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Let’s explore the saving statute and how it comes into play. The plaintiffs’ attorney may not know if the case is viable in complex cases until after discovery. Conduct a preliminary evaluation, so you have reasonable cause to file the lawsuit, but you don’t know what the documents will show until you conduct some discovery. If you find you do not have a case, you need to advise the client properly, and one option would then be to move to dismiss without prejudice. Defense attorneys usually will not oppose such a motion. This option may also be available when you are up against a hard deadline that is impossible to meet. Although not all states have one, many states have a savings statute. The statute generally provides that when any claim is commenced with the statute of limitations and is dismissed without prejudice, the plaintiff may commence a new action if done within the relevant period. The saving statute period in Kansas is six months, and Missouri and Arkansas have one year. (see the statutes below) I have included a dismissal order below, which can be used when the plaintiff’s attorney agrees with the defendants to dismiss without prejudice. Most of the time, the judges will insist that the discovery conducted will be used in the new suit

You Must Be Careful

You must be careful about what it means to commence a lawsuit; filing is not enough. Most of the time it will require filing and serving the defendants within the time set out in the service of process statutes.

The timing of a Motion to dismiss without prejudice is vital to note. A dismissal without prejudice is often not allowed after filing a Motion for Summary Judgment.

The saving statute would apply in Kansas even if the first action were not filed in a Kansas state court, abrogating a previous case to the contrary. See Seaboard Corp. v. Marsh Inc, 295 Kan. 384.

The Statutes

1. Kansas

The Kansas statute provides:

60-518. New action, when

If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.

Kan. Stat. Ann. § 60-518 (West)

2. Missouri

The Missouri statute provides:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him.

Mo. Rev. Stat. Ann. § 516.230 (West)

3. Arkansas

The Arkansas statute provides:

(a)(1) If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.

(2)(A) However, if after judgment for plaintiff the judgment is reversed on appeal or writ of error and the cause is remanded for another trial, the mandate shall be taken out and filed in the court from which the appeal is taken within one (1) year from rendition of the judgment of reversal.

(B) Otherwise, the cause shall be forever barred.

(b) If the cause of action survives to the plaintiff’s heirs or to his or her executors or administrators, they may in like manner commence a new action or take out a mandate within the time allowed the plaintiff.

Ark. Code Ann. § 16-56-126 (West)


Here is a form for an Order of Dismissal without Prejudice:


Now, the Court takes up for consideration Plaintiffs Unopposed Motion for Voluntary Dismissal Without Prejudice. Having reviewed said motion and being otherwise duly advised on the premises, the Court finds that the motion out to be and is SUSTAINED and Plaintiffs cause of action is hereby dismissed without prejudice in its entirety, each party to bear their own costs and attorney’s fees.

If permitted by law, the Plaintiff may refile this action, however it is the Order of this Court that: 1) such action must be filed in this District Court and 2) all answers to interrogatories, responses to requests for production of documents, all depositions taken, and any other discovery conducted in this action may be used by either party in any refiled action just as though such discovery was conducted in such refiled action.


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