{¶ 23} I respectfully dissent.
{¶ 24} The following points are undisputed.
{¶ 25} John LeNeve's alleged injuries occurred on May 28, 2002. The original complaint was filed on May 28, 2004, against Atlas Recycling, Inc. and various John Doe defendants. On May 28, 2004, the statute of limitations on LaNeve's personal-injury claims expired. R.C. 2305.10.
{¶ 26} On May 6, 2005, LaNeve filed an amended complaint replacing two of the John Doe defendants with China Shipping (North America) Holding Company, Ltd. and ContainerPort Group, Inc. On May 26, 2005, ContainerPort was served with a copy of the amended complaint by certified mail. On June 2, 2005, China Shipping was likewise served with the amended complaint by certified mail.
{¶ 27} Since the statute of limitations on LaNeve's claims had run by the time China Shipping and ContainerPort were added as defendants, it is necessary that the amended complaint "relate back" to the date of the filing of the original complaint.
{¶ 28} Civ.R. 3(A), governing the commencement of a civil suit, provides: "A civil action is commenced by filing a complaint with the court, if service is *Page 50 obtained within one year from such filing upon a named defendant, or upon an incorrectly 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)."
{¶ 29} Under Civ.R. 3(A), "[a] plaintiff could therefore," as LaNeve has done here, "file a complaint on the last day of the limitations period and have a full year beyond that date within which to obtain service." Goolsby v.Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 550,575 N.E.2d 801.
{¶ 30} The time within which to perfect service of a complaint may be extended even further. "When service has not been obtained within one year of filing a complaint, and the subsequent refiling of an identical complaint within the rule would provide an additional year within which to obtain service and commence an action under Civ.R. 3(A), an instruction to the clerk to attempt service on the complaint will be equivalent to a refiling of the complaint." Id. at syllabus.
{¶ 31} The majority's decision depends upon construing LaNeve's May 6, 2005 amended complaint as a subsequent dismissal and refiling of the original complaint. Thus, the majority concludes that LaNeve had an additional year from May 6, 2005, within which to perfect service upon China Shipping and Container-Port.
{¶ 32} However, construing LaNeve's amended complaint as a refiled original complaint is not permissible under Ohio law.
{¶ 33} "In determining if a previously unknown, now known, defendant has been properly served so as to avoid the time of an applicable statute of limitations, Civ.R. 15(D) must be read in conjunction with Civ.R. 15(C) and 3(A)."Amerine v. Haughton Elevator Co. (1989),42 Ohio St.3d 57, 537 N.E.2d 208, at syllabus.
{¶ 34} Civ.R. 15(D) provides: "When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words `name unknown,' and a copy thereof must be served personally upon the defendant."
{¶ 35} Thus, "Civ.R. 15(D) specifically requires that the summons must be served personally upon the defendant." (Emphasis sic.) Amerine, 42 Ohio St.3d at 58,537 N.E.2d 208. This court has acknowledged the necessity of personal service of the original complaint on a John Doe defendant in order to have the amended complaint relate back. "Supreme Court authority indicates * * * that service of the original complaint and summons should be made on the former *Page 51 John Doe defendant, and that Civ.R. 15(D) explicitly requires these to be by personal service." Burya v. Lake MetroparksBd. of Park Commrs., 11th Dist. No. 2005-L-015,2006-Ohio-5192, 2006 WL 2798294, at If 39.2
{¶ 36} The facts in Burya are directly on point and ought to control the outcome in the present case. In Burya, the alleged injuries occurred on October 13, 2001. Id. at ¶ 2. The plaintiff's filed a complaint on October 8, 2003, including John Doe defendants. Id. at ¶ 4. On July 6, 2004, plaintiff's moved to file an amended complaint identifying one of the John Doe defendants. The amended complaint and summons were served upon the John Doe defendant by certified mail. Id. at ¶ 9. Thereafter, the former John Doe defendant moved for and was granted summary judgment on the ground that plaintiff's failed to serve him personally as required by Civ.R. 15(D). Id. at ¶ 11. This court agreed and affirmed the decision of the lower court. Id. at ¶ 40 ("it was proper for the trial court to grant him summary judgment on the basis of the statute of limitations, once the one year period provided for service under Civ.R. 3(A) ran in October, 2004").
