(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.
Notes:
This Rule 3(a) eliminates the seldom used practice of commencing an action by serving the summons without complaint, and preserves the new requirement for prior filing with the clerk of court. Rule 3(b) preserves the statutory procedure available under Code § 15-3-10, with the added requirement that actual service must be accomplished in a reasonable time, which the cases have implied.
Note to 1994 Amendment:
The heading of Rule 3(b) is amended to reflect the Supreme Court's decision in Garner v. Houck, 312 S.C. 481, 435 S.E.2d 847 (1993). Rule 3(c) provides a uniform method for presenting in forma pauperis petitions to the court that seek the waiver of filing fees. The rule does not provide a standard for ruling on the petitions.
Note to 2004 Amendment:
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.
Note to 2011 Amendment:
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.
Annotations Rule 3
3(a)
120 Days to Serve If Limitations Period Expired In amending Rule 3(a), SCRCP, this Court recognized that the legislative intent in amending section 15-3-20(B) in 2002 was to provide a safety net for cases where filing of the summons and complaint occurs near the end of the statute of limitations and service is made after the limitations period has run. The statute and the rule, read together, provide that (1) an action is commenced upon filing the summons and complaint, if service is made within the statute of limitations, and (2) if filing but not service is accomplished within the statute of limitations, then service must be made within 120 days of filing....ln amending Rule 3(a), SCRCP, this Court clearly stated the 120-day period begins running from the filing of the complaint, not after the end of the statute of limitations period.... Mims ex rel. Mims v. Babcock Center, Inc., 399 S.C. 341, 346, 732 S.E.2d 395, 397-98 (2012).
As evidenced by the transpicuous language in both Rule 3 and section 15-3-20, service must be completed within 120 days of the filing of the complaint if service is not completed during the limitations period. Hooper v. Ebenezer Senior Services and Rehabilitation Center, 377 S.C. 217, 229, 659 S.E.2d 213, 219 (Ct. App. 2008), reversed 386 S.C. 108, 687 S.E.2d 29 (2009).
120 Days Inapplicable if No Limitations
The 120-day period only has relevance if service is accomplished outside of the statute of limitations. When service occurs outside of the statute of limitations it must occur within 120 days of filing the complaint. Mims ex rel. Mims v. Babcock Center, Inc., 399 S.C. 341, 347, 732 S.E.2d 395, 398 (2012).
Administrative Review
"An action for judicial review is one properly brought in the court of common pleas although it is by petition pursuant to Section 1-23-380(b) and not by summons and complaint." McDowell v. S.C. Dept. of Social Services, 304 S.C. 539, 543, 405 S.E.2d 830, 833 (1991).
Commencement
Under Rule 3 of the South Carolina Rules of Civil Procedure, a civil action is generally deemed commenced by filing and serving a summons and complaint. Rule 3(a), SCRCP. Under this rule, both filing and service are required to institute an action. Kiriakides v. School Dist. of Greenville County, 382 S.C. 8, 21, 675 S.E.2d 439, 446 (2009).
"Under Rule 3(a), SCRCP, a civil action is commenced by the filing and service of a summons and complaint. Service of the...
