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), to the facts of that case and with the major ity opinion’s holding that appel lee Michael Moore’s second request for service did not amount to dismissing and ref iling the action against appellant Dr. Eric Humphr eys. I would nevertheless aff irm the Tenth District Court of Appeals’ judgme nt based on its alternative ra tionale, which states:

However, even if we concluded th at the trial court should have dismissed the complaint because service was not obtained within one year, we would modify the judgment so that the dismissal wo uld be without prejudice. This is abundantly clear, and if that oc curred,
Moore would be able to refile h is complaint under the savings

statute.

2018-Ohio-2831, 117 N.E.3d 89, ¶ 94. {¶ 39} I agree with the appellate court that since Moore’s action agai nst Dr. Humphreys was dismissed for lack of service, it should be viewe d as a dismissal without prejudice and thus a fa ilure otherwise than on the meri ts. Moore should have an additional year to ref ile his complaint and serve it on Dr. Humphreys. Accordingly, I respectfully dissent from the majority’s conclus ion that the savings statute does not apply to save Moore’s claims. Commencement of a Civil Action, t he Statute of Limitations, and the Savings Statute {¶ 40} Pursuant to Civ.R. 3(A), a civil action is commenced when a pla intiff files a complaint and obtains s ervice on a named defendant with in one year of that filing. Although Civ.R. 3(A) di ctates how an action is commenc ed, it does not barJanuary Term, 2020

17 an action from being commenced outside the time period prescrib ed by a statute of
limitations. {¶ 41} Suppose, for instance, that a pl aintiff has a cause of action f or an injury that occurred on January 1, 2018. Because the statute o f limitations for such a claim is two years, see R.C. 2305.10(A), the limitations period for commencing the action would be January 1, 2020. Id. Suppose further that the plaintiff files suit on February 1, 2020—one month after the statute of limitations expired. The action
would nevertheless be deemed “c ommenced,” for purposes of Civ.R . 3(A), so long
as the named defendant is served with the complaint within one year of filing. Of course, the defendant may raise the statute of limitations as a defense to the action by asserting it in the first responsive pleading. See Mills v. Whitehouse Trucking
Co ., 40 Ohio St.2d 55, 59-60, 320 N.E.2d 668 (1974). But if the defendant fails to assert a statute-of-limitations defense, the defense is waived and the action will proceed in the ordinary course. Id. ; see also R.C. 2305.03(A) (providing that when “interposed by proper plea by a party to an action * * *, lapse of time shall be a bar to the action”); Civ.R. 8(C) (re quiring a defendant to timely a ssert a statute-oflimitations defense). {¶ 42} Civ.R. 3(A) establishes when an action is commenced and therefo re is naturally an important part of a statute-of-limitations anal ysis. Nevertheless, Civ.R. 3(A) and the statutory timing provisions for commencemen t of civil actions involve different concepts. {¶ 43} R.C. 2305.19, the savings statute, insulates a plaintiff’s clai m from a statute-of-limitations defense when a complaint is filed, dis missed, and then refiled after the statute-of-limitations period has run. But R .C. 2305.19(A) will not save a refiled action unless three prerequisites are met: (1) t he plaintiff either commences or at least attempts to commence the action, (2) a ju dgment for the plaintiff is reversed or the action fails otherwise than on the merits, and (3) within one year of the dismissal or failure, the plaintiff commences a new action againstS UPREME C OURT OF O HIO

18 the defendant. If the plaintiff satisfies these prerequisites, the newly commenced action relates back to the date on which the complaint had been filed in the original
action. See Frysinger v. Leech , 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). If the complaint in the original action was filed outside the stat ute-of-limitations period, the defendant may assert a statute-of-limitations defen se in the event that the original action is dismissed and a new one is commenced wit hin one year, just as he could have done in the original action. But if, in the o riginal action, the plaintiff filed the complaint within the statutory time limit, the defendant will have
no viable statute-of-limitations defense if that action is dism issed without prejudice and a new one is commenced within one year because of the conce pt of relation
back. See id. {¶ 44} The majority seems to take the position that the statute of lim itations operates as a jurisdictional bar to a lawsuit as a matter of co urse. This is not true.
The statute of limitations is an affirmative defense in an acti on; the defense is waived when it is not properly asserted.
A Dismissal for Failure of Servi ce is Not a Dismissal on the Me rits

