Does Civil Defendant Waive Defective Service Defense By Filing Pleadings, Motions in Case?
Frank Gliozzo v. University Urologists of Cleveland, Inc., et al., Case no. 2006-1166 8th District Court of Appeals (Cuyahoga County) ISSUE: When the defendant in a civil action includes in his initial pleading an assertion that the plaintiff failed to perfect service of the complaint, but subsequently responds to interrogatories, initiates discovery, submits motions, deposes witnesses and participates in other pretrial proceedings, does the defendant thereby waive his right to later move for dismissal of the plaintiff’s case based on the plaintiff’s failure to properly serve the defendant with the original complaint within one year after it was filed with the trial court? BACKGROUND: This case involves a medical malpractice action filed by Frank Gliozzo of Cleveland in November 2003 against Dr. Martin Resnick and University Urologists of Cleveland, Inc. In his complaint, Gliozzo alleged that in June 2002 Dr. Resnick had negligently misdiagnosed a kidney stone as a tumor, and subsequen
