by Wilton H. Strickland

The statute of limitations often plays a critical role in determining whether a lawsuit can proceed. If a complaint is filed after the applicable deadline, it will likely be dismissed even if it has merit and presents valid grounds for relief. What generates occasional confusion is how to determine when the limitations clock is “tolled” (i.e., paused), and if so, when it resumes running.

Montana law is clear that filing a complaint before the limitations deadline pauses the clock. See Gulf Ins. Co. v. Clark, 2001 MT 45, ¶ 32, 304 Mont. 264, 20 P.3d 780 (“all that is required to toll the statute of limitations is the filing of a complaint”). Most jurisdictions hold that the clock stays paused unless and until the complaint is dismissed. Just last week, however, the Montana Supreme Court held that the limitations clock can resume running on a timely-filed complaint even before it is dismissed. Est. of Phillips v. Robbins, 2024 MT 174. 

In Robbins, a man passed away as the alleged result of medical malpractice, and his estate filed a timely complaint after having followed the necessary pretrial procedures. However, the estate did not serve the complaint on the defendants, but rather filed an amended complaint and served it within the 60-day service deadline established by Mont. Code Ann. § 25-3-106. The defendants moved to dismiss, arguing that the estate had violated that statute by failing to timely serve the original complaint and thereby had restarted the limitations clock, which expired before the amended complaint was filed. Although the defendants admitted there was no Montana legal authority for restarting a limitations clock because of a lapsed service deadline, they pointed to a few such decisions from other jurisdictions. The trial court agreed and dismissed the amended complaint.

On appeal, the Montana Supreme Court affirmed the dismissal, thereby adopting the view that a lapsed service deadline causes the statute of limitations to resume running on a timely-filed complaint. This outcome is bizarre for a host of reasons.

• The court ignored and contradicted one of its prior decisions holding that the statute of limitations remained tolled on a medical-malpractice complaint, even though the complaint was served more than five years after the injury, and even though the plaintiff had dismissed her first complaint (which was never served) before filing her new one (which was served). Webb v. T.D., 275 Mont. 243, 912 P.2d 202 (1996). This bears a stunning resemblance to the Robbins case and makes dismissal even less warranted, considering that there was always an operative pleading on file and that service occurred within three years rather than five.
  
  
• As mentioned previously, most jurisdictions that have considered this issue hold that a timely-filed complaint tolls the statute of limitations until the complaint is dismissed, regardless of any lapsed service deadlines. See, e.g., Mann v. Am. Airlines, 324 F.3d 1088, 1090, 1091 (9th Cir. 2003); Datiari v. City of New York, No. 02-CV-5985 (DGT), 2004 U.S. Dist. LEXIS 23224, at *9, *10 (E.D.N.Y. Nov. 17, 2004); Malm v. Villegas, 342 P.3d 422, 425 (Colo. 2015); Silverton v. Marler, 389 P.2d 3, 5 (Alaska 1964); Am. Marine Corp. v. Sholin, 295 P.3d 924, 927 (Alaska 2013); Baba v. Goldstein, 996 A.2d 799, 802 (D.C. 2010); Taylor v. Lewis, 577 N.E.2d 986, 989 (Ind. Ct. App. 1991); Taylor v. Wiebold, 390 N.W.2d 128, 130 (Iowa 1986); Totura & Co. v. Williams, 754 So. 2d 671, 678 (Fla. 2000). These decisions explain that allowing a service deadline to influence the statute of limitations needlessly complicates matters and terminates valid claims that deserve to have their day in court.

• The few decisions going the other way have been widely discredited because they stem from an older version of Rule 4 of the Federal Rules of Civil Procedure that no longer exists, as discussed in Gerrard v. Andrews Int’l, Inc., No. 09-CV-1272, 2010 U.S. Dist. LEXIS 96843, at 6-10 (C.D. Ill. Sep. 16, 2010). Indeed, the Montana rules of procedure do not resemble the old Federal Rule 4, so there is no apparent basis for following that crimped line of case law. 

• Even if the limitations clock had resumed running and expired before the amended complaint was filed, it should make no difference because the amended complaint “relates back” to the timely-filed original complaint and must also be treated as timely per Rule 15(c)(1) of the Montana Rules of Civil Procedure. Yet the court rejected this argument because it was presented to the trial court in a post-judgment motion, which supposedly made it improper even though it had merit and was based on errors appearing in the order of dismissal.
  
  
• The amended complaint was served within the 60-day deadline established by Mont. Code Ann. § 25-3-106 and was the operative pleading when the defendants brought their motion to dismiss. As such, the motion to dismiss presented arguments against a defunct pleading that already had been dismissed and was not before the court.
  
  
• Mont. Code Ann. § 25-3-106 states that an untimely-served complaint must be dismissed “without prejudice,” meaning that the complaint may be re-filed and re-served. Yet the court affirmed a dismissal for untimely service with prejudice, a type of relief not found in the very statute supposedly necessitating dismissal.
  
  
• By seeking a type of relief not found within Mont. Code Ann. § 25-3-106, the defendants had made an “appearance” and thereby triggered the statute’s own exception to the dismissal requirement. After all, if a defending party appears in court, the goal of service has been accomplished and need not be further enforced.
  
  
• It is the public policy of Montana to hold a trial on the merits whenever possible. See Schmitz v. Vasquez, 1998 MT 314, ¶ 27, 292 Mont. 164, 970 P.2d 1039. It was possible here.

For whatever reason, the Montana Supreme Court was determined not to let this case have its day in court, but the consequences of this decision extend far beyond this case. By adopting a disfavored approach that allows a service deadline to accelerate the statute of limitations, the Montana Supreme Court has placed many pending or potential claims at risk. Perhaps when the collateral damage occurs the court will take a more careful look at this and re-adopt its holding from Webb. Until then, Montana practitioners need to stay on high alert with regard to the chronology of all their cases.