{¶ 37} Our decision in Burya is consistent with the decisions of other Ohio appellate districts. See Easter v. Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, 2007 WL 853337, at ¶ 27 ("in order for an amended complaint to relate back to the original complaint vis a vis a defendant originally identified by a fictitious name, the plaintiff is required to personally serve the newly identified John Doe defendant with a copy of the original summons and complaint within one year of the filing of the original complaint"); Kramer v.Installations Unltd, Inc. (2002), 147 Ohio App.3d 350,355, 770 N.E.2d 632 ("Civ.R. 15(D) specifically required appellant to personally serve [a John Doe defendant] and service by certified mail is not a permitted form of service for a formerly fictitious, now identified defendant");Permanent Gen. Cos Ins. Co. v. Corrigan (May 24, 2001), 8th Dist. No. 78290, at 4, 2001 WL 563072 ("the personal service requirement of Civ.R. 15(D) is mandatory");McConville v. Jackson Comfort Sys., Inc. (1994),95 Ohio App.3d 297, 304, 642 N.E.2d 416 (requirements of Civ.R. 15(D) and 3(A) were not met where "[s]ervice of the amended complaint was accomplished by way of certified mail" and the "amended complaint was filed beyond the expiration date of the statute of limitations"); Gaston v. Toledo (1995),106 Ohio App.3d 66, 79, 665 N.E.2d 264 (It is "[o]nly when a plaintiff meets the personal service requirement under Civ.R. 15(D), that *Page 52 such plaintiff can benefit by the one-year of additional time to perfect service under Civ.R. 3(A)").
{¶ 38} Rather than follow Burya and the other authorities, the majority relies upon the case ofGoolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, for the proposition that "[w]hen service has not been obtained within one year of filing a complaint, and the subsequent refiling of an identical complaint within rule would provide an additional year within which to obtain service and commence an action under Civ.R 3(A), an instruction to the clerk to attempt service on the complaint will be equivalent to a refiling of the complaint." Id. at syllabus.
{¶ 39} Goolsby is easily distinguished. First, none of the defendants in Goolsby were John Doe defendants. Thus, the Supreme Court did not consider Civ.R. 3(A) "in conjunction with" Civ.R. 15(D) as it had inAmerine. Cf. Amerine, 42 Ohio St.3d 57,537 N.E.2d 208, at syllabus.
{¶ 40} Second, the holding in Goolsby is premised on the factual situation in which the amended complaint/instruction to the clerk to attempt service was madeprior to the expiration of the statute of limitations. As the Supreme Court stated, "[I]n the case at bar, the original complaint was filed, it was not dismissed, and a demand for service was made — all prior to theexpiration of the limitations period:' (Emphasis added.)61 Ohio St.3d at 551, 575 N.E.2d 801. It was "[u]nder thesecircumstances "that the plaintiff's attempt at service was construed as a dismissal and refiling. (Emphasis added). Id. Cf. Pewitt v. Roberts, 8th Dist. No. 85334,2005-Ohio-4298, 2005 WL 1994447, at ¶ 15 ("appellant's request for service on appellees in this case was not made until after the two year limitations period expired, while the request for service by the plaintiff in Goolsby was made within the original statute of limitations");Fetterolf v. Hoffmann-LaRoche, Inc. (1995),104 Ohio App.3d 272, 279, 661 N.E.2d 811 (holding that, underGoolsby, appellant's claim for loss of consortium was barred since service of the amended complaint occurred after the statute of limitations had run on this claim).
{¶ 41} Similarly, the majority's recourse to the saving statute, R.C. 2305.19(A), is unavailing. As with its reliance on Goolsby, the majority fails to apply the saving statute in conjunction with the Civil Rules applicable to John Doe defendants. The majority's application of the saving statute is also contrary to precedent. See Mustricv. Penn Traffic Corp. (Sept. 7, 2000), 10th Dist. No. 00AP-277,2000 WL 1264526, at *13-*14 (holding that R.C.2305.19(A) did not apply where the plaintiff attempted to commence the action against John Doe defendants by certified mail, "an improper method under Civ.R. 15(D)").
{¶ 42} In sum, the outcome of the present case is determined, under Amerine, Burya, and Civ.R. 15(D), by the fact that LaNeve attempted to serve China Shipping and ContainerPort by certified mail, rather than by personal service. *Page 53
{¶ 43} The majority opinion cavalierly disregards any consideration of Civ.R. 15(D) as a "technical service rule." Rather than being "an abstraction for the delectation of legal scholars," the failure of a party to properly amend pleadings, in this case by failing to obtain personal jurisdiction over two John Doe defendants, is not the sort of defect that the "spirit of the Civil Rules" allows us to ignore. Cf. Patterson v. V M Auto Body (1992),63 Ohio St.3d 573, 577, 589 N.E.2d 1306 (holdings based on the "spirit of the Civil Rules" do not "stand for the proposition * * * that where defects appear [in the amendment of pleadings] they may be ignored").
{¶ 44} The decision of the lower court should be affirmed.
2 Burya v. Lake Metroparks Bd. of Park Commrs., 11th Dist. No. 2005-L-015, 2006-Ohio-5192, 2006 WL 2798294, discretionary appeal allowed, 112 Ohio St.3d 1441,2007-Ohio-152, 860 N.E.2d 766 (on political subdivision immunity issue), certification granted, 112 Ohio St.3d 1438,2007-Ohio-152, 860 N.E.2d 764 (on political subdivision immunity issue).