{¶ 45} Dr. Humphreys and appellants M ount Carmel Health, d.b.a. Mount Carmel St. Ann’s Hospital, and Ce ntral Ohio Anesthesia, Inc. (c ollectively, “appellants”) argue that Moore’s action against Dr. Humphreys f ails on the merits because Dr. Humphreys was not served within one year of Moore’s filing of the complaint and therefore the action was never commenced before t he statute of limitations expired. Although this argument might appear to be sound on its face, it presents a couple of procedural problems that the majority f ails to adequately
address. {¶ 46} In Dr. Humphreys’s motion for summary judgment, he asserted an insufficiency-of-service defense together with a statute-of-lim itations defense as part of an overall claim that the action filed against him shou ld be dismissed with prejudice because Moore failed to commence the action against D r. HumphreysJanuary Term, 2020

19 within the statute of limitations. By pursuing an insufficienc y-of-service defense, Dr. Humphreys in effect maintains that the trial court never ac quired personal jurisdiction over him. See Laneve v. Atlas Recycling, Inc. , 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 22 (failure to perfect service ultimately affects whether a court has personal jurisdiction over defendant); see also Thomas v.
Freeman , 79 Ohio St.3d 221, 225, 680 N.E.2d 997 (1997) (“where a case is dismissed because the court did not have jurisdiction, such as in this case where service has not been perfected, the dismissal is always otherwi se than on the merits”). Yet, while not submitting to the trial court’s juris diction, Dr. Humphreys simultaneously asked the trial court to entertain his statute-o f-limitations defense and enter judgment in his favor on the merits of the claim. {¶ 47} Dr. Humphreys wants to have it both ways: he wants to maintain that the trial court does not have jurisdiction over him as a defend ant while also relying on the jurisdictional authority of the court to grant judgment in his favor on a substantive and personal defens e to an action. This court shou ld not countenance these conflicting arguments. Sinochem Intl. Co. Ltd. v. Malaysia Intl. Shipping Corp ., 549 U.S. 422, 430-431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (In the federal system, a court “generally may not rule on the merits o f a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)”); Lampe v. Xouth, Inc. , 952 F.2d 697, 700 (3d Cir.1991) (“It is an elementary requirement t hat personal jurisdiction must be established in every case before a court h as power to render any judgment”); Sutton v. Stolt-Nielsen Transp. Group, Ltd. , Tenn.App. No. E2008-01033-COA-R3-CV, 2009 WL 499521, *5 (Feb. 27, 2009) (“Gen erally, a court must have both personal a nd subject matter jurisdiction i n order to adjudicate a claim on the merits”); see also Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (a defendant must t imely assert a lack-of-personal-jurisdiction defense “or he may forgo that rig ht, effectivelyS UPREME C OURT OF O HIO

20 consenting to the court’s exercise of adjudicatory authority”); Norris v. Six Flags Theme Parks, Inc. , 102 Haw. 203, 74 P.3d 26 (2003) (“trial courts must determine the question of jurisdiction before deciding other dispositiona l matters such as a statute of limitations defense”); Brooks v. Bacardi Rum Corp. , 943 F.Supp. 559, 562-563 (E.D.Pa.1996) (after the di strict court granted the def endant’s motion to dismiss the complaint for lack of personal jurisdiction, the di strict court declined to review the defendant’s statute-of-limitations defense); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 141 (5th Cir.2007), fn. 1 (when a defendant asserted a statute-of-limitations defense, it concede d that the court had personal jurisdiction). {¶ 48} Of course, no rule prevents a defendant from presenting a statu te-oflimitations defense in addition to an insufficiency-of-service defense, but these arguments are designed to be o ffered in the alternative. After all, the two defenses
are at odds with each other. The defense of insufficient servi ce challenges a trial court’s personal jurisdiction over a defendant and a dismissal on this ground results in a dismissal without prejudice. On the other hand, a statute -of-limitations defense is a substantive defense that challenges the merits of a claim; a dismissal on such grounds is a dismissal with prejudice. LaBarbera v. Batsch , 10 Ohio St.2d 106, 115-116, 227 N.E.2d 55 (1967). In this case, however, maintain ing an insufficiency-of-service defense and a statute-of-limitations d efense in the alternative does nothing to help the defendants’ position. If Dr. Humphreys asserted and prevailed on his insufficiency-of-service defense, then the case against
him should be dismissed without prejudice. On the other hand, if Dr. Humphreys asked the court to rule on his statute-of-limitations defense, then he would be conceding to the trial court’s jurisdiction over him as a defen dant and any insufficiency-of-service claim would no longer matter. The pro blem with doingJanuary Term, 2020

