Filing second, serving first

Posted Tuesday, November 27th, 2012 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

Before 2004, when SCRCP 3(a), was revised, it was strategically advantageous to serve a family court complaint as soon as it was filed.  This was because, up until 2004, SCRCP 3(a) stated that an action was “commenced” when a summons and complaint was served.

Because of this some defendants or their attorneys, if aware that a complaint had been filed but not yet served, would rush to file and serve their own family court complaint.  Because the action commenced when served, their complaint would have primacy–even though it had been filed second.  Why they preferred the primacy of being the Plaintiff is something I have not generally understood (unless they could obtain a better selection on venue by having primacy) as I prefer the advantage of observing the opposing party present his or her case in chief before I have to respond–i.e., I generally prefer representing the defendant.  However if one preferred being the plaintiff one could obtain primacy if the opposing party delayed in serving the complaint.

However SCRCP 3(a) changed in 2004.  Now an action is commenced upon the filing of the summons and complaint–as long as they are served within the statute of limitations period.   Nothing in family court has a statute of limitations.  Thus, in theory, one can wait months or even years to serve the complaint (I suspect, in practice, one would encounter a due process argument if one delayed too long in serving the complaint).  However one no longer loses primacy if the opposing party files and serves an action upon becoming aware that one has filed, but not yet served, an action regarding the same matter.

This does not prevent attorneys from sometimes rushing to file and serve an action if they discover one has already filed, but not served, a complaint.  These attorneys will then argue that the cases should be consolidated or that their case should have primacy. SCRCP 12(b)(8) should stop such nonsense. That rule allows for dismissal of an action when “another action is pending between the same parties for the same claim.”  Assuming my client wants primacy and the opposing attorney refuses to dismiss the later-filed complaint, a motion to dismiss brought under that subsection should remedy the matter.

While one cannot delay too long in serving a filed summons and complaint, there is no longer an advantage to be obtained by filing second but serving first.  Thus, unless the complaint accompanies a motion for temporary relief that needs to be served timely in order to provide timely notice, I routinely allow pro se defendants the opportunity to voluntarily accept service.

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