Practice Tip: Foreign Statutes of Limitations

While it is best to undertake this research before filing the case, often this is not possible. If you have to file suit quickly and need to bypass a lengthy research project on the statute of limitations of a foreign state, you would be well advised to add several clauses that may help deflect a motion to dismiss on the grounds of statute of limitations. For example, you should plead that “this case is brought within the allowable time period permitted by the statute of limitations of [the jurisdiction where the cause of action accrued] as well as the limitations period allowed by [the forum state.]” In some cases the complaint, on its face, will raise a statute of limitations defense. This may arise where the pleading alleges a recent injury caused by the use of a product many years ago. Some states require what we call an “ excuse” pleading as to why the action was not filed within the permissible period. For example, jurisdictions that have enacted a date-of-discovery statute may require the pleading to allege that it was scientifically impossible, until after the statute ran, to know that the plaintiff's injury could be caused by the product. A court, faced with a motion to dismiss for failure to plead such an “excuse,” will probably be more inclined to permit an amendment to the complaint if it already contains the pleading we recommend.

Estoppel

Another clause that should be added to the complaint on behalf of an out-of-state plaintiff is one for estoppel. Most jurisdictions prohibit a defendant from using a statute of limitations defense if it engaged in some conduct, negligent or willful, that caused the plaintiff to delay filing the case. If the complaint alleges that “in the event this action is filed outside the permissible statute of limitations, plaintiff alleges that defendant engaged in negligent or willful misconduct that caused plaintiff to delay his filing such that defendant should be estopped from pleading and using the statute of limitations as a defense to this lawsuit.” While the particularities of the estoppel may be required to be pled, a judge would likely be inclined to permit an amendment to include them.

Multi-District Litigation Orders

Many times, mass tort product liability actions are transferred pursuant to a Multi-District Litigation (“MDL”) order. There appears to be more flexibility by MDL judges in allowing amendments to pleadings in such transfers. In any event, many of these cases do not require amendments unless and until such cases are chosen for “advanced discovery,” in which case depositions will reveal the case-specific facts underlying the often complicated issues of foreign statutes of limitations.

Conclusion

Thus, to obviate the sleepless nights lawyers endure when motions to dismiss are pending, include the recommended clauses concerning limitations periods in your complaints.

Lawrence Goldhirsch and David Rosenband work in the Mass Torts Section of Weitz & Luxenberg, New York.

When you file a suit on behalf of an out-of-state plaintiff, the state in which you file may have a borrowing statute. This type of statute usually prevents forum shopping by requiring the out-of-state plaintiff to file his case in the forum state within the statute of limitations permitted by his home state. If the home state's limitations period is longer than the forum's limitations period, then the forum limitation period applies. In essence, the plaintiff's claim must be timely under both the home and forum limitations period. However, it is not enough solely to look at the statute of limitations of the home and forum states as there may be tolling statutes or provisions that apply to the case.

Unless the attorney researches what is usually a complicated issue, he will not be aware at the outset of the case as to what the plaintiff's home state limitations period is. It is not enough to look up the time in which to file a negligence case, often found in tables covering the 50 states, as many states now have enacted special product liability acts that limit such cases when sounding in strict liability in tort or warranty. In order to see if your client's case is timely, you would also have to research the applicable tolling rules, such as absence from the state or date of discovery of the injury rules, all of which may toll the applicable limitations period. Additionally, some states have consumer fraud statutes permitting causes of action for personal injury and those may have yet another limitations period.

Adding clauses

While it is best to undertake this research before filing the case, often this is not possible. If you have to file suit quickly and need to bypass a lengthy research project on the statute of limitations of a foreign state, you would be well advised to add several clauses that may help deflect a motion to dismiss on the grounds of statute of limitations. For example, you should plead that “this case is brought within the allowable time period permitted by the statute of limitations of [the jurisdiction where the cause of action accrued] as well as the limitations period allowed by [the forum state.]” In some cases the complaint, on its face, will raise a statute of limitations defense. This may arise where the pleading alleges a recent injury caused by the use of a product many years ago. Some states require what we call an “ excuse” pleading as to why the action was not filed within the permissible period. For example, jurisdictions that have enacted a date-of-discovery statute may require the pleading to allege that it was scientifically impossible, until after the statute ran, to know that the plaintiff's injury could be caused by the product. A court, faced with a motion to dismiss for failure to plead such an “excuse,” will probably be more inclined to permit an amendment to the complaint if it already contains the pleading we recommend.

Estoppel

Another clause that should be added to the complaint on behalf of an out-of-state plaintiff is one for estoppel. Most jurisdictions prohibit a defendant from using a statute of limitations defense if it engaged in some conduct, negligent or willful, that caused the plaintiff to delay filing the case. If the complaint alleges that “in the event this action is filed outside the permissible statute of limitations, plaintiff alleges that defendant engaged in negligent or willful misconduct that caused plaintiff to delay his filing such that defendant should be estopped from pleading and using the statute of limitations as a defense to this lawsuit.” While the particularities of the estoppel may be required to be pled, a judge would likely be inclined to permit an amendment to include them.

Multi-District Litigation Orders

Many times, mass tort product liability actions are transferred pursuant to a Multi-District Litigation (“MDL”) order. There appears to be more flexibility by MDL judges in allowing amendments to pleadings in such transfers. In any event, many of these cases do not require amendments unless and until such cases are chosen for “advanced discovery,” in which case depositions will reveal the case-specific facts underlying the often complicated issues of foreign statutes of limitations.

Conclusion

Thus, to obviate the sleepless nights lawyers endure when motions to dismiss are pending, include the recommended clauses concerning limitations periods in your complaints.

Lawrence Goldhirsch and David Rosenband work in the Mass Torts Section of Weitz & Luxenberg, New York.