Voluntary Dismissal No Longer a “Failure”: Wyoming Supreme Court Narrows the Savings Statute in Ellis v. Hiser (2025 WY 87)

1. Introduction

In Ellis v. Hiser, the Wyoming Supreme Court was asked whether the State’s century-old general savings statute (Wyo. Stat. § 1-3-118) gives a plaintiff an extra year to re-file an action that she voluntarily dismissed after letting it lie un-served for almost two years. The Court not only answered No; it used the occasion to overrule its own three-year-old precedent (Hugus v. Reeder, 2022 WY 13), realign Wyoming practice with federal service rules, and admonish trial courts to police delayed service more aggressively.

The decision resets Wyoming jurisprudence on three inter-locking subjects:

• What counts as a “failure otherwise than upon the merits” under § 1-3-118;
• The practical reach of Rule 3 (commencement) after its 2017 rewrite; and
• The mandatory character of the 90-day service rule in Rule 4(w).

2. Summary of the Judgment

The majority opinion by Justice Fox (joined by Justices Gray and Jarosh) affirmed the district court’s dismissal and held:

1. Section 1-3-118 applies only when the original action fails despite the plaintiff’s effort to prosecute it; a voluntary dismissal is an abandonment, not a “failure.”
2. Because Ellis voluntarily dismissed, she could not invoke the savings statute; the re-filed action—served more than five years after death—was time-barred.
3. Hugus v. Reeder (2022), which had held the opposite, was “poorly reasoned,” encouraged gamesmanship, and is now overruled.

Justice Fenn, joined by Chief Justice Boomgaarden, dissented, warning that the Court was discarding stare decisis, misreading plain statutory text, and unnecessarily constricting a remedial statute.

3. Analysis

3.1 Precedents Cited and Their Role

• Hugus v. Reeder, 2022 WY 13 – Previously held that a voluntary Rule 41(a) dismissal triggers the savings statute. Now expressly overruled.
• Hoke v. Motel 6 Jackson, 2006 WY 38 – Addressed linkage between commencement, service, and the savings statute under former Rule 3(b). Cited for historical context.
• Federal Rule 4(m) line of cases – Emphasized that federal courts routinely dismiss complaints unserved after 90 days; Wyoming courts have not.
• Out-of-state authorities – Iowa (Furnald), Indiana (Kohlman), and historical Ohio decisions rejecting savings-statute protection after voluntary dismissal; contrasted with Kansas, Oklahoma, and post-1982 Ohio decisions that support such protection.

3.2 Court’s Legal Reasoning

The majority’s textual focus was the single verb “fails” in § 1-3-118. Consulting Black’s Law Dictionary and venerable 19th-century usages, the Court insisted that “failure” presupposes an attempt to succeed. It then canvassed split authority and sided with jurisdictions that limit savings-statute rescue to dismissals outside the plaintiff’s control (e.g., venue defects, reversed judgments, service quashed, etc.).

Beyond semantics, the Court expressed systemic concerns:

• Gamesmanship & delay – By filing a complaint but purposely withholding service, a plaintiff could “warehouse” a claim, voluntarily dismiss when the two-year malpractice statute ran, then re-file and serve years later. This defeats the goals of speedy resolution and repose.
• Rule consonance – Wyoming models her rules on the Federal Rules. Federal procedure offers no analogue to Wyoming’s savings statute; thus, Wyoming plaintiffs already enjoy an extra benefit. Combining that benefit with lax enforcement of Rule 4(w), the majority said, skews the intended balance.
• Stare decisis flexibility – Citing Arnott and Smith, the Court reiterated that precedent may be revisited when “poorly reasoned” or “unworkable.” The short vintage of Hugus (three years) and its perceived mischief justified its abandonment.

3.3 Impact of the Judgment

The ruling reshapes Wyoming civil practice in several respects:

1. Savings-statute boundaries reset. Plaintiffs can no longer rely on § 1-3-118 to salvage suits they voluntarily dismiss, whether or not service ever occurred.
2. Heightened service diligence. Litigants must now treat the 90-day window in Rule 4(w) as critical; strategic delay is perilous. Trial courts are implicitly encouraged to enforce dismissals sua sponte if service stalls.
3. Litigation strategy shift. Counsel contemplating dismissal to cure pleading defects must weigh the risk that a limitations bar will fall with no statutory reprieve.
4. Medical-malpractice and wrongful-death cases. These areas, already governed by strict two-year limitations, lose a commonly invoked safety net. Risk-management carriers and hospitals gain earlier repose.
5. Legislative invitation. The dissent’s reliance on legislative inaction may spur the Wyoming Legislature to clarify § 1-3-118 if it disagrees with the Court’s restrictive reading.

4. Complex Concepts Simplified

• Savings Statute (§ 1-3-118) – A remedial law that lets a plaintiff re-file within one year if her first suit was timely and later derailed for non-merits reasons (e.g., venue, reversed judgment).
• Voluntary Dismissal (Rule 41(a)) – A unilateral act by the plaintiff, before an answer is filed, to end the case without prejudice; as if the lawsuit never existed.
• Commencement (Rule 3) – The act that stops the statute of limitations clock. Since 2017, merely filing the complaint does it; service affects jurisdiction, not commencement.
• Rule 4(w) 90-Day Service Rule – Requires service within 90 days after filing, or the court must dismiss (or extend time for good cause). Mirrors Federal Rule 4(m).
• Stare Decisis – The doctrine that courts follow prior decisions for certainty and predictability. Not absolute; may yield to clear error or unworkability.

5. Conclusion

Ellis v. Hiser marks a decisive turn in Wyoming civil procedure. By declaring that a plaintiff cannot “fail herself” into the savings statute, the Court tightens the relationship between prompt service and limitation periods, aligns state practice with federal norms, and underscores the judiciary’s intolerance for dilatory tactics. Practitioners must now treat voluntary dismissals as a one-way exit door—absent true failure, there is no statutory second chance.

Whether the Legislature will restore the broader safety net that existed under Hugus remains to be seen. For now, the message is clear: file, serve, and prosecute without delay—or risk finding the courthouse door closed.