The August 15, 2012 Supreme Court opinion in Mims v. Babcock Center, 399 S.C. 341, 732 S.E.2d 395 (2012), clarifies issues of civil procedure that have occasionally come up in my family law practice.
Rule 3, SCRCP, reads “A civil action is commenced when the summons and complaint are filed with the clerk of court if: (1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or (2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.” In Mims, Ms. Mims failed to serve the complaint within 120 days of filing. She later served an amended complaint. The issue became whether her failure to serve the complaint within 120 days of filing was a fatal defect.
Mims clarifies that an action does not need to be served within 120 days if the statute of limitations has not run since the action was filed. Since there are no statutes of limitation in family court, this issue never comes up there.
However Mims also clarifies that in order for an action to be commenced when filed, it does need to be served within 120 days. What this means that if two actions regarding the same issues are filed the action that is filed first only commences first if it is either served first or served within 120 days. A litigant who files an action but waits more than 120 days to serve it risks that action not having primacy.
On the issue of Rule 15(a), SCRCP, Mims clarifies that if a party fails to file a responsive pleading the other party may file one amended pleading without leave of the court or consent of the other party. The language of Rule 15(a) implied this but didn’t state this explicitly:
A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served.
I have had the issue come up when the other party has failed to file a responsive pleading and I then file an amended pleading. Since I am not filing this amended pleading within 30 days of the other party filing a responsive pleading, Rule 15(a) didn’t explicitly authorize this amended pleading. However Mims found that Ms. Mims was entitled to file an amended complaint long after the original complaint was filed because no answer had ever been filed (in Mims, the initial complaint was never even served). Thus, if no responsive pleading has been filed, one has the right to file one amended pleading at any time until the case is placed on the trial roster.
Thanks for the info about service of process.