*1 APPEALS IN THE OF 660 COURT (1990)] 660 [96 BOCKWEG, husband, Plaintiffs GREGORY BOCKWEG CYNTHIA ANDERSON, CLARK, of the Estate H. Executrix STEPHEN G. BONNEY Perry LINK, JR., M. RICHARD HOLLAND R. B. A. STANLEY ASSOCIATES, P.A., Defendants and LYNDHURST GYNECOLOGIC No. 8921SC247 (Filed 1990) January 4 (NCI3d); Procedure § of Actions 12.2 Rules Limitation (NCI3d)— one § within 41.1 dismissal — — original suit Federal Court 1A-1, Rule of N.C.G.S. § where prejudice applied dismissal without after a action as and dismissal was court 41(a). to N.C. Rule 2d, §§ 313. Am Limitation of Actions Jur January entered 1989 in plaintiffs from Order APPEAL H. Freeman. County by Judge William Superior Court FORSYTH July 1989. Appeals Heard the Court District malpractice Plaintiffs filed a medical suit U.S. 1986. North on December for the Middle District of voluntarily stipulation on October Forsyth filed this action 1987. On October County allege Both the federal and state actions Superior Court. female damages reproductive organs. a claim for due to loss of plaintiff to dismiss on the basis that female Defendants moved Forsyth of defendants and discharged had been from care February Memorial and that statute Hospital 145(c). The court expired limitations had under G.S. summary appeal. Plaintiffs judgment. defendants’ motion for McCain, McCain,' Jr., Grover C. Law Grover C. Offices of Hamilton, plaintiff-appellants. and William R. Jr. for Elrod, P.A., E. Elrod by Joseph Tuggle, Duggins, Meschan Hall, III, Johnston, B. defendant-appellee Reed Jr. and Rachel J. for Link. APPEALS IN THE OF COURT v. ANDERSON BOCKWEG App. 660 *2 Robinson, Elster, Petree, Stephen J. Robert Stockton Anderson, Vale, appellees R. Berlin and Patrick G. for defendants’ Associates, Clark, and P.A. Lyndhurst Gynecologic Holland LEWIS, Judge. (G.S. 145(c))
Plaintiffs contend that the statute of limitations 1A-1, one-year Rule savings provision was tolled the G.S. 41(a)(1) 41. The of Rule language provides: relevant If ... is prescribed an action commenced within the time subsection, without under this new ac- prejudice may tion based on the same claim be commenced within one in judge specify after such dismissal unless shall [the his order a shorter time]. one-year savings provision
Defendants contend that the does not They since the apply brought a Federal Court. Broadnax, 313, 316, 282, 284 rely High on v. 156 S.E.2d N.C. (1967), when which ruled that the is not tolled the suit is in “another In Cobb v. brought 692, (1969), 230, 233, 166 App. 4 N.C. S.E.2d this Court subse- the to include suits quently interpreted High ruling originally sitting a Federal Court Carolina. We written under opinion High note that the was G.S. 1-25, 41 in 1969. which statute was Rule Unlike superseded 1-25, the savings G.S. Rule 41 holds that present specifically “under voluntary granted when the provision applies voluntary will when dismissal this subsection.” The statute be tolled Procedure, to the North Rules of Civil granted pursuant is Carolina in a State regardless granted of whether or not dismissal is court. one-year Rule 41 will therefore savings provision N.C. when tolled for dismissal from a Federal that dismissal
be
to
Rule 41. Since the Federal Court
granted pursuant
N.C.
whether it
dismissal
specify
pursuant
this case did not
Procedure, we
to the North
Rules of
look to federal
(W.D.N.C.
In
534 F.
guidance. Haislip Riggs,
Supp.
case law for
1981)we
clear federal
which
that a Fourth
precedent
find
establishes
will
Rule 41 in
Circuit Federal Court
dismiss
to N.C.
court,
Tomp-
like
kins,
Erie Railroad Co. v.
Haislip
following
cases.
(1938),
Trust Co.
Guaranty
304 U.S.
L.Ed. 1188
IN THE COURT OF APPEALS
N.C.
York,
(1945),
New York v.
326 U.S.
Where the Fourth previously Circuit has established that dismissal, invokes Rule 41 in granting we hold that dismissal has been granted “under this subsection” of Rule and the savings provision of has been triggered for the We purposes state court. distinguish case High before us from has, and Cobb basis that the Fourth Circuit *3 cases, since those stated that dismisses to the state rule when a right substantive is to be preserved. Haislip id. Riggs, Where the state rule was originally applied, the volun- (Rule 41) tary “under this subsection” not in “another Where the federal court has chosen uphold the substantive of our rights residents to avail themselves of the tolling provision, we will do no less. Reversed and remanded.
Judges PHILLIPS and concur. COZORT to, Even apart from the Fourth holdings Circuit referred trial court and the phrase defendants construe the “under this section,” narrowly. section” too The phrase “under this or one it, similar to appears innumerable North Carolina statutes which grant rights that can be enforced other courts. The liberal pur- pose of our rules me leads to believe that the section involved our legislature intended to permit dismissed suit to be refiled in our courts when the conditions stated the rule are complied with, and had no rational reason to intend otherwise. In this case Carolina; plaintiffs cause of action accrued under the law of North the first suit in a court with concurrent jurisdiction state; situated this have met the required conditions by both the federal and state rules and are entitled to continue with their case in accordance therewith.