To help potential litigants evaluate how various executive orders may impact their filing deadlines, we examine executive orders in New York, and other select states, tolling the statute of limitations. This article also provides ideas for how litigants can obtain relief with respect to the timing of their filings in the wake of COVID-19.
In response to the COVID-19 pandemic, many states have instituted orders dramatically restricting the normal course of business, or nearly shutting it down altogether. Courts around the United States typically have not been excluded from the scope of these orders, thereby preventing judges and other court personnel from coming to work. New York, in particular, determined that it would shut its doors to new case filings, as well as all other filings in pending non-essential civil matters, while the state deals with one of the world’s largest outbreaks of COVID‑19.
While most states have kept courts open to new case filings and motion practice, potential litigants are often still burdened by stay-at-home orders that could impede or prevent parties from bringing an action or making timely filings. As a result, many potential litigants must now evaluate whether and to what extent various executive orders have impacted (or may continue to impact) their filing deadlines. On May 25, 2020, New York’s courts will be re‑opened for e-filing—including the filing of new non-essential matters. Because new matters can now begin again, below we analyze New York’s executive orders tolling the statute of limitations and provide ideas for how litigants in other states can obtain relief with respect to the timing of their filings in the wake of COVID-19. In addition, because some other states around the country similarly tolled their statutes of limitations, we provide an overview of select states to assist in analyzing statutes of limitations in jurisdictions other than New York.
I. New York
In New York, on March 20, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, directs that:
…any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, . . . or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from [March 20, 2020] until April 19, 2020.
On March 22, 2020, Chief Administrative Judge Lawrence Marks issued administrative order AO/78/20, which implemented the executive order and curtailed the receipt of filed papers by Unified Court System courts and county clerks in litigation matters. The administrative order applies to both paper and electronic filings, and extends to all trial courts.
The executive order has a widespread effect on the due dates for civil filings in New York state courts. First, the executive order applies to the commencement of new cases, thereby tolling the statute of limitations for the effective time of the executive order. This aspect of the order has garnered attention—and rightfully so—as the tolling of the statute of limitations has significant impact on the legal rights of litigants.
Second, the executive order applies to pending actions, because it tolls the “specific time limit for the . . . service of any . . . motion, or other process or proceeding,” including by an “order.” Accordingly, the executive order should be interpreted to toll any deadlines in any particular court’s scheduling orders for the period prescribed by the executive order.
Since the original issuance of Executive Order No. 202.8, Governor Cuomo extended the order two times. On April 7, 2020, through Executive Order No. 202.14, the tolling period was extended from April 19, 2020, until May 7, 2020. On May 7, 2020, through Executive Order No. 202.28, Governor Cuomo extended the tolling period from May 7, 2020, until June 6, 2020.
On May 20, 2020, Administrative Judge Marks circulated a memorandum stating that starting on May 25, 2020, “e-filing through the NYSCEF system—including the filing of new non-essential matters—will be restored in those counties of the state that have not yet met the benchmarks required to participate in the Governor’s regional reopening plan. Those counties include the five New York City counties, Nassau and Suffolk counties, and Dutchess, Orange, Putnam, Rockland, Ulster, and Westchester counties.” In other words, when coupled with the counties that met Governor Cuomo’s metrics for Phase I reopening, all New York courts are now open for filing new cases through the state e-filing system.
As of the publication date of this article (May 22, 2020), the tolling period created by these executive orders totals 78 days[OE1] . The question now becomes how this tolling period should be applied in practice, particularly now that New York courts are re-opened for e-filing. For statute of limitations questions, the analysis is fairly straightforward:
- For causes of action that accrued prior to March 20, 2020, and could have been timely filed as of that date, the litigant’s statute of limitations period is tolled for 78 days[OE2] .
- For causes of action that accrued during the March 20, 2020, to June 6, 2020, time period, the litigant’s statute of limitations period will be tolled for the number of days between the claim accrual date and June 6, 2020. For example, if a party’s cause of action accrued on May 6, 2020, then the litigant’s statute of limitations will be tolled for 31 days.
Although the effect of these extensions of the executive order are clear with respect to their impact on various statutes of limitations, there is tension between the extensions provided by the executive order and the May 1, 2020, administrative order issued by Chief Administrative Judge Marks (AO/87/20). In AO/87/20, Administrative Judge Marks detailed the expansion of New York’s virtual court operations, including the acceptance of filings in currently pending actions, as of May 4, 2020. As a result, although the executive orders direct that the tolling period on motion practice is extended until June 6, 2020, the administrative order opened the New York court system’s doors to filings that would otherwise have been tolled under the executive order.
This leaves many questions for litigants. Clearly, parties may file new motions in currently pending actions in accordance with the procedures outlined in the May 1 administrative order. But, suppose that a litigant’s opposition papers to a motion for summary judgment pursuant to CPLR 3212 were due on March 31, 2020. Does that litigant get the benefit of the entire tolling period provided for in the executive orders, such that its time to file the opposition starts counting down again on June 6, 2020? Or, because courts are now open for filings in pending actions, did that same litigant’s filing clock resume as of May 4, 2020, because the litigant can comply with a court’s scheduling order by filing papers? Further, if a party’s deadline to file a note of issue was April 15, 2020, does that litigant’s filing clock resume on May 4, 2020, or June 6, 2020?
In light of the ambiguity created by the executive orders and the May 1 administrative order, litigants should attempt to reach agreement with opposing counsel as to the appropriate deadline and file a stipulation with the applicable court. If an agreement cannot be reached, then litigants should seek guidance from the judges presiding over their matters.
