Does “Tolled” Mean “Suspended” Or “Extended” In §1367(D)?

by LeClairRyan
Contact

Every day, complaints are filed in federal court with claims brought under both federal and state law. If the federal court dismisses or grants judgment on those claims that provide a basis for federal jurisdiction, it has discretion to retain or dismiss the state law causes of action.

If, however, the statute of limitations (SOL) for the state law claims expires during the pendency of the federal action, and the court elects not to retain jurisdiction, the plaintiff may be unable to pursue those claims in state court. This otherwise inequitable result is avoided by 28 U.S.C. §1367(d), which provides that:

The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

This subsection thus allows 30 days for the plaintiff to refile his state law claims in state court following dismissal by the federal court. But what happens if a plaintiff waits longer than 30 days?

Plaintiffs finding themselves in this position have argued that the phrase “shall be tolled” in §1367(d) means that the state law SOL is, effectively, suspended while the claim is pending in federal court, and that any time that remained when the federal action was filed can be used after dismissal. Several courts have accepted this argument.

But several other courts have rejected the same argument, concluding that “shall be tolled” means that an expired SOL is extended for 30 days, but no more. This article explores these differing views.

The Chess Clock Camp
Several courts have held that, if there is time remaining on the state law claim’s SOL when a federal action is commenced, that remaining time is added to the refiling period. These courts have reasoned that the SOL is like a chess clock that is stopped when the federal action is filed, and restarted once it is dismissed.

The leading case in this camp is Goodman v. Best Buy, Inc. There, the plaintiff filed his federal action on July 12, 2005, asserting federal and state law claims stemming from his termination in February 2005. The federal court granted the defendant summary judgment on the federal law claim in December 2006, and dismissed the state law claim. But the plaintiff waited more than three months to refile it, which was more than two years after the claim accrued.

Defendant moved to dismiss the state law claim, alleging it was untimely due to a one-year SOL. The trial court agreed. On appeal, however, the intermediate appellate court held that the SOL had been suspended during the federal action and that the plaintiff could use the remaining time, plus 30 days, to refile his claims in state court.[4]

The Minnesota Supreme Court agreed. It determined that the phrase “shall be tolled” in §1367(d) was susceptible to three interpretations. The first one was that all state law statutes of limitation are replaced by a 30-day fixed period. The court rejected this interpretation, finding that it was not supported by the language of §1367(d).

To continue reading, click here.

Source: Federal Bar Association

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© LeClairRyan | Attorney Advertising

Written by:

LeClairRyan
Contact
more
less

LeClairRyan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!