OPINION
Thе plaintiff, Robin Crawford, has brought these consolidated civil actions under 42 U.S.C. §§ 1981, 1983 and 1985 for alleged violations of his civil rights. He claims to have been unlawfully arrested and beaten in Hinton, West Virginia, on October 17 and 18, 1987, by Summers County, West Virginia Deputy Sheriffs and Hinton City Police Officers, in the presеnce and with the acquiescence of the Summers County jailer.
Plaintiff filed his original suit on October 16, 1989. At that time Larry Dale Keaton, one of the defendants, was incarcerated in a federal correctional institution. The plaintiff neglected to follow the mandate of West Virginia Code, § 28-5-36, which requires appointment of a committee for a prisoner before he can be sued, and served Keaton with process at FCI Petersburg, Virginia, which was beyond the territorial limits of effective service. Keaton moved to dismiss and рlaintiff did not succeed in re-serving him until January 23, 1992, long after his release from prison. Due primarily to the transfer of the ease between judges, Keaton’s original motion to dismiss was not ruled upon.
Four days after Keaton was re-served with process, he filed, pursuant to Rules 4(j) аnd 12(b)(5) of the Federal Rules of Civil Procedure, a second motion to dismiss the complaint in the original suit on the ground that service was not made within 120 days after the complaint was filed. Crawford responded with a motion to enlarge the time for service under Rule 6(b)(2). This court granted Keaton’s motion to dismiss and denied Crawford’s motion for enlargement of time, holding that plaintiff’s failure to effect service within the original 120-day time period was neither the result of excusable neglect nor justified by good cause.'
Plaintiff then filed a separatе civil action against Keaton alone and moved to consolidate it with the original case which was still pending against the other defendants. On July 15, 1992, Keaton filed a motion to dismiss the new action, asserting that the claim is barred by the applicable two-year statute of limitations. The plaintiff argues that, although more than two years have passed since the events giving rise to his claim against Keaton, the savings statute at West Virginia Code, § 55-2-18, preserves his claim. That statute gives an additional year after dismissal to bring a new suit if the dismissal is nоt for a cause which can be pled in bar of a new action. 1
This court granted the motion to consolidate and now considers Keaton’s new motion to dismiss. Keaton argues that the savings statute does not apply for two reasons. First, there was never a suit filed in the original two-year period because no committee was appointed for Keaton as required by-West Virginia Code § 28-5-33; and, second, the dismissal of the original suit is a voluntary dismissal which renders the savings statute inapplicable.
Keaton’s argument that the original action was riot begun in time is apparently based upon the language of West Virginia Code § 28-5-36, which mandates that “[rijo action or suit shall be instituted by or against such convict after he is incarcerated_” If a suit is not properly commenced against a duly appointed committee of the incarcerated defendant, Keaton ar *836 gues, there simply is no suit. Keaton has cited no West Virginia authority to support this contention and, while scant, what authority there is does not appear to support his position.
Section 28-5-36 was construed in
Craigo v. Marshall,
All the plaintiff had to do under Rule 3 of the Federal Rules of Civil Procedure to start a suit against Keaton within the two-year period of the applicable statute of limitations was file a complaint. Although he waited until almost midnight to do so, he beat the stroke of twelve. The underlying events forming the basis of the complaint allegedly took place on October 17 and 18, 1987 — the complaint was filed on October 16, 1989. It makes no difference that the first, ineffective attempt to serve Keaton did not occur until February 8, 1990. The suit was born when the complaint was filed.
Since 1978, Rule 3 of the West Virginia Rules of Civil Procedure has, on this point, been identical to its federal counterpart. Prior to 1978, both in an earlier version of Rule 3 and in the days of common law pleading, West Virginia followed a different rule — issuance of a summons was necessary to give life to a civil action.
See, e.g., Lawrence v. Winifrede Coal Co.,
Because the rule was different prior to 1978, two cases cited by Keaton in support of his argument that the original action was not timely filed are distinguishable. In
Stevens v. Saunders,
Accordingly, the court holds that plaintiffs original civil action was begun against Keaton in a timely manner. That original action having been dismissed as to Keaton by this court, the court must now consider whether plaintiffs second civil action against Keaton is preserved by the West Virginia savings statute.
