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Kaufman v. Nisky, 2011 WL 7062500 (Del. Super.).

Plaintiff filed her Complaint on August 6, 2010, for personal injuries resulting from an automobile accident, but failed to serve it in a timely manner. It was dismissed pursuant to Rule 4(j). Plaintiff re-filed her lawsuit on April 25, 2011 and timely effectuated service upon defendant. Defendant filed a Motion to Dismiss based upon res judicata and expiration of the statute of limitations. Defendant argued that the initial dismissal was with prejudice, thus the doctrine of res judicata barred Plaintiff's second complaint. The Court recognized that res judicata precludes efforts to litigate the same causes of action more than once. In addition, the Court acknowledged that a dismissal with prejudice is considered adjudication on the merits under Delaware law. However, after review of the hearing transcript, the Court determined that the “with prejudice” denial of the Plaintiff's first complaint was a mistake and Plaintiff's complaint was actually dismissed “without prejudice.” The Court found this to be consistent with a denial pursuant to Rule 4(j) which expressly provides that dismissals for failure to effect timely service shall be “without prejudice.” Since the doctrine of Res Judicata does not prohibit a Plaintiff from re-filing when the first complaint was dismissed without prejudice, it did not function to bar Plaintiff's second complaint.

The Court held the Savings Statute, or 10 Del. C.§ 8118 “saved” the second complaint from being time-barred by the statute of limitations. In relevant part, the Savings Statute provides that: “(a) [i]f in any action duly commenced within the time limited therefore in this chapter [two years], …the writ is abated, or the action otherwise avoided or defeated…for any matter of form; …a new action may be commenced, for the same cause of action, at any time within one year after the abatement or other determination of the original action…” Since Plaintiff's original complaint was dismissed for failure to complete service, the Savings Statute applied and Plaintiff's second complaint was deemed timely filed.

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