Thomas v. Freeman

In Thomas v. Freeman, 79 Ohio St.3d 221, 227, 1997 Ohio 395, 680 N.E.2d 997, the Supreme Court of Ohio noted that Civ.R. 4(E) directs courts to dismiss without prejudice so as to avoid a conflict with Civ.R. 3(A)'s provision that an action is commenced if service is perfected within one year. In addition, Civ.R. 41(B)(1) states, "where the plaintiff fails to prosecute the court may dismiss an action or claim." A dismissal for lack of jurisdiction, including a lack of personal jurisdiction, operates as an adjudication otherwise than on the merits, that is without prejudice. Civ.R. 41(B)(4). A lack of personal jurisdiction can result from a failure to perfect service on the defendant. Thomas, supra 79 Ohio St.3d at 225.