(a) Commencement of civil action. A civil action is commenced when the summons and complaint are filed with the clerk of court if:
(1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or
(2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.
(b) Filing In Forma Pauperis
(1) Except as provided in (2) below, a plaintiff who desires to file an action in forma pauperis shall file in the court a motion for leave to proceed in forma pauperis, together with the complaint proposed to be filed and an affidavit showing the plaintiff's inability to pay the fee required to file the action. If the motion is granted, the plaintiff may proceed without further application and file the complaint in the court without payment of filing fees.
(2) Where a party is represented in a civil action by an attorney working on behalf of or under the auspices of a legal aid society or a legal services or other nonprofit organization funded in whole or substantial part by funds appropriated by the United States Government or the General Assembly of the State of South Carolina, which has as its primary purpose the furnishing of legal services to indigent persons, or the South Carolina Bar Pro Bono Program, fees related to the filing of the action shall be waived without the necessity of a motion and court approval. Before the filing fees will be waived, the attorney representing the party must file with the clerk a written certification that representation is being provided on behalf of or under the auspices of the society, organization or program, and that the party is unable to pay the filing fees.
This amendment rewrote subsection (a), deleted subsection (b), and renumbered subsection (c) as subsection (b). These changes are intended to reflect the legislative intent expressed in § 15-3-20 as amended by 2002 S.C. Act No. 281, § 1.
This amendment added the language of (b)(2) which allows for the waiver of the filing fees for an action when a party is represented by an attorney working on behalf of or under the auspices of a legal aid society, a legal services or other nonprofit organization, or the South Carolina Pro Bono Program.
A. Introduction
A civil action in South Carolina begins with the filing and service of a summons and complaint, and Rule 5(d) requires the filing of the summons and complaint with the clerk of court before serving them on the defendant.2 The summons brings the defendant within the court's jurisdiction and gives the court the power to render a personal judgment against the person served.3 The summons also gives notice of the action and an opportunity to appear and defend which are necessary to satisfy the due process requirements in the 5th and 14th amendments to the United States Constitution.
The usual method of obtaining jurisdiction over the person is by delivering process (both the summons and complaint) to the defendant personally in the forum state. Other methods of service are discussed in Chapter 4. Once an action has been properly commenced within the statute of limitations, the statute of limitations is satisfied.4 The trial court may dismiss the complaint sua sponte, or upon motion, if the summons and complaint is not served eventually.
As noted, service accomplished any time within the statute of limitations is sufficient to commence an action. However, Rule 3(a)(2) permits service beyond the statute of limitations so long as the action is filed before the statute expires and actual service is accomplished within 120 days of filing. Thus, all plaintiffs who have filed the action within the statute of limitations have at least 120 days after filing to complete service.5 Rule 3(a)(2) does not require service of the complaint within 120 days in every case, but operates only when necessary to permit service of the action beyond the limitations period.
Under the Erie doctrine, diversity suits filed in federal court in South Carolina also begin with the filing and service of the summons and complaint.6 In a federal diversity case, Rule 3, SCRCP, not Rules 3 or 4 of the Federal Rules of Civil Procedure, governs when a civil action is commenced.7
B. Tolling of Statute of Limitations
Under Rule 3(a)(1), the action is commenced when the defendant is served with both the summons and complaint prior to the expiration of the statute of limitations. Unlike Fed. R. Civ. P. 4(m), South Carolina's rule does not provide the trial judge the discretion to extend the time period upon a showing of good cause.8 Rule 3(a)(2) permits the action to commence if actual service is accomplished "not later than one hundred twenty days after filing." Thus, filing the summons and complaint on the day the statute of limitations expired extends the time for service for up to 120 days after filing under Rule 3(a)(2).9 Actual service must be accomplished within the statute of limitations or the extended time period, if any.
South Carolina law provides for tolling the limitations period in certain circumstances. "Tolling" refers to suspending or stopping the running of a statute of limitations and is analogous to a clock stopping, then restarting.10 Tolling may either temporarily suspend the running of the limitations period or delay the start of the limitations period.11 Tolling is provided either by statute or under equitable considerations.
The Code provides for exceptions to the running of the statute of limitations when the defendant is out of state,12 or for up to five years when a person is under a disability...