21 this, however, is that if Dr. Humphreys were to concede that th e trial court has personal jurisdiction over him, t hen the action would be deemed commenced. 2 {¶ 49} The majority maintains that there is nothing wrong with a trial court proceeding to rule on a defendant’s merits defense after determ ining that personal jurisdiction over the defendant does not exist. As support for this position, the majority explains that the service requirement is meant to prot ect a defendant’s right to due process and that a court may enter a judgment agai nst a plaintiff even when it has not acquired jurisdiction over the defendant becaus e the plaintiff has submitted to the trial court’s jurisdiction by filing the compl aint. It further notes that in one of our previous cases, Maryhew v. Yova , 11 Ohio St.3d 154, 464 N.E.2d 538 (1984), this court affirmed a t rial court’s dismissal of an action with prejudice
when the defendant asserted both a failure-of-service defense a nd statute-oflimitations defense. Lastly, the majority cites certain federa l circuit-court decisions upholding dismissals with prejudice when service was not perfec ted within the time frame set forth in Fed.R.Civ.P. 4(m) and the statute of limitat ions had run on the claims. Although at first glance these arguments may seem pers uasive, they disintegrate under even the mildest scrutiny. {¶ 50} In discussing Yova , the majority leaves out the fact that the issue in that case had nothing to do with whe ther the trial court could rule on a defendant’s statute-of-limitations defense after determining that service h ad failed and that it lacked personal jurisdiction ove r the defendant. Rather, the m ain issue in Yova was whether the defendant’s reque st for additional time to respond to the complaint

2. Although Civ.R. 3(A) states that an action “is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant,” serving the defendant should not be viewed as a strict requirement to comme ncement of an action. If that were the case, a trial court should hold that an action was never co mmenced when a defendant waives service under Civ.R. 4(D). The same should also be true for an y action in which the defendant is not served but still makes an appearance and does not raise a f ailure-of-service defense. Ultimately, Civ.R. 3(A)’s service rule requires that the court obtain perso nal jurisdiction over any defendant within one year of the complaint being filed, otherwise the act ion may be dismissed for insufficiency of service or for failure to commence.S UPREME C OURT OF O HIO

22 counted as a waiver of an insuffi ciency-of-service defense. We answered that question in the negative and affirmed the decision of the appel late court on that ground only. Yova was not concerned with whether a trial court may grant a
defendant’s statute-of-limitations defense while the defendant is simultaneously asserting that the trial court does not have jurisdiction over him. That issue is squarely before us now in this case. The majority’s argument r egarding this issue boils down to nothing more than the following: because we never said anything about it before in a case we decided over 35 years ago, it must be okay. I, however, am not persuaded by that faulty reasoning. {¶ 51} Nor am I persuaded by the federal cases that the majority cites or its
reference to statements in Moore’s Federal Practice (3d Ed.1997) synthesizing those cases. Under the Federal Rules of Civil Procedure, a civ il action is commenced at the moment a plaintiff files a complaint. See Fed.R.Civ.P. 3. Fed.R.Civ.P. 4(m) states that if the plaintiff fails to serve t he defendant within 90 days after the complaint is f iled, then the court must dismiss the action without prejudice or order that service be made within a specified time. The rul e also states that for good cause shown, the c ourt must extend the time for s ervice for an appropriate amount of time. Id. A federal court often considers the relative hardships a party is facing when exercising its discretion to e xtend the time or to
dismiss the action. See Coleman v. Milwaukee Bd. of School Dirs ., 290 F.3d 932, 933-934 (7th Cir.2002). Importantly, there is no savings statu te similar to R.C. 2305.19 that applies to save a federal action that has been fil ed after the statute of
limitations has run. See Logan v. Music , C.D.Cal. No. CV 16-6364-SJO(E), 2017 WL 1369001 (Feb. 17, 2017), aff’d , C.D.Cal. No. CV 16-6364-SJO(E), 2017 WL 1393029 (Feb. 17, 2017). {¶ 52} In Cardenas v. Chicago , 646 F.3d 1001 (7th Cir.2011), and Zapata v. New York City , 502 F.3d 192 (2d Cir.2007), the issue before each circuit cou rt was whether a district court had abused its discretion when it dismissed the actionJanuary Term, 2020