It can hardly be questioned that the law favors resolutiоn of disputes on their merits. Competing principles, such as prompt resolution of disputes and judicial economy, must give way except in compelling cases. The West Virginia savings statute, West Virginia Code, § 55-2-18, is designed to further this goal. Moreover, the savings statute is to be libеrally construed in order to effect its intended pur
*837
pose. Judge Brannon’s opinion in the early case of
Ketterman v. Dry Fork R. Co.,
The very object of the statute is to give further time for a second action when the first action is for any cause abortive, ineffectual for recovery. No matter what was the cause of the first action’s failure, no matter how bad the writ, no matter whether you call it void or voidable, it is all sufficient to save the second action.
Id.
at 609,
Shortly thereafter, the Supreme Court of Appeals of West Virginia reiterated the rule in
Tompkins v. Pacific Mutual Life Insurance Co.
It is a highly remedial statute and ought to be liberally cоnstrued for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law, from loss of his right of action by reason of accident or inadvertence ....
Id.
at 484,
More recently, Chief Judge Haynes-worth, speaking for the United States Court of Appeals for the Fourth Circuit in
Stare v. Pearcy,
Thus we are not without guidance from the Supreme Court of West Virginia, which has told us that West Virginia’s savings statute is to be liberally construed and has rejected a narrower reading of the statutes of other states.
Id. at 46.
While the savings statutе itself does not directly address the issue, a line of cases has developed in which the West Virginia Supreme Court has held that a voluntary dismissal by plaintiff of his original action takes the case out of the protection of the savings statute. Relying on these cases, Keaton contends that because plaintiff’s counsel neglected to have a committee appointed for Keaton under West Virginia Code, § 28-5-36, and failed to serve him with valid process within 120 days of filing suit, dismissal of the original action was voluntary and, as a result, the savings statute does not apply.
The West Virginia cases span a long time period and there is some difficulty in determining which types of dismissal are considered “voluntary” and which are not. These cases which speak in terms of voluntary dismissals taking cases out of the savings statute sometimes use the word neglect interchangeably with the concept of volun-tariness. However, in each case holding the savings statutes does not apply, there seems to be an element of willful abandonment of the case on plaintiff’s pаrt.
Therefore, in attempting to harmonize these decisions, this court has determined that “voluntary” dismissals should be confined to those cases in which the plaintiff has specifically or by implication abandoned his original action. That is not the case here; while plaintiff has in some respects been less than diligent, his lack of diligence never manifested, or even suggested, an intention to give up his original suit against Keaton.
In the case upon which Keaton principally relies to support his motion, and in other cases holding the savings statute does not apply, there is some indication that the plaintiff took voluntary action to give up on his original suit. In
Lawrence v. Winifrede Coal Co.,
Conversely, there are reported decisiоns of the West Virginia Supreme Court in which the savings statute was held to apply even though the- plaintiff made a mistake or lacked diligence where there was no evidence of intent to abandon the original action. An example is
Employers Fire Insurance Co. v. Biser,
Moreover, there seems to be a valid practical rationale for holding that the savings statute prevents dismissal in instances of mistake, inadvertence or simple neglect, but not where the original suit has been abandoned. The person who suffers when a suit is barred by the statute of limitations is the plaintiff. Mistake, inadvertence and neglect are more likely to be the fault of counsel than of the party. Cоnversely, in most cases of abandonment of a cause of action, the client will have participated in that decision. Thus, refusing to apply the savings statute in the former case is to punish the party for the fault of his counsel, while in the latter case we simply hold him to the consequences of his own conscious decision.
In closing, the court would add that the equities of this ease point strongly to keeping Keaton in it. If plaintiff’s allegations turn out to be true, Keaton was one of the principal perpetrators of his injuries. Keaton apparently had actual notice of plaintiff’s contentions against him as early as February 8, 1990, when plaintiff’s first attempt to serve him was made. That service was not good as a matter of law, but it placed in Keaton’s hands a copy оf the complaint containing the allegations against' him. Thereafter, Keaton, represented by the same counsel, as some of his co-defendants, participated fully through such counsel in lengthy discovery and other pretrial proceedings. Under such circumstances Keaton can hardly be prejudiced by the court’s decision to require him to go to trial.
An order denying the motion to dismiss will be entered in accordance with this opinion.
Notes
. In a section 1983 action, the federal court "borrows” the state statute of limitations and tolling statute.