We do not believe the same ambiguities are present with respect to the statute of limitations analysis discussed above, even though Administrative Judge Marks has allowed for the e-filing of new, non-essential matters as of May 25, 2020—a week before the statute of limitations tolling expires pursuant to Governor Cuomo’s executive orders. Any accrued but not filed matters are not subject to any court order, and thus, there is no possibility of tension between a court’s scheduling order and the executive and administrative orders detailed above. That said, in the event that there was less than a week left in the time prescribed by a statute of limitations when New York’s courts closed their doors to new filings, litigants would be wise to file and serve their complaints soon after May 25, 2020, to avoid any potential motion practice regarding the timeliness of the complaint.
II. Other States
Other states have responded to the COVID-19 pandemic in other ways that will impact the statute of limitations for the filing of new actions, rendering it imperative that litigants determine the impact of any COVID-19 order or other action on their deadlines. A few examples are below:
On April 6, 2020, the Judicial Council of California approved 11 emergency rules to respond to the pandemic.[OE3] (See: Emergency Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the California Rules of Court (Apr. 6, 2020), https://jcc.legistar.com/View.ashx?M=F&ID=8234474&GUID=79611543-6A40-465C-8B8B-D324F5CAE349.) Emergency Rule 9 tolls the statute of limitations for civil actions from April 6, until 90 days after Governor Gavin Newsom declares that the state of emergency related to COVID-19 is lifted. (Id.) Given the lack of dates in Emergency Rule 9, litigants will need to wait until Governor Newsom takes action to calculate the tolling period provided by the emergency rules.
On May 14, 2020, the Delaware Supreme Court issued an administrative order that, among other things, provides that the statutes of limitations and statutes of repose that would otherwise expire during the period between March 23, 2020, and June 13, 2020, are extended through July 1, 2020. (See: Supreme Court of the State of Delaware, Administrative Order No. 6 (May 14, 2020), https://courts.delaware.gov/rules/pdf/COVIDOrderCJS3.pdf.) The order does not apply to deadlines, statutes of limitations and statutes of repose that are not set to expire between March 23, 2020, and June 13, 2020. (Id.)
On March 14, 2020, the chief judge of the Supreme Court of Georgia issued an order tolling all deadlines or filings requirements—including statutes of limitations—through April 13, 2020. As of the date of this publication, the tolling date has been extended twice and most recently extended through June 12, 2020. (See: Supreme Court of Georgia, Second Order Extending Declaration of Statewide Judicial Emergency (May 11, 2020), https://www.gabar.org/upload/Second-Order-Extending-Declaration-of-Statewide-Judicial-Emergency_issued.pdf.) However, judges are granted authority to, on a case-by-case basis, re-impose specific deadlines that would otherwise be tolled by the order.
On April 27, 2020, the Massachusetts Supreme Judicial Court issued an order tolling all statutes of limitation from March 17, 2020, through May 31, 2020, effective May 4, 2020. (See: Massachusetts Supreme Judicial Court, Order in re: COVID-19 (coronavirus) pandemic (Apr. 27, 2020), https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-updated-order-regarding-court-operations-under#1-prior-orders. The order repealed and replaced the prior court order regarding the COVID-19 pandemic.)
On April 27, 2020, the Texas Supreme Court issued an order extending all service and filing deadlines—including statutes of limitations—in civil cases between March 13, 2020, and June 1, 2020, until July 15, 2020. (See: Supreme Court of Texas, Twelfth Emergency Order Regarding the COVID-19 State of Disaster (Apr. 27, 2020), https://81db691e-8a8c-4e25-add9-60f4845e34f7.filesusr.com/ugd/64fb99_b7fb85089d4942e1a20cd655117e4966.pdf.) The extension does not apply to statutes of limitation that are not scheduled to expire between March 13, 2020, and June 1, 2020. In addition, the order does not affect filing deadlines for appeals or other appellate proceedings but notes that requests for relief from existing deadlines should be directed to the presiding court and “generously granted.” (Id.)
F. Illinois and Florida
Although the highest state courts in Illinois and Florida issued orders in response to COVID-19, the orders do not toll or extend statutes of limitations.
III. Additional Considerations
It is an understatement to say that COVID-19 and the government’s response to it creates uncertainty with respect to the administration of justice. As just one example, it is unclear whether a federal court sitting in diversity would consider tolling orders controlling substantive state law in the absence of binding state case law. There is even more uncertainty about how state courts will evaluate the effect of another state’s COVID-19 tolling order. Moreover, any tolling orders issued by states only apply to state law causes of action, so statutes of limitations for federal claims never stopped running, as they are still subject to federal rules and statutes. Further, the impact of these orders is murky with respect to the fact that contracts that include the parties’ negotiated limitations periods and procedures may fall outside the scope of the tolling orders, even with the broad language.[OE4]
Finally, in states that have not enacted tolling orders in response to COVID-19, litigants should still be mindful to assert their claims in a timely fashion. Although courts may consider applying the traditional doctrine of equitable tolling in these circumstances, the doctrine is rarely applied in practice, and there has been no clear indication that complications created by the pandemic will be enough for litigants to win the argument that equitable tolling can save an otherwise stale claim. (See, e.g., Halstrom v. Dube, 481 Mass. 480, 485 (2019) (explaining that courts apply equitable tolling “sparingly” and listing cases outlining the criteria); Aguilera v. Heiman, 174 Cal. App. 4th 590, 598, 95 (2009) (“Equitable tolling requires . . . (1) timely notice to the defendant . . . (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.'”)
We will all be living with the effects of the COVID-19 pandemic for years to come. One small issue—but highly relevant to litigators and their clients—will be the impact this pandemic has on how we calculate statutes of limitation in the future. Litigants should ensure that they are up to date on orders that may impact those calculations.