23 with prejudice for failure to serve a defendant within Fed.R.Ci v.P. 4(m)’s specified timeframe. In each case, the respe ctive circuit court held tha t the district court had not abused its discretion in declining to extend the time for s ervice and dismissing the action, because there was no good cause for an extension. In each case, the circuit court upheld the decision to dismiss the action with pr ejudice when the statute of limitations had expired during the pendency of the s uit. But in affirming the district courts’ dismissals, the circuit courts made clear that pursuant to Fed.R.Civ.P. 4(m), a dismissal for failure of service is suppos ed to be without prejudice. {¶ 53} In Zapata , the Second Circuit noted that the plaintiff had not challenged the district court’s decision to dismiss the action with prejudice. Id. at 197, fn. 6. The Second Circuit further stated:

Where, as here, good cause is lacking [for an extension], but the dismissal without prejudice in combination with the statute of
limitations would result in a dismissal with prejudice, we will not
find an abuse of discretion in t he procedure used by the distri ct court, so long as there are sufficient indications on the record that the district court weighed the impact that a dismissal or extension would have on the parties.

(Footnote omitted.) Id. at 197. {¶ 54} Similarly, in upholding the dist rict court’s decision in
Cardenas , the Seventh Circuit stated:

A dismissal pursuant to a Rule 12(b)(5) motion ordinarily shoul d be entered without prejudice. See Fed.R.Civ.P. 4(m); [ United States

v. ] Ligas , 549 F.3d [497,] 501 [7th Cir .2008]. The district court,S UPREME C OURT OF O HIO

24 however, dismissed the claims a gainst [the defendant] with prejudice based on the fact that the applicable statute of limi tations had expired while the case was pending. Cardenas , 2010 U.S. Dist. LEXIS 15253, 2010 WL 610621, at *5. The Plaintiffs argued for the first time at oral argument that its order was inconsistent with Rule 4(m)’s clear “without prejudice” requirement. Both the district court and the Plaintiffs correctly recognize that any refiled suit would be time-barred. That bar effects a result similar to a dismissal with prejudice: “[I]f the statute of lim itations has meanwhile expired it will be the limitations defense that g reets [any] new action, which will make the case just as dead as a disposition on the merits * * *.” David Siegel, Practice Commentary on Fed.R.Civ.P. 4 , C4-38, reprinted at 28 U.S.C.A. Fed.R.Civ.P. 4 at 211 (West 2008).

(Fifth and sixth brackets and ellipsis sic.) Id. at 1007-1008. {¶ 55} When citing to Cardenas , 646 F.3d 1001, and Zapata , 502 F.3d 192, the majority fails to discuss that before those circuit courts allowed the district courts’ decisions to stand, the circuit courts made sure that t he procedural irregularity would have no actual effect on the plaintiffs’ rig ht to proceed with refiling. Indeed, in Cardenas , the Seventh Circuit noted that when deciding whether to extend the time for service, federal courts should c onsider whether the plaintiff would be time-barred by the statute of limitations if the court were to dismiss the action and plaintiffs were to refile. Id . at 1007. But in each case, the
circuit courts found that the dis trict courts had considered th e plaintiffs’ inability to refile the action because the statute of limitations had expire d and that the district
courts had not abused t heir discretion in fi nding a lack of goo d cause shown for an extension of the service deadline. Accordingly, the circuit co urts upheld theJanuary Term, 2020

