One of the first things to look for when reviewing a new suit is whether the plaintiff timely filed suit. Virtually every lawsuit is governed by a statute of limitations, which establishes a time limit for filing suit in a civil case. For most tort claims in Texas, the statute of limitations is two years from the date of the incident that caused injury or damage. While it is easy to look at the date a suit is filed and tell whether it was filed within the statute of limitations, this is not the only inquiry. A suit timely filed within the statute of limitations may still be barred by limitations.
Texas courts have consistently held that filing a lawsuit does not stop the limitations period from running unless the plaintiff exercises due diligence in the issuance and service of citation, i.e. a plaintiff not only has to timely file suit, he or she also must use due diligence to serve the defendant. When a plaintiff files within the limitations period but does not serve the defendant until after limitations has expired, the service relates back to the date of filing only if the plaintiff was diligent in serving the defendant. The duty to use diligence continues from the date suit is filed until service is completed meaning a plaintiff must explain every delay in obtaining service on the defendant and be prepared to show every step taken to serve the defendant if a limitations defense is asserted. Lack of due diligence can be found as a matter of law if a plaintiff fails to offer a valid excuse for delays in obtaining service. While there is no set time as to how much time is too much, courts have upheld summary judgment for failure to explain even brief gaps of a few weeks. Some examples of failing to exercise due diligence include:
- Waiting three months after filing suit when limitations had passed to request issuance of citations and citing as the only excuse a request by the insurance adjuster for more time to evaluate the claim.
- Waiting five months after filing suit when limitations had passed to serve the defendant and offering only an explanation for why service was not attempted previously.
- Attempting to justify failure to use reasonable diligence to serve by explaining it resulted from a miscommunication between lawyers.
- Failing to explain multiple gaps between attempts to serve the defendant.
- Failing to explain 18-day delay between expiration of service and limitations.
The next time you are reviewing a new lawsuit, do not just look at the filing date and assume Plaintiff timely filed just because suit was filed before the statute of limitations ran. If suit is filed on the eve of limitations or limitations runs after suit was filed, and there is any delay in serving the defendant, the case might not be timely warranting an early motion for summary judgment.
|