By this time the applicable limitations period apparently had expired. Although the Oklahoma savings statute provides that the statute of limitations does not bar a refiled complaint if the original complaint was timely filed and the refiling occurs within a year of a non-merits dismissal of the original complaint, Okla. Stat. tit. 12, § 100, the second complaint did not invoke this statute.Consequently, on February 7, 2000, the City and its police chief moved to dismiss the action on the ground that the statute of limitations had run.
On September 29, 2000, the district court ruled that plaintiff would be allowed to file an amended complaint to cure his failure to invoke the Oklahoma savings statute. Plaintiff was granted fifteen days to file an amended complaint. Plaintiff missed the deadline. On January 12, 2001, the district court ordered plaintiff to file an amended complaint, or show cause for a failure to do so, no later than January 18, 2001. The order expressed the court's concern that no effort had been made to comply with its prior deadline and warned that failure to comply with the second order could result in dismissal of the action with prejudice. Plaintiff filed no pleading by the January 18 deadline.
On January 23 plaintiff filed an amended complaint accompanied by a motion to file it out of time. Although plaintiff had entered into a stipulated dismissal of defendant Goodpasture in June 2000, the amended complaint again named him as a defendant. Plaintiff’s attorney claimed his tardiness was due to
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