25 dismissals with prejudice. Since no federal rule or statute wo uld have saved the actions from a statute-of-limitations defense, dismissal with p rejudice accomplished the inescapable outcome. {¶ 56} The rationale that the courts used in Cardenas and Zapata does not apply here, however, because Ohio has a savings statute. By al lowing the trial court to entertain Dr. Humphreys’s merits defense after determining t hat it did not have jurisdiction over Dr. Humphreys, the majority forecloses Moore from refiling his claim and taking shelter from a statute-of-limitations defense under the savings statute—which applies to actions that are attempted to be comme nced and dismissed without prejudice. Accordingly, a plaintiff’s right to due process is at
stake in situations like this one in which a trial court lackin g jurisdiction over a defendant improperly entertains that defendant’s merits defense

. {¶ 57} Another procedural problem in th is matter is the fact that Dr. Humphreys is asking this court to uphold a merits judgment in h is favor in an action that he maintains was never even commenced against him. How th e majority squares this irregularity is unclear, because it chooses to say nothing about it. But what should be clear to the majorit y is that by asking for summ ary judgment in his favor, Dr. Humphreys takes a position that is wholly inconsiste nt with his claim
that the action fails for lack of commencement; if no action wa s ever commenced,
then there is no commenced acti on under which the court may ent er a merits judgment. If Dr. Humphreys wanted to maintain a lack-of-commen cement defense, he should have raised it in a responsive pleading and then aske d the court to strike the complaint from the record once a year had passed and he had still not been served. By asking to strike the complaint, Dr. Humphreys would have been asking the court to take an action consistent with his theory that the complaint filed against him is a nullity. If the majority is going to uphold the dismi ssal with prejudice in this case, then it might want to take some time to explain why Dr. Humphreys’s
actions do not amount to a waiver of the lack-of-commencement d efense.S UPREME C OURT OF O HIO

26 Other Problems with the Majority Opinion {¶ 58} Even if this court were to look beyond the procedural problems addressed above, the majority’s explanation for why Moore’s act ion must be deemed dismissed on the merits is still unsound. The majority takes the position that to “avoid the running of the statute of limitations, [Moor e] had to commence under Civ.R. 3(A) by obtaining service by July 6, 2016, or volu ntarily dismiss his action within this time period to obtain the benefit of the sav ings statute.” Majority opinion at ¶ 32. Noticeably, the majority offers no support fo r the latter half of this sentence, whether that be a citation to a civil rule, statute, or even some parsing of potentially applicable cases. {¶ 59} Although Civ.R. 3(A) provides the requirements for the commencement of an action, it does not say what the consequence s are when a plaintiff fails to meet those re quirements. The action may be dismissed, but
whether that dismissal should be with or without prejudice is u nclear. Our ruling
in Goolsby , 61 Ohio St.3d 549, 575 N.E.2d 801, indicates that as long as a case may be refiled within the statute -of-limitations period, a dismissa l before that period expires is a dismissal without pr ejudice, even if the plaintiff fails to perfect service on the defendant within one year of filing. And our ruling in Thomas , 79 Ohio St.3d 221, 680 N.E.2d 997, provides that even when a statute-of -limitations period has run and a case has been dismissed, the savings statute may still apply to save the action when the dismissal was without prejudice and occurre d within the oneyear Civ.R. 3(A) service timeframe . In this case, the majority opinion takes the position that an action must be dismissed with prejudice if it is dismissed on insufficiency-of-service grounds f ollowing the Civ.R. 3(A) one- year service period, and the statute-of-limita tions period has expired. But neither the Civil Rules
nor the Revised Code r equires this outcome. {¶ 60} Although Civ.R. 3(A) establishes when an action is commenced, i t is not a timing provision. Instead, it is a housekeeping measu re. See 1970 StaffJanuary Term, 2020

27 Note, Civ.R. 3 (“service within [ the] one year requirement is r etained from §2305.17, R.C., as amended in 1965, and is based on the philosophy that dockets should be cleared if, within the reasonable time of one year, service has not been
obtained ” [emphasis added]). Furthermore, Ohio’s savings statute, R.C. 2305.19, applies to actions “attempte d to be commenced,” R.C. 2305.19(A) . Presently, nothing says that an action meets the definition of an “action that is * * * attempted to be commenced,” id ., only if that action is dismissed within the confines of Civ. R. 3(A)’s one-year service period. In situations like this, in wh ich there is no authority
or reason that warrants a dismi ssal with prejudice, the court s hould err in favor of preserving the claim for a resolution on its merits. See Thomas at 226 (“Dismissal with prejudice is a very severe and permanent sanction, to be a pplied with great caution”); see also Civ.R. 1(B) (Ohio’s Rules of Civil Procedure “shall be construed and applied to effect just results by eliminating del ay, unnecessary expense and all other impediment s to the expeditious administra tion of justice”).
Moore Still Has a Viable Cause of Action Against Dr. Humphreys {¶ 61} For the reasons discussed above, I would treat the trial court’ s dismissal of the complaint again st Dr. Humphreys as a dismissal without prejudice on insufficiency-of-service grounds and hold that Moore may sti ll take advantage of the savings statute by commencing a new action against Dr. H umphreys within one year of this court’s decision. {¶ 62} Although Moore’s legal action ag ainst Dr. Humphreys was never “commenced” within the meaning of Civ.R. 3(A)—because service w as unsuccessful within the one-year timeframe following the filing of the complaint— I find that Moore nevertheless attempted to commence the action against Dr. Humphreys by filing the complaint on July 6, 2015, and attempti ng service within

one year. See Thomas , 79 Ohio St.3d at 225, 680 N.E.2d 997; see also Motorists Mut. Ins. Co. v. Huron Rd. Hosp. , 73 Ohio St.3d 391, 396, 653 N.E.2d 235 (1995).S UPREME C OURT OF O HIO

28 {¶ 63} The action remained pending on the trial court’s docket as an a ction attempted to be commenced against Dr. Humphreys until Dr. Humph reys sought and was granted dismissal for insufficiency of service. Becaus e a dismissal for insufficiency of service should not be treated as a dismissal w ith prejudice, even if the statute-of-limitations period for commencing an action has expired at the time of dismissal, I would find that M oore meets the first two prere quisites of the savings statute. Thus, if Moore were to refile his lawsuit against Dr. Humphreys and successfully commence the lawsuit by obtaining service within t he year, then the savings statute should app ly to preserve his claim. {¶ 64} What this means for the case going forward is that the complain t against Dr. Humphreys is dismissed without prejudice, and the t rial court’s granting of summary judgment in favor of Central Ohio Anesthesia and Mou nt Carmel is reversed, because the basis on which those defendants sought re lief—the statuteof-limitations bar—is not yet ripe for review. The action rema ins pending against
Central Ohio Anesthesia and Mount Carmel because those parties were properly
served. If Moore wishes to take advantage of the savings statu te by refiling his claim against Dr. Humphreys a nd perfecting service, and if Moor e wants to keep all three parties as defendants in the same lawsuit, then he co uld voluntarily dismiss his claims against Central Ohio Anesthesia and Mount Carmel on remand under Civ.R. 41(A)(1)(a). He could the n refile and asse rt his claims against all parties.
Practical Effects {¶ 65} The majority accuses this disse nt and a unanimous panel of the Tenth District of engaging in an “ima ginative fiction,” majority opin ion at ¶ 32, by construing the trial court’s dis missal of the complaint against Dr. Humphreys as a dismissal without prejudice. However, the majority might want to take a look at the practical effects of its own holding. {¶ 66} Moore filed his complaint against Dr. Humphreys, Central Ohio Anesthesia, and Mount Carmel on July 6, 2015. Dr. Humphreys be came aware ofJanuary Term, 2020

29 Moore’s pending lawsuit on July 14, 2015, when an electronic co py of the summons and complaint addressed to Central Ohio Anesthesia was e-mailed to Dr. Humphreys from his liability insurer. The common-pleas case do cket indicates that service on Dr. Humphreys was complete on July 16, 2015, somethi ng Dr. Humphreys would first contest in his motion for summary judgmen t, which was filed on February 27, 2017. Through their attorneys, Dr. Humph reys and Central Ohio Anesthesia answered the complaint on July 30, 2015, and pa rticipated in the litigation for over a year and a half. Dr. Humphreys did not s eek dismissal for insufficiency of service under Civ.R. 4(E) after six months. 3 And the trial court also took no action to dismiss the complaint under Civ.R. 4(E) or 3(A)—perhaps because it was relying on Dr. Humphreys to assert that argument if it applied or on its own docket as evidence of commencement. When Dr. Humphreys finally did ask the court to dismiss the action, he took the unorthodox ste p of asking the court to rule on his insufficiency-of-s ervice defense and his statute -of-limitations defense together. {¶ 67} What Dr. Humphreys and the other appellants want from this cour t, and what the majority opinion gives them, is a clear declaratio n that a defendant may maintain an insufficiency-o f-service defense simultaneouslywith a statute-oflimitations defense in order to secure the dismissal of an acti on with prejudice on insufficiency-of-service grounds, wh en that dismissal would oth erwise normally be without prejudice. This decision prevents a plaintiff from tak ing shelter under the

3. Civ.R. 4(E) states:

If a service of the summons and complaint is not made upon a de fendant within six months after the filing of the complaint and the par ty on whose behalf such service was required cannot show good cause why such servi ce was not made within that period, the action shall be dismissed as to that de fendant without prejudice upon the court’s own initiative with notice to such party or upon motion

. (Emphasis added.)S UPREME C OURT OF O HIO

30 savings statute if the plaintiff were to refile and attempt ser vice within one year of the dismissal. In order to craft this outcome, the majority mu st necessarily overlook the fact that a court lacking jurisdiction over the defendant i s nevertheless adjudicating a merits defense. Indeed, it must overlook the fa ct that the defendant is asking for an adjudication on the merits of an action that w as never commenced. And it must also overlook the logical inconsistency that arises from this court’s determination that a dismissal within the Civ.R. 3(A) service t imeframe is a dismissal without prejudice but that a dismissal outside the Ci v.R. 3(A) timeframe is a dismissal with prejudice, when under both scenarios the di smissal may have occurred after the statute of limitations expired. {¶ 68} Furthermore, the end result that the majority comes to—that dismissal for insufficiency of service is a dismissal with prej udice when Civ.R. 3(A)’s timeline has passed—contravenes both the Rules of Civil Procedure and the savings statute. The Rules of Civil Procedure are to be applie d to “effect just results by eliminating delay, unnecessary expense and all other impedim ents to the expeditious administration of justice.” Civ.R. 1(B). And R.C. 2305.19, “being a remedial statute, should be giv en a liberal construction to per mit the decision of cases upon their merits rather than upon mere technicalities of procedure.” Cero Realty Corp. v. Am. Mfrs. Mut. Ins. Co. , 171 Ohio St. 82, 85, 167 N.E.2d 774 (1960); accord Motorists Mut. Ins. Co. , 73 Ohio St.3d at 396, 653 N.E.2d 235 (“Savings statutes have been created to afford plaintiffs an op portunity to bring a new action after the running of the limitations period when an effort to bring the original action in a timely manner fails otherwise than on its merits”). Here, the majority is allowing a defendant , who has had notice of and par ticipated in an action from the beginning, to wait a year and a half before seeking a dismissal of the action in order to secure a dismissal with prejudice for failure of se rvice under Civ.R. 3(A)’s one-year service timeframe—a docket-clearing provision—i n order to prevent the plaintiff from taking shelter under the savings sta tute, which is aJanuary Term, 2020

31 remedial provision intended to pr eserve actions “attempted to b e commenced.” If
it is true that this dissent and the Tenth District’s position amounts to an “imaginative fiction,” majorit y opinion at ¶ 32, then the major ity’s position in comparison is a fever dream that turns Ohio’s procedural rules and the savings
statute on their heads.
Conclusion {¶ 69} For these reasons, I dissent from the majority opinion’s conclu sion that the savings statute does not apply to Moore’s claim. I wo uld affirm the Tenth District’s judgment on the alte rnative grounds stated in its op inion. 2018-Ohio2831, 117 N.E.3d 89, at ¶ 94.
D ONNELLY , J., concurs in the foregoing opinion.

_________________ Colley Shroyer & Abraham Co., L.P.A., and David I. Shroyer, for appellee. Arnold Todaro & Welch Co., L.P.A., and Grier D. Schaffer, for a ppellant
Mount Carmel Health d.b.a. Mount Carmel St. Ann’s Hospital. Carpenter Lipps & Leland, L.L.P., Theodore M. Munsell, Joel E. Sechler, Emily M. Vincent, and Michael H. Carpenter, for appellants Eric Humphreys, M.D., and Central Ohio Anesthesia, Inc.

_________________